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 UNIVERSITY 
 
 LIBRARY 
 
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Cornell University Library 
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 GAYLORD 
 
 
 
 PRINTED IN U.SJ\. 
 
Cornell University 
 Library 
 
 The original of tliis book is in 
 tlie Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924032635355 
 
CONTENTS. 
 
 Editor's Introduction 
 
 Hamilton's Syllabus of "The Federalist," 
 
 Madison's Account of "The Federalist," 
 
 Editor's Table of Contents of "The Federalist," 
 
 Hamilton's Table of Contents of "The Federalist,' 
 
 Hamilton's Preface to " The Federalist," . 
 
 The Federalist 
 
 Appendix, 
 
 Articles of Confederation, 1781, 
 \/the Federal Constitution, 1787-1789, 
 Amendments Thereto, 1789-1870, .... 
 Amendments Proposed by Massachusetts, 1788, 
 Amendments Proposed by South Carolina, 1788, 
 amendments Proposed by New Hampshire, 1788, 
 Amendments Proposed by Virginia, 1788, . 
 Amendments Proposed by New York, 1788, . 
 Amendments Proposed by North Carolina, 173s, 
 Jefferson's Opinion on a National Bank, 1791, 
 Hamilton's Opinion on a National Bank, 1791, . 
 Kentucky Resolutions of 1798, 
 Virginia Resolutions of 1798, .... 
 Jefferson's Proposed Louisiana Amendment, 1803 
 Abstract of Decision in Case of Marbury vs. Madison, 1803, 
 Amendments Proposed by Hartford Convention, 1814, 
 
 Missouri Compromise, 1820 
 
 South Carolina Ordinance of Nullification, 1832, 
 
 Jackson's Nullification Proclamation, 1832, 
 
 Abstract of Dred Scott Decision, 1857, . 
 
 South Carolina Ordinance of Secession, i860. 
 
 South Carolina Declaration of Independence, 
 
 Crittenden's Amendments, 1861, 
 
 Peace Conference Amendments, 1861, 
 
 Constitution of the Confederate States, 1861, 
 
 Act Creating Electoral Commission, 1877, 
 
 Abstract of Decision in Third Legal Tender Case, 1884, 
 
 Index, 739 
 
 i860, 
 
 PAGE 
 
 vii 
 xliii 
 xlix 
 li 
 
 Ixxiii 
 
 Ixxvii 
 
 1-588 
 
 589 
 
 591 
 598 
 621 
 632 
 633 
 633 
 635 
 639 
 646 
 651 
 
 6SS 
 679 
 6B4 
 686 
 686 
 687 
 689 
 6go 
 692 
 508 
 7" 
 711 
 716 
 718 
 720 
 732 
 736 
 
INTRODUCTION. 
 
 The constitution of the United States has been the sub- 
 ject of great and often inordinate eulogy, much as if it 
 contained withij^tself some potency or charm, which 
 gave to it especial, even magical, powers for the attain- 
 ing of good government. As the Germans worship the 
 concept of "the state" as something more and better 
 than the people, so the constitution has been accepted as 
 the spring of all our freedom and success. Yet a very 
 limited study of history serves to prove that liberty and 
 good government have been obtained by certain other 
 nations possessing no such fundamental contract, and 
 that still others, closely conforming their constitutions 
 to ours, have only succeeded in establishing a model 
 government in theory but a tyranny in fact. In short, a 
 written constitution is nothing but ink and paper, ex- 
 cept for what the people it nominally controls add to it.' 
 Over and over again our government has been saved from 
 complete breakdown only by an absolute disregard of 
 the constitution, and most of the very men who framed 
 the compact would have refused to sign it, could they 
 have foreseen its eventual development. 
 
 What then, it will be asked, is the use of a written con- 
 stitution, when it can be so disregarded and so extended? 
 If a government grows and changes with the nation 
 it pretends to control, why seek to bind the people at 
 all? Why attempt to limit the power of the newest 
 law of Congress by the oldest law of the nation? In 
 Great Britain the government is checked only by public 
 
 ' " I hold, with Montesquieu, that a government must be fitted to 
 a nation much as a coat to the individual ; and consequently that what 
 may be good at Philadelphia, may be bad at Paris, and ridiculous at 
 Petersburgh." — Hamilton, ijqg. 
 
Vlll INTR0DUC7V0JV. 
 
 opinion, and the latest act of parliament is the law of the 
 land. Is not the latter more free than the former? 
 
 More free but less stable, we answer; more power to the 
 majority and less privilege to the whole people. In this 
 condition rests the great distinction of the constitution 
 of the United States. History Ifes often recorded the 
 grant of rights or privileges to subjects by kings or by 
 aristocracies or by minorities.' But the federal compact 
 was the first deliberate attempt and assent of a majority to 
 tie its own hands; to give to the m'^rity guarantees 
 of fair and equal treatment, without which democratic 
 government is well-nigh impossible, save when developed 
 along the lines of socialism. Our state governments, 
 in which few such guarantees have been successfully 
 evolved, have again and again oppressed the minority; 
 but, with hardly an exception, the national government 
 has been true to its purposes. Where the state govern- 
 ments have been unchecked by the national; where they 
 have had omnipotent powers, they have directly or indi- 
 rectly robbed classes of their citizens for the benefit of 
 other classes, and committed other wrongs in the name 
 and by the will of the majority. Not long since New York 
 state, one of the fairest and least prone to discrimination 
 in the Union, by law has decreed that a minority of 
 its citizens shall be made to contribute, by means of an 
 inheritance tax, the larger part of the government 
 revenues; so in Great Britain the majority have success- 
 fully, through a graded succession tax, placed undue 
 burdens upon the minority; and in neither have the 
 minority the slightest recourse, unless that of expatriation 
 can be considered such. But in our national govern- 
 ment the most distinct limitations have been fixed, and 
 when recently, in the income tax of 1894, the majority 
 endeavored to tax the minority, while exempting 
 themselves, the law was annulled, because it was uncon- 
 stitutional. 
 
 This guarantee to the minority in the federal constitu- 
 
 ' Instanced in Magna Charta and the French Bill of Rights of 1789. 
 
INTRODUCTION. IX 
 
 tion is one of the most remarkable examples of self-con- 
 trol in history, and constitutes its chief claim to •jjre- 
 eminence. The explanation of its origin can only be 
 obtained by a history of the years preceding its framing. 
 
 In the colonial period the law-making power in the 
 provinces was placed iir the hands of popular assemblies; 
 the execution of those laws, or their negation, in the 
 hands of colonial governors appointed by Great Britain, 
 with a second veto by the king in council; and the con- 
 struing of those l^s was confided to judges, likewise for 
 the most part named by the sovereign, with a final appeal 
 from the local courts to the courts of the Privy Council.. 
 Thus the people were from early times accustomed to 
 popular legislation, controlled first by a negative of their 
 local executive and courts, and ultimately by a supreme 
 national executive and courts. The laws of parliament 
 overrode a colonial statute, the king's veto killed a law 
 assented to by the king's governor; and the courts of the 
 Privy Council reversed the decisions of the provincial 
 courts. 
 
 The American Revolution destroyed this system and 
 brought into existence in its stead government by 
 popular committees or conventions; and as the cities 
 were mostly loyal to the crown, and during the war 
 were largely held by the British, — thus excluding their 
 citizens from influence in these popular bodies, — the pro- 
 visional governments were controlled by the landholding 
 classes. Remembering with hatred the alien checks on 
 the popular will which the king's negative and courts had 
 so often, and sometimes with cruelty, imposed on the 
 people, when these representative bodies came to frame 
 new governments they practically lodged all powers in the 
 legislative department, — hitherto the only one which 
 had approximated to the people's will, — and made the 
 executive and judicial branches its creatures. 
 
 Unchecked by the balance usually supplied by manu- 
 facturing or commercial interests, the landholding 
 classes, by their legislatures, in turn unchecked by co- 
 ordinate departments, ran riot. Paper money and tender 
 
X INTRODUCTION. 
 
 laws robbed the creditor, regrating and anti-monopoly acts 
 ruined the trader. When the weak state courts, true to the 
 principles of justice, sought to protect the minority, the 
 legislatures suspended their sitting, or turned the judges 
 out of ofifice. The general government, called into exist- 
 ence by the articles of confederation, which had been 
 modeled on the Batavian and Helvetic constitutions,' was 
 but a legislative dependent of the state legislatures, with 
 scarcely a shadow of executive or judicial power, and was 
 therefore equally impotent to protect^ For the moment 
 a faction of agriculturists reigned supreme, and to the 
 honest and thoughtful, democracy seemed to be digging 
 its own grave, through the apparent inability of the 
 majority to control itself. 
 
 Fortunately injustice to, and robbery of, fellow-citizens, 
 eventually injure the wrong-doer as well as the wronged. 
 A time came when the claims of the creditors had been 
 liquidated and the goods of the traders had been con- 
 fiscated, and the former refused further loans and the 
 latter laid in no new stocks. The capitalist and the mer- 
 chant were alike ruined or driven from business, and it 
 was the landholder, unable to sell, to buy, or to borrow, 
 who was the eventual sufferer. Such was his plight that 
 he could not in many cases sell even enough of his 
 products to get the money to pay his annual taxes," and 
 this condition very quickly brought home to his own 
 instruments of wrong-doing, the legislatures, the evils 
 they had tried to fasten on the minority. Taxes were 
 unpaid, and, except where the conditions were factitious, 
 the state treasuries became empty. Finally, in an 
 attempt to collect the taxes in Massachusetts, a formi- 
 dable revolt of tax-payers against the state government 
 was precipitated. Everywhere the state legislatures had 
 become objects of contempt in just so far as they had 
 
 ' Inaugural address of John Adams, 1797. 
 
 ^ ' ' What numbers of fine cattle have returned from this city [New 
 York] to the country for want of buyers? What great quantities of 
 salted and other provisions still lie useless in the stores? To how much 
 below the former price is our corn and wheat and flour and lumber 
 rapidly falling?"— ^ijA«yoj', in " Pamphlets en the Constitution" '^^. 
 
INTRODUCTION. XI 
 
 sinned against classes of citizens, and the people were 
 threatened with a breakdown of all government, by the 
 misuse of majority power. It has been the fashion of 
 historians to blame the Congress of the Confederation 
 with the ills of 1781-1789, but that was an honest, and, 
 when possible, a hard-working body, and the real culprit 
 was not the impotent shadow of national government, 
 possessing almost no powers for good and therefore 
 scarcely any powers for evil, but the all-powerful state 
 legislatures, which^proved again and again, as Jefferson 
 asserted, that "one hundred and seventy-three despots 
 would surely be as oppressive as one." ' 
 
 The revolt of Shays, and the less aggressive but uni- 
 versal discontent against the state governments were 
 protests too loud spoken not to warn the legislatures of 
 their own peril, and in a frightened, half-hearted way, they 
 one by one gave their consent to the assembling of a con- 
 vention to plan such changes in the articles of confed- 
 eration as should at least give to the state governments 
 a national protection from their own citizens." Accord- 
 ingly, in June, 1787, a body of the most earnest and 
 experienced men gathered in Philadelphia and set about 
 the task of framing a new national government. 
 
 Not a few of the members of the federal convention 
 had been sufferers by the injustice of state laws,' and 
 they were prepared to apply the knife deeply to the 
 malady of the body politic. Indeed, those who had but 
 a few years before started out as strong democrats had 
 re-acted. Dread of the people and dread of democratic 
 ■government were felt by all those who did not draw the 
 
 ■" Notes on Virginia," 157. 
 
 ' It was fear that Shays's revolt would spread to witliin the borders of 
 its own state that made the New York legislature vote the call for the 
 federal convention, and the fright it gave Massachusetts was the cause 
 for the assent of her assembly to what it had negatived but a few months 
 before. 
 
 ' As an example, Washington had bonds and mortgages to ' ' nigh 
 ;^io,ooo " paid off in depreciated paper money, worth at times as little 
 as 2/6 in the pound, and when he attended the federal convention, he 
 was in arrears for two years' taxes through having been unable to sell the 
 products of bis farms. 
 
Xll INTRODUCTION. 
 
 distinction between popular control and majority control, 
 between limited and unlimited governments. 
 
 From this fear of populace and of state governments, 
 qualified by the necessity of framing a government which 
 should be based on both, came certain clauses of the con- 
 stitution the convention framed, which made it the instru- 
 ment it is. The legislature or Congress was split into 
 two bodies, that each might act as a check on the other, 
 and strong executive and judicial departments were 
 created, armed against the legislative by the once hated 
 royal powers of appointment, veto, and annulment, that 
 they might maintain their independence of the lawmak- 
 ing branch, and even limit its power. Having split the 
 Congress, the lower branch was given to the people, while 
 the upper was given to the state legislatures, thus oppos- 
 ing a barrier to the will of the state governments in the 
 House and to the will of the people in the Senate. Not 
 daring to trust either people or legislatures to choose a 
 president, a select body of citizens was created, to whom 
 the choice of that official was assigned, thus making a 
 second defense from the populace or state legislatures. 
 To the President was given the appointment of the 
 judiciary, thus removing that department, by a second 
 selection, three degrees from popular choice or influence. 
 Roger Sherman's plea to the convention that " the 
 people should have as little to do as may be about the 
 government" seemed fulfilled. 
 
 But the minimizing of popular control was only half 
 the restraint that the convention had to create. The 
 powers of the state legislatures, as the tools of the 
 majority, must be also curtailed, or they would en- 
 croach on the general government as they had on their 
 own. The laws of the nation were made, as the parlia- 
 ment laws once were, superior to state laws. Power after 
 power was swept from the states: they could keep no 
 troops or navy; they could not coin money, emit bills 
 of credit, or pass tender laws; they could not enact bills 
 of attainder, ex post facto laws, or laws impairing the 
 obligation of contract. Such were the chief limitations. 
 
INTRODUCTION. xiii 
 
 but many minor ones swelled the list. The dread of the 
 legislative branch was so strong that Congress itself, 
 balanced and checked though it was to be, was restrained 
 from certain legislation. The misuse of power by the 
 state legislatures had ended, as it alvJays does, in loss 
 of power. 
 
 To ask a majority to limit their law-making ability, 
 both in their state and national legislatures, so that they 
 could no longer abuse the minority, and to ask them to 
 part with the direct delegation of three-fourths of the 
 general government, was a daring proposition. The 
 state officials, as the creatures of the legislatures, were 
 naturally opposed to it; while nothing but the previous 
 abuses from which the country was still suffering would 
 ever have made it possible that the constitution would 
 have been accepted by the majority; and even those 
 were insufficient to make the people take the new consti- 
 tution readily. ' Much argument and many devices were 
 needed in most of the states to obtain its ratification. 
 To aid in its adoption The Federalist was written, and 
 of that nine-months' campaign it was a distinct factor. 
 
 * 
 
 How far the government thus drafted and thus com- 
 mented upon has fulfilled the intention of the men who 
 framed it in the federal convention and the predictions 
 of the men who analyzed it in The Federalist, could be 
 reviewed at much length, but only a few results need 
 be touched upon. 
 
 There can be no question that the'rfational govern- 
 ment has given to the minority a greater protection than 
 it has enjoyed anywhere else in the world, save in those 
 countries where the minority is a specially privileged 
 aristocracy and the right of suffrage is limited. So 
 absolute have property rights been held by the Supreme 
 Court, that it even, by the Dred Scott decision, in effect 
 made the whole country a land of slavery, because the 
 
 ' John Quincy Adams said that the constitution was " extorted from > 
 the grinding necessity of a reluctant nation." 
 
XIV mTRODUCTION. 
 
 slave was property, and the rights of property were 
 sacred. Once only, by the third legal-tender decision, 
 has the court markedly failed in the chief purpose for 
 which it was created, and this failure is the more ex- 
 traordinary, for none knew better than the judges that it 
 was to prevent just such outrages as fiat money that the 
 national government was created, and that the very 
 words "legal tender," except as applied to intrinsic 
 money for commercial and legal convenience, are a lie 
 and a fraud, through which someone is to be robbed. 
 To allege that the " right to make notes of the govern- 
 ment a legal tender" has been deemed "one of the 
 powers of sovereignty in other civilized nations," which 
 were the grounds on which the decision was based, was 
 to place our national government on a par with those 
 which have notoriously been planned for the benefiting 
 of some at the expense of others, and to destroy the 
 very pledge of justice that the majority gave to the 
 minority in 1788. The pride of this country has been 
 that elsewhere the majority or the minority, depending 
 on the degree of power enjoyed by each, has abused the 
 other, but that here they were equal before the law. 
 
 In its secondary function, of protecting the minority 
 from the state legislatures, the general government, 
 wherever it possessed jurisdiction, has been equally 
 successful. By the eleventh amendment the power of 
 citizens to sue a state in the national courts was forbid- 
 den, and this has allowed state governments to repudiate 
 and in other ways rob, as of old, but wherever the juris- 
 diction of the Supreme Court has reached, it has honestly 
 and fearlessly protected the minority from the majority. 
 This has at moments produced intense feeling against 
 the national judiciary by the states, and between 1818 and 
 1832 a long series of legal conflicts took place, leading 
 to many protests by the state legislatures. But though 
 the state governments successfully resisted in a few 
 cases the mandate of the court, the advantage was only 
 temporary, and to-day no state dares to resist, however 
 much it may question, a decision. 
 
INTRODUCTION. XV 
 
 Turning from the question of how far the main pur- 
 pose of the national government has been achieved, we 
 meet the question of how far the constitution has fulfilled 
 the intention of its framers, as regards the government it 
 established. 
 
 The object of the framers was to create three separate 
 and distinct departments, so balanced as to powers and 
 force that they should be safe from each other. Time 
 has shown that they succeeded. In 1801-03 the legis- 
 lative and executive branches united in an attack on the 
 judiciary, removing judges appointed for life, and even 
 suspending the sitting of the Supreme Court, but with- 
 out permanent results, and the judiciary maintained 
 its power and independence. During the Civil War the 
 President by his assumption of " war powers " reduced 
 the power of Congress materially, but when the necessity 
 was passed, it was found that the legislative branch 
 had lost no real prerogative. In 1867 Congress sav- 
 agely attacked the President, but the Executive influence 
 and strength suffered no diminution. 
 
 By the division of the Congress into two chambers, 
 so that both a majority of the people and a majority of 
 the states should be necessary for legislation, it was 
 hoped that both the people and the state governments 
 would be protected from national encroachment, and this 
 end has been realized. Its secondary purpose of act- 
 ing as a check on hasty and unnecessary law-making 
 has likewise been fulfilled. At moments the diverse 
 composition of the two bodies has resulted in material 
 disagreements, which have produced angry controversies. 
 For the time these have put one of the branches out of 
 public favor, and usually this has been the Senate — which 
 was inevitable, since its very purpose was to check the 
 will of the majority of the people. Eventually, however, 
 accord has always been obtained, and in looking back 
 over a hundred years of Congressional legislation the 
 disagreements are found to have had very little influence 
 on our history. 
 
 Both . Houses of Congress have made continual at- 
 
XVI INTRODUCTION. 
 
 tempts to rob the President of the power of appointment, 
 and whenever that official has been the "favorite son" 
 of political machines, or has sought to influence the 
 action of Congress on legislation, they have to an ex- 
 tent succeeded; so far indeed as to lead members of 
 Congress to this day to assert the right of selecting local 
 officials; but whenever the President has been a man of 
 strength, he has refused to recognize this claim. Such 
 action has usually produced antipathy in Congress to the 
 President, and the Senate has sometimes, in irritation, 
 negatived Presidential nominees, but otherwise the legis- 
 lative department is helpless, and every President who 
 has selected his own officials has added distinctly to his 
 popularity with the people, if not with the politicians. 
 Fortunately the steady extension of the civil-service 
 laws promises shortly to remove this bone of contention. 
 -^Though the fathers' fear of a coalition of the small 
 states in the Senate has not been realized, something 
 akin to it has developed by the rapid admission of new 
 states. As a result, by "holding-up" or "dickering" 
 over legislation, the senators of this coalition of small 
 states, though representing an inconsiderable minority of 
 the whole people, have succeeded in placing laws on the 
 statue books that were not for the best interests of the 
 country. This evil is purely temporary, and will pass 
 with the growth of population in the new states. 
 
 A second defect in the Senate, due to the fact that it is 
 a delegated body, and therefore not directly responsible 
 to the people, has been its tendency to extravagance, 
 and in this body all class legislation, whether bounties, 
 pensions, protective duties, internal improvements, or 
 railroad grants, finds its warmest advocates, if not its paid 
 attorneys. This has produced a constantly recurring dis- 
 cussion as to whether it would not be best to make it a 
 directly elective body by the people of each state. 
 
 The method of choosing the President has proved 
 hopelessly inoperative. The wish of the framers was 
 that the electoral college should select a president for 
 the people, but the people would none of it, and have 
 
INTRODUCTIOM. xvil 
 
 always insisted upon voting for a president and not for a 
 proxy. The result has been that the president, being the 
 only part of the government for whom the whole people 
 vote, has absorbed by far the greater part of govern- 
 mental popularity, and is to-day, in most people's minds, 
 the dominant figure in the national government. Cer- 
 tainly the past goes to show that popular choice has on 
 the whole been safer than selected choice could ever 
 have been, for the Presidents chosen by the people have 
 been successful, while those brought forward by politicians 
 have been failures. Another illuminating fact is that the 
 Vice President is always the choice of the politicians, 
 the people taking little interest in the selection of that 
 official ; and his almost invariable failure is equally well 
 known. 
 
 As the method of choosing the President has proved 
 wholly inoperative, so too it has proved markedly inef- 
 ficient. Twice it has bi-oken down to an extent that has 
 threatened the safety of the government, and twice it has 
 placed in office men not fairly elected, thus defeating the 
 will of the people. The Electoral College has lost its 
 object, and only endangers the country in every Presi- 
 dential election. An amendment to the constitution, 
 doing away with it, and making the President elected by 
 the people, is the most necessary revision the compact 
 needs. 
 
 The President has not, as even the convention feared 
 he might, endeavored to make himself king or dictator; 
 he has not even made any marked attempt to perpetuate 
 himself in office. In moments of necessity he has over- 
 ridden the constitution and usurped such powers as he 
 deemed necessary, but never with the object of personal 
 aggrandizement or injury of the people. Nor can there 
 be any question that the Presidents who have so acted, 
 have done it with reluctance, and were the first to end 
 the exercise of such extra-constitutional sway, when the 
 conditions allowed. If American democracy had done 
 nothing else, it would have proved its right to fame by 
 the fact that it has chosen twenty Presidents, not one of 
 
Xvni INTRODUCTION. 
 
 whom has attempted to subvert the government or to 
 override the will of the people in any essential point. 
 This is the more remarkable as five of these Presidents 
 were chosen because of conspicuous military service. 
 
 But the d istingij shing feature of the American govern- 
 meni; has been the judicial department. At moments its 
 judges have cast impartiality behind them, and de- 
 scended into the political arena. At other times the 
 Supreme Court has shown indecision or instability. It 
 has been "packed" to secure a particular verdict, and 
 has rendered the desired opinion. It has put itself so 
 out of accord with public sentiment that its decrees were 
 successfully overriden or disregarded by the Congress, 
 by the President, by the state executives and courts, or 
 by the people. It has been temporarily the most hated 
 feature of our government, and a recurring popular cry 
 has called for its curtailment or alteration. But in the 
 main it has admirably fulfilled its purposes. So far from 
 grasping power, it has constantly sought to differentiate 
 federal jurisdiction from that of the states, and though 
 its influence is widening, it is because the necessities of 
 national development require it. Because it is the one 
 ultimate court in the world which is allowed to annul as 
 well as to expound a law, it stands as the greatest pro- 
 tector of the minority now known; and because this 
 power has in the main given justice as well as legality to 
 its decisions, the court has won an enviable reputation 
 for fairness, and consequently a respect nowhere else ob- 
 tained. No matter how unpopular its decisions may be, 
 they are submitted to without question. " We shall abide 
 by the decision," said Lincoln, even in the heat of the 
 Dred Scott excitement, "but we will try to reverse it." 
 
 The greatest test of the success of the framers is to be 
 found, however, in the general rather than in the govern- 
 mental history of the constitutional period. Within that 
 time our territory has been more than tripled, and our 
 states have been mutiplied by over three. Our popula- 
 tion has grown from three to seventy million, and we 
 have received foreigners in such numbers that some of 
 
INTRODUCTION. Xix 
 
 these nationalities now exceed the whole number of 
 Americans at the time the Constitution was framed. 
 We have fought a war with the most powerful nation of 
 Europe, and conducted within our own borders the 
 longest great war since the Napoleonic epoch. Yet to- 
 day our people are as free as they ever were, our govern- 
 ment as efficient, and though the constitution has many 
 times been overridden or disregarded, with scarcely an 
 exception the ending of the crisis that led to such action 
 has been followed by a contraction of powers to consti- 
 tutional limits. After a hundred years of testing the 
 national government stands to-day as the only one which 
 has existed for a century without changes that were in 
 effect revolutionary, and it is the only one able to en- 
 force its laws on seventy millions of people without 
 creating within itself a spirit of resistance and revolt. 
 
 Yet the federal constitution would have failed, as every 
 government must fail, but for the faculty of self-govern- 
 ment inherent in the people it nominally governs. Of 
 what use would constitutional guarantees to the minority 
 be, if the majority chose to disregard them? Of what 
 use would a supreme court be, if its decisions were jncit/ 
 acquiesced in? The constititution is alterable, the Su- 
 preme Court or the limitations can be amended at the 
 will of the people. The constitution hasbeen overridden, 
 the people have disobeyed the laws. The success of our 
 national government is due, not to its principles or struc- 
 ture; it is due to the fact that it gives to the majority 
 the right of governing the land provided their laws shall 
 be equal in operation, and that with this degree of power 
 the majority has been content. It is, therefore, but one 
 expression of what is the cardinal element of good 
 government: a self-controlled people, given to excess 
 in neither law-making nor in law-breaking. 
 
 On September 17, 1787, the federal convention, after 
 nearly four months of anxious work, completed the fram- 
 ing of the compact since known as the constitution of 
 
XX INTRODUCTION. 
 
 the United States, and forwarded it to the Continental 
 Congress, accompanying the instrument with the request 
 that the proposed plan of government might be submitted 
 to conventions of the people in the various states, for 
 their discussion and ratification or rejection. The result 
 of this recommendation was almost to turn the country 
 at large into a vast debating society, and for nine months 
 public speakers, pamphleteers, and newspapers declaimed 
 and argued. Probably in no other time or country have 
 the principles of government ever been so universally 
 and elaborately discussed. 
 
 Even before the convention had made the result of its 
 labors public, it was notorious that a large and powerful 
 party in the state of New York was prepared to oppose 
 whatever that body should submit. In the instructions 
 of that state to her delegates to the federal convention, 
 an attempt had been made to insert a restriction that 
 any alterations made in the articles of confederation 
 "should be not repugnant to, or inconsistent with, the 
 constitution of this state," ' a motion lost by but one 
 vote, and the instructions actually adopted only modified 
 this limitation to the extent that the New York delegates 
 were restricted to "the sole and express purpose of 
 revising the articles of confederation.'"' When there- 
 fore the convention, discarding the old government, set 
 about the framing of a new one, two of New York's three 
 delegates, Robert Yates and John Lansing, Jr., with- 
 drew from the convention on the grounds that the body 
 had wholly exceeded its power, and united in an open 
 letter of protest to the Governor of the state, George 
 Clinton;' and though the third, Alexander Hamilton, 
 refused to be bound by their action, and eventually 
 signed the constitution, his act unquestionably tran- 
 scended his powers. 
 
 Lines were therefore already drawn, when on Septem- 
 ber 27, 1787, the constitution was published in the New 
 
 ' Motion of Roberts Yates, Journal of Senate. 
 
 s Elliot, ii. 127. ^Ibid., 480. 
 
INTRODUCTION. XXI 
 
 York press, and how well prepared were the opposition 
 (or "Anti-federalists " as their opponents promptly named 
 them), is proved by the fact that, on the very day of its 
 publication, there appeared in the New York Journal, 
 the organ of the "state machine," a letter signed 
 "Cato," sharply and ably attacking the proposed govern- 
 ment, written, as was very quickly known, by no less man 
 than Governor George Clinton himself. From that time, 
 till the meeting of the Assembly in January, 1788, gave 
 other occupation, Clinton continued the attack in a 
 series of letters over the same pseudonym/ More 
 dangerous still was another series, under the pen-name 
 of "Brutus," begun a little later' than those of Cato 
 and far exceeding them in both ability and number, 
 which were notoriously written by Robert Yates, judge 
 of the state supreme court, and one of the delegates 
 who had withdrawn from the federal convention. 
 These two writers were re-enforced by a host of minor 
 scribblers. 
 
 Hamilton was too warmly in favor of a strong national 
 government, was too powerfully committed to the pro- 
 posed constitution, and held too ready a pen, to allow 
 these attacks to go unanswered. But three days after 
 the publication of the first letter of "Cato," a reply to 
 it, under the signature of "Csesar,"' appeared in the 
 papers, keenly personal * in character, and virtually 
 warning the "Anti-federalists," that they could "take" 
 the "proffered constitution," or run the risk of seeing 
 a government forced upon them by an army. Further- 
 more, "Cato" was told that, "in his future marches," he 
 would very probably be followed by "Caesar." 
 
 The want of political tact thus shown, typical indeed of 
 Hamilton through all his life, was eagerly seized upon by 
 " Cato," and in his second letter he cleverly animadverted 
 
 ' Reprinted in Ford's " Essays on the Constitution." 
 
 ''New York Journal, November i, 1787. 
 
 ^ Reprinted in Ford's " Essays on the Constitution." 
 
 ''Washington complained in November, 1787, that " I have hardly 
 seen one [publication] that is not addressed to the passions of the 
 people. " 
 
xxii INTRODUCTION. 
 
 on these imperious and ill-advised warnings, and closed 
 by telling " Csesar," in turn, that no notice would be 
 taken to what he might in the future write. To this 
 "Caesar," replied in a second letter, in which, as if 
 he had not done harm enough, he went to the lengths 
 of writing that " I am not much attached to t\\e. majesty 
 of the multitude," and therefore " waive all preten- 
 tions (founded on such conduct), to their countenance." 
 But even the author seems to have felt that he had 
 begun his appeal to the people amiss, for at the end he 
 gave notice that "Csesar" would not reply further to 
 "Cato." 
 
 This did not mean, however, that Hamilton resigned 
 the field to his adversaries, but merely that he intended 
 to change his ground. "Since my last," he wrote a 
 correspondent (presumably Washington), "the chief of 
 the state party has declared his opposition to the govern- 
 ment proposed, both in private conversation and in print. 
 That you may ju'dge of the reason and fairness of his 
 views I send you the two essays, with a reply by 
 'Csesar.' On further consideration it was concluded 
 to abandon this personal form, and to take up the 
 principles of the whole subject. These will be sent you 
 as published, and might with advantage be republished 
 in your gazettes."' Nor was it only his friends who 
 knew of this change of plan, for the organ of the Anti- 
 federalists promptly announced that, "a writer in the 
 state of New York, under the signature of 'Csesar,' 
 came forward against the patriotic 'Cato,' and en- 
 deavored to frighten, him from starting any objections, 
 and threatened that 'Cato' would be followed by 
 'Csesar,' in all his marches; but we find that as soon 
 as ever ' Cato ' came freely to discuss the merit of the 
 constitution, ' Csesar ' retreated and disappeared ; and 
 since that a publication under the signature of ' Publius ' 
 has appeared in that state." 
 
 To write such a treatise on the "principles of the 
 
 ■ See Ford's " Essays on the Constitution," 245. 
 
INTRODUCTION. XXIU 
 
 whole subject," was a task of no little labor, but to 
 write it in the few months before the assembling of the 
 New York state convention (if not before the elections 
 for members of that body), and so that it might at once 
 begin the work of counteracting the influence of "Cato" 
 and "Brutus," involved a rapidity of composition to 
 which Hamilton himself was unequal. He therefore 
 sought the assistance of two others in the undertaking' 
 and secured the aid, first of John Jay, then Secretary 
 of Foreign Affairs, and second of James Madison, a 
 member of the Continental Congress from Virginia, who 
 had recently distinguished himself in the federal con- 
 vention by his able elucidations of the general theory of 
 government; a form of study in which Virginians had 
 already made themselves famous. To Jay was assigned 
 the discussion of government in its relation to foreign 
 affairp, and to Madison was apportioned the historical and 
 theoretical part, with an analysis of the general powers of 
 the new government; Hamilton taking himself the ex- 
 amination of the defects of the confederation, and the 
 exposition of the proposed constitution in detail, for 
 both of which he was peculiarly fitted. 
 
 Even thus divided, it was a difficult task to produce 
 the weekly tale of essays alternately published in the 
 Independent Journal and the Daily Advertiser; and the 
 mere magnitude of the labor can best be understood 
 when it is noted that " Brutus," the ablest writer in the 
 opposition, wrote only sixteen letters, while eighty-five 
 appeared over the name of Publius, the periods of publi- 
 cation being almost identical. 
 
 The last letter of "Caesar" was published on Octo- 
 ber 17, and on October 27 '■'■The Federalist, No. i," 
 addressed to the "The People of the State of New 
 York," over the pen-name of "Publius," was printed in 
 
 '"The undertaking was proposed by Alexander Hamilton to James 
 Madison, with a request to join him and Mr. Jay in carrying it into 
 effect." {Madison in a paper entitled " The Federalists^ " It was 
 undertaken last fall by Jay, Hamilton, and myself. The proposal came 
 from the two ioxmsr." —Madison to Jefferson, August 10, iy88. 
 
XXIV INTRODUCTION. 
 
 ihQ Independent Journal.^ This announced itself as the 
 initial number of a series of essays on the proposed con- 
 stitution, and briefly outlined the intended scope of the 
 work. In eighty-five letters, published in the succeed- 
 ing seven months, this task was completed. 
 
 The marked excellence of the letters of "Publius" 
 attracted instant attention, and led to the republication 
 of the earlier numbers in the larger part of the American 
 press, even the New York Journal, the organ of the Anti- 
 federalists, being finally forced to print them for a time." 
 The demand indeed was sufficient to produce the prompt 
 advertisement of a collection of the series in book form, 
 and it was published while the constitution was still a 
 matter of debate. 
 
 That The Federalist produced any marked influence 
 at the time in leading to the acceptance of the new 
 government is questionable, for it was a moment of pas- 
 sion, rather than of reason, and the followers of Clinton 
 were too bound by selfish interests to let abstract reason- 
 ing really influence them. A good Federalist could only 
 say of the work of "Publius" that "he is certainly a 
 judicious and ingenious writer, though not well calculated 
 for the common people."' As for the Anti-federalists, 
 they made no pretense of regarding the arguments. 
 " 'The Federalist,' as he terms himself," wrote one, "or 
 ' Publius,' puts me in mind of some of the gentlemen of 
 the long robe when hard pressed, in a bad cause, with a 
 rich client. They frequently say a good deal which does 
 not apply; but yet if it will not convince the judge and 
 jury, may perhaps, help to make tl^em forget some part 
 of the evidence — embarrass their opponents, and make 
 the audience stare." * 
 
 The New York elections for delegates to the state 
 
 ' It has been stated by Rives and Bourne that the early letters were 
 signed "A Citizen of New York." This is an error, the only use of that 
 pseudonym being in an advertisement of the first collected edition. 
 
 ^ It printed later a petition from thirty subscribers that the paper would 
 cease from republishing The Federalist. 
 
 'Maclaine to Iredell, March 4, 1788. 
 
 * New York Journal, February 14, 1788, 
 
IN TROD UC TION. XXV 
 
 convention well proved that "Publius" had written in 
 vain, for only one-third of the men chosen were Federal- 
 ists — making the contest one of the most crushing 
 defeats ever experienced by the Anti-Clinton party. 
 Nor were the members of the convention when met, any 
 more open to persuasion than the people had been. "I 
 steal this moment," wrote one, "while the Convention is 
 in Committee and the little Great Man employed in 
 repeating over Parts of Publius" to write; and another, 
 when an Anti-federalist was charged with having "com- 
 piled " his speech from the New York papers, replied 
 that "if so, he had as much credit with me as Mr. 
 Hamilton had, for retailing in Convention, Publius." 
 
 But if the masses were held to the democratic party in 
 the state by the arguments of "Cato" and "Brutus" 
 and were deaf to the reasoning of "Publius," there was 
 a limit to what they could be made to accept. That the 
 federal compact robbed them of power, and was a 
 " gilded trap," leading to consolidation and to eventual 
 tyranny, they had strong reasons for believing, but when 
 the state machine, triumphant in shaping public opinion 
 to this extent, went one point further, and advanced the 
 idea of separation from the Union, which indeed was the 
 logical outcome of a rejection of the constitution, it was 
 not followed by the rank and file. In the history of the 
 United States disunion has been often talked and some- 
 times attempted by political leaders, but not once have 
 the masses accepted it. The only serious endeavor to 
 break up the country which has ever occurred was in a 
 section where those who should have been the controlling 
 citizens were chiefly slaves, unable to make their influence 
 a power; and even there, in the mountain regions, where 
 the plain American resembled his more northern coun- 
 tryman, disunion never prospered. From 1774, if not 
 earlier, the leaders have upheld or denounced a united 
 country, according to their selfish or sectional views, but 
 the unspeaking masses have felt, what it took statesmen 
 years to learn, that there was but one people and one 
 nation, be the states thirteen or thirty. In 1788 the 
 
XXVI INTRODUCTION. 
 
 majority might vote against a frame of government; they 
 could not be brought to vote against the Union. 
 
 But another and more concrete difficulty existed to 
 obstruct the plans of the Clintonian leaders. The Anti- 
 federalists were a landholding and therefore an up-state 
 party, while New York City and its immediate vicinity 
 were controlled by the commercial and mechanic classes, 
 so strongly federal in their feeling that at this very elec- 
 tion for the convention, though the opposers of the con- 
 stitution had won overwhelmingly elsewhere, yet in New 
 York City the Federalists drove the Anti-federalists from 
 some of the polls by force, and even where this was not 
 done the vote stood as ten to one for their ticket. "Reject 
 the constitution," threatened the federal leaders, and "a 
 separation of the Southern District from the other parts 
 of the State . . would become the object of the Feder- 
 alists and of the neighboring States.'" This would not 
 merely exclude the inland part of the state from the Union, 
 it would shut it out from Ihe sea. Worse still, it would 
 lose to the country sections their share of the large 
 revenues arising from the imposts on the rich commerce 
 of New York City, and as this revenue was a principal 
 reason for the refusal to join the Union (because of its 
 necessary transference to the general government), the 
 certain loss of it by a secession of the City removed a 
 powerful motive of the Anti-federalists for opposing the 
 constitution. 
 
 This danger of division, therefore, made the triumph 
 of the Clinton party more apparent than real, and not 
 daring to reject, nor willing to accept, the opponents of 
 the constitution could only adopt the policy of delay, 
 hoping that enough states would reject the new govern- 
 ment to prevent its organization. Having postponed 
 the state convention as long as possible, to gain time, it 
 was next proposed when that body had met that they 
 should take a " long adjournment as the safest and most 
 artful course to effect their final purpose.'" But as state 
 after state accepted the constitution such action became 
 
 ' Hamilton to Madison, June 8, 1788. ''Ibid. 
 
INTRODUCTION. XXVll 
 
 too extreme, and in place of it a plan of conditional 
 amendments was brought forward, by which the state 
 could later withdraw from the Union. Rather than risk 
 further contest, this compromise was at first favorably 
 received by the Federalists; the one side hoping that the 
 new government would prove so great a failure or so 
 hard a master that a favorable opportunity would come 
 for rescinding the ratification, while the other foresaw 
 that, a ratification once obtained, there would be little to 
 "fear in the future." But while this compromise was 
 still in embryo news reached the convention that both 
 New Hampshire and Virginia had ratified the constitu- 
 tion, making ten states in all, and insuring the organiza- 
 tion and trial of the new government. The Federalists 
 therefore became less yielding and finally wrung from 
 their opponents an unconditional ratification. What the 
 arguments of " Publius " could not bring to pass had 
 been extorted from the majority of the state by the 
 majority of the states and a minority of its own citizens. 
 But if The Federalist was an uninfluential factor in the 
 actual struggle for ratification, it was because of the 
 nature of the contest, and not from want of ability. It 
 is true that serious defects, due to the circumstances of 
 its production, are obvious. Although intended to be a 
 systematic work on republican government, it was even 
 more a plea for the adoption of this particular constitu- 
 tion, and therefore had quite as much of the legal brief 
 as of the philosophical commentary on government. 
 Not one of the authors of The Federalist entirely approved 
 of the constitution, but none the less they were called 
 upon to defend it in toto. "In some parts," wrote Jef- 
 ferson, immediately after its publication, "it is discover- 
 able that the author means only to say what may be best 
 said in defense of the opinions in which he did not con- 
 cur," ' proving that some of the arguments were so half- 
 
 '" Though carried on in concert, the writers were not mutually responsi- 
 ble for all the ideas of each other ; thei-e being seldom time for even a 
 perusal of the pieces by any but the writer, before they were wanted at 
 the press, and sometimes hardly by the writer himself." — Madison to 
 Jefferson, Aiigust lo, jySS. 
 
XXVUl INTRODUCTION. 
 
 hearted that the author's true thoughts stood revealed. 
 As essays intended to combat the letters of " Cato " and 
 " Brutus,'' frequent digressions and repetitions were made 
 to disprove such postulates of those publications as were 
 found to influence the people. Written especially to 
 influence the voters of the state of New York, its refer- 
 ences to local circumstances, and especially to the state 
 constitution, were constant. Furthermore, the work was 
 written with the utmost haste by three men, with few 
 opportunities to consult, leading to frequent duplication, 
 and to some inconsistencies. " The haste," wrote one of 
 its authors, " with which many of the papers were penned 
 in order to get through the subject while the Constitu- 
 tion was before the public, and to comply with the 
 arrangement by which the printer was to keep his paper 
 open for four numbers every week, was such that the 
 performance must have borne a very different aspect 
 without the aid of historical and other notes which had 
 been used in the Convention, and without the familiarity 
 with the whole subject produced by the discussions 
 there. It frequently happened that, while the printer 
 was putting into types parts of a number, the following 
 parts were under the pen and to be furnished in time for 
 the press."' "The particular circumstances," wrote 
 Hamilton, in the preface of the first collected edition of 
 The Federalist, "under which these papers have been 
 written have rendered it impracticable to avoid viola- 
 tions of method and repetitions of ideas which cannot but 
 displease a critical reader." 
 
 Yet despite these adverse conditions, the writers of 
 The Federalist produced a work which from the moment 
 of publication has been acknowledged to be at once the 
 ablest commentary on the federal constitution and one of 
 the most solid and brilliant works on government ever 
 written. " It would be difficult," wrote a critic '^ in 1788, 
 "to find a treatise which, in so small a compass, con- 
 tains so much valuable political information, or in which 
 
 ' Madison, in paper entitled " The Federalist.'' 
 
 ^ Noah Webster in American Magazine for March, 1788. 
 
IMTRODUCriON. XXlx 
 
 the true principles of republican government are unfolded 
 with such precision."' This was echoed in 1830 by one 
 of our ablest jurists," who declared "There is no work on 
 the subject of the constitution, and on republican and 
 federal government generally, that deserves to be more 
 thoroughly studied. . . I know not indeed of any 
 work on the principles of free government that is to be 
 compared, in instruction, and intrinsic value, to this 
 small and unpretending volume of The Federalist, not 
 even if we resort to Aristotle, Cicero, Machiavel, 
 Montesquieu, Miltpn, Locke, or Burke. It is 'equally 
 admirable in the depth of its wisdom, the comprehensive- 
 ness of its views, the sagacity of its reflections, and the 
 fearlessness, patriotism, candor, simplicity, and elegance 
 with which its truths are uttered and recommended." 
 More recently the historian of the Supreme Court, after 
 stating that The Federalist ' ' has been seriously and 
 reverently called the Bible of Republicanism," added 
 "that for compreliensiveness of design, strength, clear- 
 ness, and simplicity, the book has no parajlel among the 
 writings of men, not even excepting or overlooking those 
 of Montesquieu and Aristotle." ° 
 
 * 
 * * 
 
 As certain defects in The Federalist resulted from its 
 being written by three men, so this circumstance in time 
 produced a controversy as to the exact share two of its 
 authors had borne in the undertaking. The question 
 has been needlessly complicated by the use of much 
 material which had really no bearing on it, or which was 
 valueless as evidence. Discarding all this, the dispute is 
 reduced to the problem: did Hamilton, or Madison, 
 write Nos. 49 to 58 and Nos. 62 and 63? 
 
 That either man should actually believe that he wrote 
 
 ' Jefferson pronounced it " the best commentary on the principles of 
 government which has ever been written." — Letter to Madison, Novem- 
 ber 18, 1788. 
 
 ^ James Kent in " Commentaries" i. 241. Story, too, speaks of it as 
 " an incomparable commentary." 
 
 3 Carson's " History of the Supreme Court." 
 
XXX INTRODUCTION. 
 
 twelve essays which he did not may at first sight seem 
 impossible, but a recurrence to the circumstances at the 
 time they were written proves that it was possible for both 
 honestly to err. The essays were penned by men who had 
 been reading the same books and listening to the same 
 debates. Necessarily, therefore, their minds for the 
 moment were saturated with the same material. The air 
 was filled with certain principles and facts, which were 
 used by both men, as well as by many, others, and for 
 this reason, any attempt to argue the question from mere 
 similarity of thought, as is done in the special pleas of 
 John C. Hamilton in his edition of The Federalist in 
 behalf of his father, and of Professor E. G. Bourne in the 
 American Historical Review for March, 1897, in behalf 
 of Madison, are, so far as. they argue from mere resem- 
 blance of idea, valueless as real evidence. From the 
 letters of "Brutus," the great opponent of "Publius," 
 could be selected a series of extracts that would go far to 
 prove that he was the writer of the disputed essays of 
 The Federalist.. Undoubtedly, too, there was some con- 
 sulation between the writers of " Publius " with inevitable 
 mutual coloring, and the letters were written with such 
 haste that no one essay could especially impress itself on 
 the mind of the writer. But an even greater cause than 
 this matter of "stock" phrases and exchange of ideas, 
 for the confusion and resulting contradiction of the 
 writers, was the fact that both Hamilton and Madison 
 were members of the conventions in their respective 
 states to discuss the constitution, and in their speeches 
 necessarily went over the same points that had been 
 discussed in The Federalist. Mention has already been 
 made of the fact that Hamilton was charged with "retail- 
 ing" Publius to the New York state convention, and a 
 reading of Madison's speeches in that of Virginia shows 
 that he, too, made large drafts on The Federalist. When, 
 therefore, the moment came that its writers could look 
 over the collected edition, it is not strange that much 
 of it read so familiarly to each that he honestly thought 
 himself the writer. Granting the possibility, therefore. 
 
INTRODUCTION. XXXl 
 
 that both men could be misled, the question becomes 
 not what each author thought, but purely ^hat other 
 evidence than their opinions goes to prove. 
 
 Before dismissing this question of memory, one fact 
 of value cannot be omitted. Madison set out for Virginia 
 three days after the last essay in dispute was published, 
 was quickly engaged in the heat of party strife tend- 
 ing to obscure his memory on the question of author- 
 ship, and making it improbable that he could give the 
 volumes of The Federalist, when they presently appeared, 
 any careful examination for some time. Strange though 
 it may appear, Madison apparently possessed no copy of 
 the fJFSt edition, having presumptively given away all 
 those sent him by Hamilton. On the contrary, while 
 Madison was engaged in occupations likely to make him 
 forget or confuse the part he had borne in the under- 
 taking, Hamilton was revising the newspaper articles 
 and seeing them through the press for the book edition. 
 There is not an essay in the collected edition of 1788 in 
 which he did not make from ten to twenty verbal correc- 
 tions, implying careful study of the text, and as this 
 revision was done within two months of their appearance 
 in the newspapers, and before Hamilton had confused 
 matters by "retailing" Publius in the New York con- 
 vention, it is obvious that he refreshed his memory in a 
 way most certain to fix the authorship clearly in his 
 mind. 
 
 These facts being considered, it becomes of importance 
 to find what is the earliest date at which each of the 
 disputants asserted his claim of authorship. So far as is 
 known Madison's was first noted in a copy of the edition 
 of The Federalist printed in 1799, or eleven years after 
 the appearance of the essays. Hamilton's earliest state- 
 ment was made to Chancellor Kent, and as he is spoken 
 of in the memoranda as "General Hamilton" it must 
 have been made while he held that rank, or in the years 
 1798 or 1799. Thus both assertions practically rest on 
 equal ground, so far as time is concerned. 
 
 But one piece of evidence deserves mention, because it 
 
xxxu INTRODUCTION. 
 
 seemed at one time to threaten that Madison's claim was 
 to be lost by default. Hamilton's list was published in 
 a widely read periodical in 1807, and the edition of The 
 Federalist printed in 1810 ' gave further currency and 
 authority to Hamilton's view by ascribing the numbers 
 according to one of his statements. Yet not one word 
 of denial was publicly made by Madison, or by any of 
 his friends for him, until 181 7. It has been urged in 
 explanation that Madison's official positions prevented 
 his entering into a controversy, but an adequate reply is 
 furnished by the fact that through his friends the Secre- 
 tary of State and President conducted several newspaper 
 controversies in these very years. 
 
 Another point worth considering is the fact that Ham- 
 ilton held by far the readier pen, and as the originator 
 of the series undoubtedly intended to take the laboring 
 oar. Madison was the last one of the three to join in the 
 undertaking, and in the first thirty-six essays he wrote 
 but two entirely by himself, the remaining three in which 
 he bore a part having been begun as well by Hamilton. 
 With this in mind let us consider the circumstances that 
 mark a peculiarity in Madison's chief share in the work. 
 At No. 37 Hamilton for the time being ceased all work, 
 and Madison took up the task and wrote twelve consecu- 
 tive essays, immediately following which come the twelve 
 in dispute. The question naturally arises why Hamilton 
 should suddenly transfer to Madison the continuance of 
 the series, throwing upon him all the work, and the reason 
 is not far to seek. No. 36 of The Federalist, or the last 
 of Hamilton's contributions, was published on January 8. 
 On January 15 the New York state supreme court 
 began its winter term, and Hamilton as a busy lawyer 
 was called upon to attend it.'' Furthermore, on January 
 
 ' One fact of interest in this edition is that it gives Hamilton as the 
 author of No. 54, thus showing that there was a list "in his own 
 handwriting " in existence at that time, which corrected the obvious error 
 he made in the Benson list. 
 
 '^ That the courts gave Hamilton so much occupation as to force him 
 to suspend his work on The Federalist is proved in a letter from him to 
 Madison in April, 1788, when he wrote, " If our suspicions of the 
 
INTRODUCTION. xxxiii 
 
 II the New York state legislature assembled, and 
 Hamilton, who was a candidate for membership of Con- 
 gress, was involved in a political campaign akin to the 
 modern senatorial election. These joint occupations 
 necessarily made such drafts upon his time that he could 
 not continue The Federalist, and that there should be no 
 break in it Madison assumed the entire task of carrying 
 it on. The term of the court ended on January 25, and 
 on February 22 Hamilton was elected to the Continental 
 Congress. We therefore have the choice of inferring that 
 Hamilton at once resumed his work ' on The Federalist 
 or else that he resumed it when Madison went south," 
 
 Turning from these extraneous facts to those which 
 can be drawn from the essays themselves, the first point 
 deserving consideration relates to a condition implied by 
 joint authorship. A moment's thought will suggest that 
 a work produced in this manner must force upon each 
 writer a little difficulty in maintaining in a nominally con- 
 secutive work an appearance of homogeneity. Where an 
 essay was to follow one written by the same author 
 sequence was possible, but when it was to succeed one he 
 had not written or read, the task was not easy. Neces- 
 sarily then, one would expect a certain disjointedness of 
 connection, and this is the very thing discovered on ex- 
 amining the points where a new writer assumed the pen. 
 Thus No. 10, by Madison, is an essay on faction, yet 
 though the preceding letter was on the same subject, it 
 
 author be right he must be too much engaged to make a rapid progress 
 in what remains. The Court of Chancery and the Circuit Court are now 
 sitting." Turning to The Federalist we find at this very point a. 
 gap of over two months in the publication of a number. 
 
 ' No. 48 was published on February 2 : Madison began his southern 
 journey on March 4. 
 
 ' A very valuable piece of evidence on this question of authorship has 
 been buried from sight by the mistakes of Hamilton's two editors in 
 labeling a paper printed in both editions as a "Brief of Argument on 
 the Constitution of the United States," though the manuscript of the 
 paper bore no heading whatsoever. Study of it should have clearly 
 indicated that it is a preliminary outline of The Federalist from the 
 point that Hamilton was interrupted in his composition by his legal and 
 political occupations, and it was presumably drawn up as a guide for 
 Madison in his continuance of the task, See^ost, 
 
XXXI V INTRODUCTION. 
 
 does not continue the first, but is a distinct essay. 
 Following this are three essays on the defects of the 
 confederation, by Hamilton, and then comes No. 14, by 
 Madison, which is really a continuation of No. 10, and is 
 therefore an absolute break in the subject of both the 
 letters which precede and follow it. If the authorship of 
 these six numbers were not known it would be possible 
 to decide, from internal evidence, at what points a dif- 
 ferent writer undertook the labor. Nor does the obvious 
 difference between a man opening an essay which follows 
 one by himself or one by another, fail to show itself at 
 every change of writer that is known to have occurred. 
 By examining the opening phrases of Nos. 10, 14, 18, 
 and 37, in which Madison began his contributions, the 
 disconnection with the preceding numbers is obvious, 
 and the same is true of Nos. 2 and 64 in which those by 
 Jay began. But most marked of all are the opening 
 sentences with which Hamilton resumed his part, and as 
 they are of value, in the present consideration, they are 
 quoted here: 
 
 6. " The last three numbers of this work have been dedicated to 
 an enumeration of the dangers". . . 
 
 II, "The importance of the union in a commerical light". . . 
 15. "In the course of the preceding papers, I have en- 
 deavored". . . 
 21. " Having, in the last three numbers, taken a summary re- 
 view" . . . 
 
 Here, then, in three cases, are evident attempts to 
 attach new subjects to previous essays so as to imply a 
 sequence that was absent in the subjects and treatment. 
 With this as a clew, if we run through the letters from 
 Nos. 37 to 63 (after which there is no dispute), but two 
 natural breaks are to be found — at Nos. 47 and 52, which 
 severally begin: 
 
 47. " Having reviewed the general form of the proposed 
 
 government " . . 
 52. " From the more general inquiries pursued in the preceding 
 
 four last papers "... 
 
INTRODUCTION. xxxv 
 
 If the analogy of the previous openings is allowed as 
 evidence, it is at one of those two points, then, that we 
 should conclude that a new writer had begun. 
 
 With these facts to work upon, an examination of the 
 five essays, Nos. 47 to 51, shows them to be a discussion 
 of the apportionment of the powers of government 
 among the three departments. The general extent of 
 these powers had been already discussed in the immedi- 
 ately preceding numbers, and a more minute survey of 
 their relation to the three departments is the subject of 
 the remaining essays almost to the end. They can, 
 therefore, be considered as belonging to either. From 
 Madison himself, however, we get a clew, for in No. 41 
 he distinctly assigns them to the second series.' But 
 whether this is accepted as proof, an examination of the 
 five forces the inference that they were all written by one 
 man. 
 
 The authorship of Nos. 37 to 48 is given to Madison 
 by every known list, so it is difficult to avoid con- 
 cluding that the apparent break between Nos. 46 and 
 47 ° merely represent the beginning of a new subject by 
 the same pen, and not a change of writer. Furthermore 
 we have the excellent authority of James Kent for the 
 statement that "Mr. Hamilton told me that Mr. 
 Madison wrote 48 and 49, or from Pa. loi to 112 of 
 Vol. 2d." No. 50 was almost surely written by the 
 
 ' " 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 re- 
 straints imposed on the states. The Second, to the particular structure 
 of the government, and the distribution of this power, among its several 
 branches. 
 
 " Under the first view of the subject two important questions arise : i. 
 Whether any part of the powers transferred to the general government 
 be unnecessary or improper? 2. Whether the entire mass of them be 
 dangerous to the portion of jurisdiction left in the several states?" — 
 Opening paragraphs of No. 41. 
 
 ^ One curious fact, to which attention has never been called, is that 
 Taylor, in his " New View of the Constitution (1823) " divides the au- 
 thorship at No. 46, giving No. 47 and all that follow to Hamilton. Yet 
 though he was the friend and correspondent of Madison, and though this 
 book was a well-known one to the latter, neither publicly nor privately, 
 so far as is known, did Madison correct Taylor's conclusion, 
 
xxxvi INTRODUCTION. 
 
 same hand which penned No. 49, and No. 51 was cer- 
 tainly composed by the writer of No. 50. In addition 
 these essays discuss the powers from the purely histor- 
 ical and theoretical standpoint, views for which Madison 
 had strong predilections. A candid survey of the facts, 
 therefore, will, we think, lead every unbiased student to 
 assign them to one author, and the balance of evidence 
 certainly points to James Madison.' 
 
 But the same internal evidence shows that with No. 52, 
 a minute and homogeneous examination of the structure 
 of the grovernment is begun, in which the three depart- 
 ments are analyzed point by point. That one man wrote 
 Nos. 52 to 58, that a second contributed Nos. 59 to 61, 
 that then the original writer resumed his work in Nos. 
 62 and 63, and that finally the task was again assumed 
 by the second writer, and completed by him, the essays 
 themselves give no evidence. With the exception of the 
 insertion of one essay (No. 64, on the treaty- making 
 power of the Senate, which was given to Jay, because of 
 his diplomatic experience), it is difficult to resist the con- 
 viction that the whole remainder of the letters are the 
 work of one writer and one prone to take the practical 
 rather than the theoretical view of things. 
 
 ' One rather singular piece of evidence contradictory to the above con- 
 clusion is furnished by the comparative length of the different essays. 
 When examining in the newspapers the original text of The Federalist 
 my attention vfas called to the fact that the letters contributed by 
 Hamilton rarely overran a column and a half, while those by Madison 
 seldom filled less than three columns. I therefore carefully estimated 
 the lengths of each man's work, to find that the average length of the 
 fifty essays unquestionably written by Hamilton is 1800 words ; of those 
 certainly written by Madison, 3000 words. Madison wrote in the un- 
 doubted numbers (No. 10, 14, 37-46,) but two essays of less than 2300 
 words, and Hamilton but once wrote one of 3000 words, except in the last 
 five, when an evident attempt was made to finish the series up quickly. 
 Testing Nos. 49 to 58 and Nos. 62 and 63, the average length is found 
 to be 1800 words. No. 47 contains 2700 words ; No. 48, 1800 ; No. 
 49, 1600 words ; No. 50, iioo words ; No. 51, 1800 words ; No. 52, 1700 
 words. It is needless to add, to anyone who has studied the writings 
 of the two men, that the differences between the two styles in this very 
 respect is most noticeable. Madison is wordy and seems to have little 
 ability to express an idea with brevity. Hamilton is direct and compact 
 to an extent which made him a famous draftsman in his day, and few 
 men have ever equaled him in his power of stating a thing tersely. 
 
INTRODUCTION. xxxvii 
 
 Examining Nos. 52 to 58 and 62 and 63, in detail, we 
 find several small facts which throw light on the.question 
 of authorship. In Nos. 52, 56/57, 58, and 63, are cita- 
 tions of examples in English history, like references 
 being numerous in many of Hamilton's essays, but only 
 two passing references to Great Britain are to be found 
 in any of those written by Madison." The same differ- 
 ence is noticeable in the papers prepared by the two 
 writers for use in the federal convention — Hamilton's 
 "Brief" of his speech, and Madison's "Notes," the 
 first citing British example frequently, the latter not 
 once." 
 
 In Nos. 53, 54, and 56, are paragraphs discussing taxa- 
 tion, and the first and last of these letters also discuss 
 the militia, both of which subjects Hamilton had famil- 
 iarized himself with, and which he had made his own 
 topics in the earlier essays. 
 
 No. 54 is a discussion of slave representation, written 
 nominally from the Southern point of view, but really 
 from the Northern. Not once did Madison allude to this 
 famous clause in the Virginia convention, but Hamilton 
 spoke a r^sumd of this essay in that of New York. The 
 cause for this is obvious: the "federal number" needed 
 no defense in Virginia; in New York, the contrary was 
 true. But an even greater reason for Hamilton's taking 
 up this particular point was the fact that on February 
 7, 1788, there had appeared in the New York Journal 
 a letter entitled "The Expositor," savagely attacking 
 the slave compromise and charging of Hamilton himself 
 that "The delegate from this state acceded to it alone 
 on the part of this state," and adding, "I cannot help 
 thinking it a most daring insult offered to the freemen 
 and freeholders of this State, besides being an unparal- 
 leled departure from his duties to this state as well as to 
 the United States." Necessarily this attack could not 
 
 ' I omit here the resume in No. 47, because from what has already 
 been shown, this number cannot be positively ascribed to Madison. 
 
 ^ In Madison's supplementary notes, prepared for use in the Virginia 
 convention, he cites British example, but this was after The Federalist 
 had called his attention to the value of the material. 
 
xxxviu INTRODUCTION. 
 
 be disregarded, and the impersonal reply to it in No. 
 54 was published exactly one week later, on Febru- 
 ary 14. It seems almost conclusive under these cir- 
 cumstances that it was written by Hamilton. Another 
 opinion in this number furthers this probability. The 
 writer praises the "federal number," on the ground 
 that it introduces through the slave a partial repre- 
 sentation of property. This was a favorite idea of 
 Hamilton's, for which he had spoken in the federal 
 convention, and for which he praised this clause in 
 one of his speeches in the New York convention. To 
 this idea of property representation Madison was abso- 
 lutely opposed. 
 
 In No. 52 the writer is in doubt as to the term of office 
 of the colonial assembly of Virginia before the Revolu- 
 tion; a fact so notorious in that state that it could not 
 have been unknown to Madison. 
 
 In No. 63 the writer praises the British House of 
 Lords; something Madison would not have done. Ham- 
 ilton, on the contrary, had been most open in his admira- 
 tion of the British government, and so admired this 
 particular branch of it that he had but just modeled the 
 Senate in his proposed constitution as closely upon it as 
 he could. This essay, too, devoted a paragraph to the 
 Senate of Maryland, which Hamilton had already noticed 
 with some attention in his " great " speech in the federal 
 convention. 
 
 In Nos. 54 and 57 the mention of local circumstances, 
 of New York state, of New York city, and of Albany 
 county, points to the knowledge of Hamilton rather than 
 to that of Madison. 
 
 Finally and most conclusive, in the republication in 
 1788 of the letters in book form, Hamilton inserted in 
 the newspaper text of No. 56 a paragraph relating to mili- 
 tary affairs, and as he was scrupulous, in correcting the 
 numbers not written by himself, to limit his change to 
 merely verbal improvements, this addition amounts to an 
 assertion of authorship within two months of its writing. 
 Strangely enough, in the edition of 1818 in which "the 
 
INTRODUCTION. xxxix 
 
 numbers written by Mr. Madison" were "corrected by 
 himself," this insertion of Hamilton's was retained. 
 
 From the preceding facts, in which, so far as possible, 
 all evidence that is of value has been included, without 
 regard to whether it told for or against a particular man, 
 it appears that Madison probably wrote Nos. 49 to 51, 
 and Hamilton Nos. 52 to 58 and Nos. 62, 63, of those 
 essays of which we find their testimony in direct contra- 
 diction. Accordingly they are in this edition assigned 
 as above, but since the evidence cannot be termed con- 
 clusive, a question mark has been placed before the name 
 attached to each disputed number. 
 
 But to whomever the disputed numbers are assigned, 
 
 or whether they are left in doubt, the value and power 
 
 of The Federalist were due to its undertaker, and not to 
 
 his assistants. It is asserted that Hamilton requested 
 
 the insertion of the sentence in the preface of the edition 
 
 of 1802 to the effect that the contributions of Madison 
 
 and Jay were "not unequal in merit to those which are 
 
 solely from the pen of General Hamilton." In this 
 
 opinion Hamilton was probably singular, for the few 
 
 essays of Jay, and Madison's dry-bones on long dead 
 
 confederacies, and his " theoretic " arguments, would have 
 
 long since been forgotten, but for their inclusion in the 
 
 essays written by Hamilton. No one who has carefully 
 
 read the essays can fail to agree with George Ticknor 
 
 Curtis when he asserted that "it was from [Hamilton] 
 
 that The Federalist derived the weight and the power 
 
 which commanded the careful attention of the country," 
 
 and with the Hon. James Bryce, when he wrote: "Of 
 
 these writers Hamilton must be deemed the leading spirit, 
 
 not merely because he wrote by far the larger number of 
 
 letters, but because his mind was more independent and 
 
 more commanding than Madison's." 
 
 * 
 * * 
 
 The Federalist has been many times reprinted, and an 
 elaborate catalogue of these editions is given in Ford's 
 "Bibliography and Reference List of the History and 
 
xl INTRODUCTION. 
 
 Literature Relating to the Adoption of the Constitution 
 of the United States, 1787-1788." Briefly, a collected 
 edition of the newspaper articles, as revised by Hamil- 
 ton, was printed in 1788, and a reissue of this was made 
 in 1799. In 1802 a new edition with a preface by John 
 Wells, who was slightly assisted by Hamilton, was issued, 
 and this text was again printed in 1810 and 181 7, both 
 the latter editions adding the names of the authors from 
 "a private memorandum" in Hamilton's "own hand- 
 writing." 
 
 In 1818 an edition, with a preface by Jacob Gideon, 
 was printed with Madison's authority, "the numbers 
 written by Mr. Madison corrected by himself," and with 
 the assignment of authorship according to his views. 
 Other editions of this text were printed in 1821, 1826, 
 1831, 1837, 1842, 1847, 1852, and 1857. In the edition of 
 1831 a brief and very inadequate index was added. 
 
 In 1863 Mr. Henry B. Dawson reprinted in collected 
 form the original newspaper text, to which he added a 
 learned, though biased introduction. There have been 
 several reprints of this, but with the suppression of this 
 introduction. 
 
 In 1864 Mr. James C. Hamilton edited an elaborate 
 edition of Hamilton's revised text of 1788, with an intro- 
 duction written from a Hamiltonian point of view; of 
 this edition there have been several reissues. 
 
 In 1886 Mr. Henry Cabot Lodge reprinted the text of 
 Dawson, with one or two slight modifications, and with 
 an introduction rather favorable to Hamilton. He also 
 included the index printed in the edition of 1831. 
 
 The present edition is designed primarily for the use 
 of students, though it is hoped that certain new and 
 improved features will make it the most serviceable 
 as well for the lawyer and jurist. For the first time 
 Hamilton's preliminary outline of The Federalist is 
 included, and from the earliest edition his table of con- 
 tents and his introduction, omitted in recent editions, 
 have been added. In addition a new table of contents 
 has been prepared, giving fuller treatment, and this has 
 
INTRODUCTION. xli 
 
 been repeated at the beginning of each essay to facilitate 
 quick reference. The date of publication of each num- 
 ber, with the name of the newspaper in which it appeared, 
 has been for the first time obtained and prefixed to each 
 essay. Where, in the edition of 1788 the number was 
 changed from the newspaper text, the latter is added, in 
 brackets, that the endless confusion hitherto arising from 
 this contradiction may be henceforth avoided or under- 
 stood. All text of The Federalist which relates to the 
 purely temporary issues of 1788, and much of the hi^ori- 
 cal part, both of which are now of slight value, have been 
 printed in smaller type. For the benefit of the student, 
 the text has for the first time been annotated, both with 
 a view to making obscure allusions plain, and to the 
 elucidation of the text that intervening history has made 
 possible. 
 
 To the text of The Federalist proper there have been 
 added in the Appendix the articles of confederation and 
 the constitution, and to the latter are appended references 
 to the decisions of the Supreme Court bearing on each 
 clause, with three of the most important decisions in an 
 abridged form. All important amendments since pro- 
 posed have been included in the belief that in them are 
 best expressed the points of friction over that instrument. 
 For this same reason are included the opinions of 
 Hamilton and Jefferson on a national bank, the Virginia 
 and Kentucky resolutions of 1798, the South Carolina 
 Ordinance of Nullification and Jackson's Proclamation of 
 1832, the South Carolina Ordinance of Secession and 
 Declaration of Independence, the constitution of t?^e 
 Confederate States, and the act creating the Electoral 
 Commission. 
 
 Finally, for the first time The Federalist has been 
 thoroughly indexed; an addition which leads the editor, 
 from personal experience of the previous difficulty of con- 
 sultation and use of the work, to believe that no book 
 of equal importance has so needed such an improvement. 
 
 PAUt Leicester Forp. 
 
SYLLABUS OF THE FEDERALIST.' 
 
 A. I. A republic, a word used in various senses, has 
 been applied to aristocracies and monarchies. 
 
 1. To Rome, under the kings. 
 
 2. To Sparta, though a Senate for life. 
 
 3. To Carthage, though the same. 
 
 4. To United Netherlands, though Stadt- 
 
 holder, hereditary nobles. 
 
 5. To Poland, though aristocracy and mon- 
 
 archy. 
 
 6. To Great Britain, though monarchy, etc. 
 II. Again, great confusion about words democracy, 
 
 aristocracy, monarchy. 
 
 I. Democracy defined by some, Rousseau, 
 etc., a government exercised by the 
 collective body of the people. 
 
 a. Delegation of their power has been 
 made the criterion of democ- 
 racy. 
 
 ' This paper has been printed in both editions of the writings of Ham- 
 ilton as a " Brief of Argument on the Constitution of the United States. " 
 Study of it, however, indicates that it is a preliminary outline of ne Feder- 
 alist, from No. 39 to the end. As already mentioned in the Introduction, 
 the beginning of the term of the New York Supreme Court compelled 
 Hamilton to cease temporarily his work on The Federalist -witli No. 36, 
 and he probably drew this up as a guide for Madison, who at that 
 point assumed the task, and who closely followed in the succeeding 
 essays the sequence here outlined. By merely transposing the last por- 
 tions headed " Powers " and " Miscellaneous Advantages" so that they 
 precede that headed "Review," we have the arrangement of ideas 
 adopted in The Federalist. The syllabus is especially valuable in view 
 of the dispute over the authorship, for it shows how sharp a line Hamil- 
 ton drew between the "Powers" and the "Review" of the three 
 departments, the latter being evidently considered by him as one syn- 
 thetic whole. A comparison of No. 39 with "A" and "B" reveals 
 how thoroughly Madison absorbed the syllabus in this number, and as 
 that has been the most quoted of all those from Madison's, pen, the 
 source of his ideas possesses much interest. 
 
 xUii 
 
xliv SYLLABUS OF THE FEDERALIST. 
 
 2. Aristocracy has been used to designate 
 
 governments, 
 
 a. Where an independent few pos- 
 
 sessed sovereignty. 
 /;. Where the representatives of the 
 people possessed it. 
 
 3. Monarchy, where sovereignty is in the 
 
 hands of a single man. 
 [[^^■General idea — Independent in his 
 situation, in any other sense 
 would apply to State of New 
 York. 
 
 4. Democracy in my sense, where the whole 
 
 power of the government is in the 
 people, 
 
 n. Whether exercised by themselves, 
 or 
 
 b. By their Representatives, chosen 
 
 by them either mediately or im- 
 mediately, and legally account- 
 able to them. 
 
 5. Aristocracy, where whole sovereignty is 
 
 permanently in the hands of a few for 
 life or hereditary. 
 
 6. Monarchy, where the whole sovereignty 
 
 is in the hands of one man for life or 
 hereditary. 
 
 7. Mixed government, where these three 
 
 principles unite. 
 B. I. Consequence, the proposed government a representa- 
 tive democracy. 
 
 1. House of Representatives directly chosen 
 
 by the people for two years. 
 
 2. Senate indirectly chosen by them for six 
 
 years. 
 
 3. President indirectly chosen by them for 
 
 four years. 
 
 5t^=°Thus legislative and executive 
 representatives of the people, 
 
SYLLABUS OF THE FEDERALIST. xlv 
 
 4. Judicial power, representatives of the 
 
 people indirectly chosen during good 
 behavior. 
 
 5. All officers indirect choice of the people. 
 
 i^^Constitution revocable and alter- 
 able by the people. 
 C. I. This representative democracy, as far as is con- 
 sistent with its genius, has all the features of 
 good government. These features: 
 
 1. An immediate and operative representa- 
 
 tion of the people, which is found in 
 the House of Representatives. 
 
 2. Stability and wisftlom, which is found in 
 
 the Senate. 
 
 3. A vigorous executive, which is found in 
 
 the President. 
 
 4. An independent judiciary, which is found 
 
 in the Supreme Court, etc. 
 
 II. b. A separation of the essential powers of gov- 
 
 ernment. 
 Ascertain the sense of the maxim. 
 
 I. One department must not wholly possess 
 the powers of another. 
 
 — Montesquieu. 
 
 — British government. 
 
 III. Departments of power must be separated, yet so 
 
 as to check each other. 
 
 1. Legislative. 
 
 2. Legislative executive. 
 
 3. Judicial legislative. 
 
 4. Legislative judicial. 
 °A11 this is done in the proposed 
 
 constitution. 
 
 1. Legislative in the Congress, 
 yet checked by negative of 
 the Executive. 
 
 2. Executive in the President, 
 yet checked by impeach- 
 ment of Congress. 
 
xlvi SYLLABUS OP THE FEDERALIST. 
 
 3. Judicial check upon legisla- 
 
 tive, or interpretation of 
 laws. 
 
 4. And checked by legislative 
 
 through impeachment. 
 D. I. Can such a government apply to so extensive a 
 territory? 
 
 Exaggerated ideas of extent. 
 N. 45 42 
 
 S. 31 31 
 
 14 II 434 
 
 973 764^^ mean 868^ by 
 
 75° 
 Great Britain. 
 II. Despotic government for a large country to be 
 examined. 
 
 REVIEW. 
 
 I. Full House of Representatives chosen every second 
 
 year, etc. 
 II. Senate for six years by Legislatures. 
 Rotation every two years. 
 Probable increase. 
 
 III. Executive. Manner of appointment. 
 Compensation. 
 
 Negotiation of treaties. 
 Nomination of officers. 
 
 IV. Judicial power. Constitution of judges. 
 Extent of powers. 
 
 Inferior courts. 
 Trial by jury. 
 Criminal cases, 
 
 POWERS. 
 
 I. To provide revenue for the Common defense. 
 II. To regulate commerce. 
 III. To declare war. 
 
SYLLABUS OF THE FEDERALIS7\ xlvii 
 
 IV. To raise and support armies. 
 V. Admission of new states. 
 VI. Disposal of property. 
 
 MISCELLANEOUS ADVANTAGES. 
 
 I. To prohibit importation of slaves after 1808. 
 II. Account to be rendered of expenditure of moneys. 
 
 III. No state shall emit bills of credit [pass no bill of 
 
 atjtainder, ex-post facto law, or law impairing the 
 obligation of contracts, or grant title of nobility. 
 
 IV. Definition of treason. 
 
 V. Guarantee of Republican government. 
 
MADISON'S ACCOUNT OF "THE FEDERALIST." 
 
 The following memorandum complies with Mr. Pauld- 
 ing's request of the i6th instant' 
 
 The papers under the Title of " Federalist " and signa- 
 ture of "publius " were written by A. H. J. M. and J. J. 
 in the latter part of the year 1787 — and the former part 
 of the year 1788. The immediate object of them was to 
 vindicate and recommend the new Constitution to the 
 State of N. Y. whose ratification of the instrument, was 
 doubtful as well as important. The undertaking was 
 proposed by A. H. (who had probably consulted with Mr. 
 Jay and others) to J. M. who agreed to take a part in it. 
 The papers were originally addressed to the people of 
 N. Y. under the signature of a "Citizen of N. Y." This 
 was changed for that of " Publius," the first name of 
 Valerius Publicola. A reason for the change was that 
 one of the Writers was not a citizen of that State : 
 another that the publication had diffused itself among 
 most of the other States. The papers were first pub- 
 lished at N. Y. in a Newspaper printed by Francis Childs 
 at the rate during great part of the time at least of four 
 numbers a week; and notwithstanding this exertion, 
 they were not compleated till a large proportion of the 
 States had decided on the Constitution. They were 
 edited as soon as possible in two small vols, the preface 
 to the ist vol: drawn up by Mr. H bearing date N. York 
 Mar 1788 — In a publication at N. Y. in 1810 entitled 
 
 ' Sent by Madison to Paulding with the following letter : 
 
 " MONTPK, July 23 [l8l8] 
 " D» Sir 
 
 I return your copy of Gideon's Edition of the Federalist, with the 
 memorandum requested in your note of the i6th. I shall take a pleas- 
 ure in adding any other circumstances which you may wish to know, and 
 I may be able to communicate. . " — Editor. 
 
 xlix 
 
1 MADISON'S ACCOUNT OP THE ''FEDERALIST:' 
 
 "the Works of A. H" is comprized an Edition of the 
 Fediist in which the names of the writers are erroneously 
 prefixed to a number of the papers. These errors are 
 corrected in this edition by Jacob Gideon j' w assigns 
 to the several authors of the papers their respective 
 shares in them. J : M. 
 
 MONTPELIER July 28, 1818 
 
CONTENTS. 
 
 NO. I. HAMILTON. 
 
 INTRODUCTION. 
 
 Utility of the Union — Inefficiency of confederation — Capacity 1 
 of people for self-government — Opposition of state officials to new 
 constitution — Honest differences of opinion — Political intoler- 
 ance — Charges and counter-charges — Publius a supporter of the 
 proposed constitution — Outline of the Federalist — National senti- 
 mei*t^for Union, i 
 
 JAY. 
 THE VALUE OF UNION. 
 
 Necessity of government — Theory of separate confederacies — 
 Geographical and racial homogeneity of the United States — 
 Inefficiency of the articles of confederation— The federal conven- j 
 tion — Consideration of the constitution — The Congress of 1774 — 
 Universal belief in the necessity of Union — Project of separate 
 confederacies, 7 
 
 NO. 3. JAY. 
 
 ADVANTAGES AND NECESSITY IN RELATION 
 
 TO FOREIGN POWERS. 
 
 Safety of public opinion — Public safety a common end — Causes 
 of war — Treaties and commerce as causes — Efficient national 
 government will secure services of ablest men — A supreme gov- 
 ernment necessary in construing treaties — Union a check on in- 
 justice in the states — A national government less likely to afford 
 just causes of war — Indian wars caused by the states — Neighbor- 
 ing countries and consequent border wars — Advantage of na- 
 tional government in negotiating with foreign powers — Greater 
 weight of the Union likely to secure better terms, . . 12 
 
 NO. 4. JAY. 
 
 RELATIONS WITH FOREIGN POWERS. 
 
 Motives of war— Rivalry with France and Britain in fisheries 
 
 Commercial rivalry with Europe— China and India trade — 
 
 Rivalry with European colonies— Exclusion from Mississippi and 
 St. Lawrence— Jealousy of Europe— Inducements to war— A 
 single government necessary for safety — Advantages of national 
 government — Militia and navy of Great Britain — America divided 
 into independent governments— Attitude of foreign govern- 
 ments 17 
 
Hi EDITOR'S TABLE OF CONTENTS. 
 
 NO. 5. JAY. 
 
 PROJECT OF SEPARATE CONFEDERACIES IN 
 
 RELATION TO FOREIGN POWERS. 
 
 Queen Anne's letter on union of England and Scotland — 
 Example of Great Britain— Division of the United States— Results 
 of separate confederacies— Inevitable jealousy — The " Northern 
 Hive "—Similar confederacies— Folly of mere alliances and treat- 
 ies — Certainty of appeals to Europe, 22 
 
 NO. 6. HAMILTON. 
 
 SEPARATE CONFEDERACIES SURE TO END IN 
 
 DISSENSION BETWEEN STATES. 
 
 Certainty of interstate contests — Causes of hostility among 
 nations— Wars produced by personal influence — Alleged pacific 
 genius of republics — Republics as much addicted to war as mon- 
 archies — Examples of Sparta, Athens, Rome, Carthage, Venice, 
 Holland, and Britain — As many popular as royal wars — ^Wars 
 between France and England — No reason to expect cordiality 
 between the states if separated — Vicinage constitutes nations 
 natural enemies, . . 27 
 
 NO. 7. HAMILTON. 
 
 CAUSES -FOR DISSENSIONS BETWEEN STATES 
 
 IF SEPARATED. 
 
 Territorial disputes — Public territory — Wyoming controversy 
 — Vermont dispute — Competitions of commerce — Discriminating 
 commercial regulations — The New York imposts — The national 
 debt — Difficulties of apportioning debt — Laws in violation of 
 private contracts — Example of Rhode Island — Domestic and 
 foreign alliances — Certainty of European entanglements, 33 
 
 NO. 8. HAMILTON. 
 
 CONSEQUENCES OF HOSTILITIES BETWEEN 
 
 STATES. 
 
 War between the states particularly distressing — Lack of stand- 
 ing armies and fortified posts — Necessary introduction of stand- 
 ing armies — Competition between the states in armaments — 
 Example of Greek republics — National danger unduly magnifies 
 military power at expense of citizens — Example and peculiar 
 felicity of Great Britain — Similarity of the United States — 
 Needlessness of extensive military establishments, . . 41 
 
 HAMILTON. 
 'HE UNION A SAFEGUARD AGAINST DOMES- 
 TIC DISTURBANCES. 
 
 Example of Greek and Italian republics — Arguments against 
 republican government and civil liberty — Improvements in the 
 art of government — Advantages of extended territorj' — Opinion 
 
EDITOR'S TABLE OF CONTENTS. Hii 
 
 of Montesquieu — Necessity for subdivision implied in Montes- 
 quieu's view — Federalization an expedient for the extension of 
 government — Quotation from Montesquieu — Inaccurate distinc- 
 tion between confederation and consolidation — Definition of a 
 confederate republic — Federal character of proposed constitu- 
 tion — Lycian confederacy 47 
 
 NO. 10. MADISON. 
 
 THE UNION A CHECK ON FACTION. 
 
 Tendency of popular governments to faction — Complaints of 
 injustice and instability in state governments— Definition of fac- 
 tion — Remedy of faction — Curtailment of liberty — Causes of 
 faction innate in man — Opposing interests — Legislation by major- 
 ity akin to intefested judgments — Class legislation — Control of 
 faction — Majority invasion of rights — A pure democracy unable 
 to control faction — A remedy in representative government — 
 Difference between a democracy and a republic — Advantages of 
 a delegated chosen body — Superiority of large over small 
 republics — Greater proportion of fit characters — Advantage of 
 greater number of electors — Necessity of acquaintance with local 
 circumstances — ^Happy combination of national and local govern- 
 ments in the United States — Greater territory and population 
 permitted by republican than by democratic government — Fac- 
 tion essentially local — Advantage of Union over States as to 
 local prejudices and schemes of injustices — The Union a remedy 
 for diseases most incident to republics, .... 54 
 
 NO. II. HAMILTON. 
 
 UTILITY OF UNION AS REGARDS COMMERCE 
 
 AND A NAVY. 
 
 Adventurous commercial character of America — Commercial 
 jealousy of Europe — A national commercial policy necessary to 
 counteract European restrictions — Discrimination against Great 
 Britain — Establishment of a federal navy — The United States 
 likely to become the arbiter of Europe in America — Disunion 
 certain to make our commerce a prey — Separation will enable 
 maritime nations to prescribe the conditions of our political 
 existence — National commercial rights which will be lost by a 
 dissolution of the confederacy— The fisheries — A navy a great 
 national object — Share of the south, middle, and New England 
 states in a navy — Unrestrained intercourse between the states — 
 Unlikelihood of free interstate commerce without unity — Ascend- 
 ency in American affairs — European domination of the world— 
 Buffon'sandijlaynars theory of degeneracy in America, . 64 
 
 NO. 12. HAMILTON. 
 
 UTILITY OF UNION AS REGARDS REVENUE. 
 
 Commerce the great source of national wealth — Commerce 
 essential to agriculture — Taxes must be proportioned to the 
 quantity of money — Small revenues of German empire— Poverty 
 of state treasuries— Taxation in Great Britain — Duties the main 
 dependence in America — Unpopularity of excise jvnd direct taxes 
 
liv EDITOR'S TABLE OF CONTENTS. 
 
 — Duties best levied by general government — State imposts will 
 result in smuggling— Revenue patrols of France— Unlikelihood 
 of smuggling under national government— Disadvantage of 
 Britain as regards smuggling — State imposts— French and Eng- 
 lish duties — Revenue from ardent spirits— National existence 
 impossible without revenue — Necessity for imposts — Unpopu- 
 larity of excises and direct taxation— Without an impost, taxes 
 will chiefly fall on land, 72 
 
 NO. 13. HAMILTON. 
 
 ADVANTAGES OF UNION FROM THE STAND- 
 POINT OF ECONOMY. 
 
 Smaller expense of civil list — Civil lists of separate confed- 
 eracies — Example of Great Britain — Probable lines of division 
 of proposed confederacies — A northern and a southern league 
 — Position of Pennsylvania — Greater economy of one confed- 
 eracy 79 
 
 NO. 14. MADISON. 
 
 OBJECTIONS TO THE EXTENT OF TERRITORY. 
 
 An imaginary difficulty-Confusion of a republic with a democ- 
 racy — Error of celebrated authors — Slight value of example of 
 early republics — Early republics only democracies — Mechanical 
 power of representation — Natural limit of a democracy — Ex- 
 perience in representation under the confederacy — Dimensions 
 of the United States — Size of European countries — Limited juris- 
 diction of general government — Value of subordinate govern- 
 ments in relation to size of territory — Eventual growth of Union 
 — Internal improvements facilitated— The more distant the state 
 the greater the need of national government — Warning against 
 those who favor disunion, ... ... 81 
 
 NO. 15. HAMILTON. 
 
 DEFECTS OF THE PRESENT CONFEDERATION 
 
 IN ITS DEPENDENCE ON THE STATE 
 
 GOVERNMENTS. 
 
 The insufficiency of the confederation a self-evident truth — 
 Sketch of existing national humiliation — Contradictory conduct 
 of opposers of the constitution— Necessity of a government that 
 shall act on individuals — A government acting ^n the state 
 governments nothing but an alliance — Epidemic rage in Europe 
 for leagues — A league versus a confederate government in 
 America — Distinction between a government acting on a state 
 and one acting on individuals — Common interest ineilectual to 
 obtain obedience to the Union — Origin of government — Cen- 
 trifugal tendency of all confederacies — National laws will not be 
 enforced by state governments — Various action of the thirteen 
 states — Impotence of the Congress — Example of the various 
 states, 87 
 
EDITOR'S TABLE OF CONTENTS. Iv 
 
 NO. 16. HAMILTON. 
 
 DEFECT OF THE CONFEDERATION IN ITS 
 
 INABILITY TO COERCE. 
 
 The only constitutional remedy against delinquent states is 
 force — Impossibility of coercion — Sympathy between the states — 
 Probable appeal of states to foreign nations — A probable dis- 
 solution of the Union — Unlikelihood of states supporting a 
 national government — Certain degeneration into a military 
 despotism— Impossibility of coercing the larger states— Military 
 coercion a signal for civil war — The new government must 
 extend to citizens — State resistance of national law — The dis- 
 tinction between non-compliance and active resistance — The 
 new constitution puts state resistance in its true light — Employ- 
 ment of state agencies by national government — No form of gov- 
 ernment safe from revolution 96 
 
 NO. 17. HAMILTON. 
 
 REFUTATION OF THE ARGUMENT THAT A 
 
 GOVERNMENT BASED ON INDIVIDUALS 
 
 WILL BE TOO POWERFUL. 
 
 Unlikelihood that the national government will absorb the 
 residuary authority — Objects of national ambition — Local con- 
 cerns not alluring objects of general jurisdiction — Easier for the 
 states to encroach on the national authorities — Greater popularity 
 of state government — Tendency of mankind to neighborhood 
 attachment — Local justice the most attractive source of popular 
 obedience and attachment — The national government less 
 immediately connected with the people— Example in feudal 
 times — The struggle between king and baron — Example of 
 clanship in Scotland — State governments compared with feudal 
 baronies — Local governments certain to possess the confidence of 
 the people, . . . . 105 
 
 NO. 18. HAMILTON AND MADISON. 
 
 EXAMPLES OF GREEK CONFEDERACIES. 
 
 Amphictyonic council, its powers in history — The Achaean 
 league 108 
 
 NO. 19. HAMILTON AND MADISON. 
 
 EXAMPLES OF MEDIEVAL AND MODERN CON- 
 FEDERACIES. 
 
 The German empire — Example of Poland— The Swiss con- 
 federacy 114 
 
 NO. 20. HAMILTON AND MADISON. 
 
 EXAMPLE OF THE UNITED NETHERLANDS. 
 
 Nature of government— Historical illustrations— The • present 
 condition, 119 
 
Ivi EDITOR'S TABLE OF CONTENTS. 
 
 NO. 21. HAMILTON. 
 
 SPECIFIC DEFECTS IN THE CONFEDERATION. 
 
 No sanction of laws — No mutual guarantee of state govern- 
 ments — Dangerous possibility of despotism — Advantage of a 
 national guarantee— System of quotas and its unfairness — Diffi- 
 culty in finding a basis of taxation — Comparison between the 
 states in respect to wealth — Complex sources of wealth and 
 taxable ability — Inequality of taxation sure to destroy union — 
 The national government must raise its own revenues — Ten- 
 dency of taxation to distribute itself — Taxes on articles of 
 consumption prescribe their own limit — Distinction between 
 indirect and direct taxes — Difficulties involved with direct 
 taxes, .... 123 
 
 NO. 22. HAMILTON. 
 
 DEFECT OF THE ARTICLES OF CONFEDERA- 
 TION AS TO COMMERCE, ARMY, STATE 
 EQUALITY, JUDICIARY, AND CON- 
 GRESS. 
 
 Want of power to regulate commerce — Commercial treaties 
 impossible — Separate prohibitions of certain states — Irritation 
 between the United States — Commerce of Germany— Quotas 
 of soldiers — Competition and results in expense and bounties — 
 Equal suffrage of the states a great evil— And contradicts a 
 fundamental maxim of republican government — Minority gov- 
 ernment — Resulting evils in congress — A check on good legisla- 
 tion as well as on bad — Result as to foreign nations — Republics 
 subject to foreign corruption — One advantage of monarchy — 
 Example of United Provinces — Crowning defect of the confed- 
 eration a want of judiciary power — Necessity for a supreme 
 tribune — Thirteen separate courts an impossibility — Evils of a 
 single assembly or congress — The confederation ratified by the 
 states, not by the people, .... . . 131 
 
 NO. 23. HAMILTON. 
 
 NECESSITY OF A GOVERNMENT AT LEAST 
 
 EQUALLY ENERGETIC WITH THE ONE 
 
 PROPOSED. 
 
 Objects to be provided for by national Government — Armies 
 and fleets— Condition under present confederation — Vain project 
 of legislating upon the states— Laws must be extended to 
 individual citizens — The essential point in a compound govern- 
 ment a discrimination of power— Fleets and armies from this 
 point of view, 144 
 
 NO. 24. HAMILTON. 
 
 POWERS CONFERRED BY NEW CONSTITUTION 
 
 IN REGARD TO NATIONAL FORCES. 
 
 Alleged want of proper provision against the existence of 
 standing armies in time of peace — Restriction of the legislative 
 authority as regards military establishments an unheard of 
 
EDITOR'S TABLE OF CONTENTS. Ivii 
 
 principle^Where the constitution vests control — Clauses in the 
 state constitutions in regard to a standing army — The same 
 clause in the Articles of Confederation — Dangers threatening 
 America— Necessity for Western garrisons — British and Spanish 
 colonies — Protection of navy yards and arsenals, . . 150 
 
 NO. 25. HAMILTON. 
 
 NATIONAL FORCES COMPARED WITH STATE 
 
 FORCES. 
 
 Necessity of national control of army and navy — Situation of 
 states as regards foreign enemies — Critical position of New 
 York — State governments natural rivals of the national — Like- 
 lihood that the people will support their local government — 
 The states restrained from standing forces — Want of definition 
 in proposed negative on standing armies — Impossibility of a 
 conspiracy between the executive and the legislative depart- 
 ments — Actual effect of a prohibition on standing armies — 
 Inadequacy of the militia — Recent experience of Pennsylvania 
 and Massachusetts — Experience of the Lacedaemonians, . 156 
 
 NO. 26. HAMILTON. 
 
 ABSURDITY OF RESTRAINING THE LEGISLA- 
 TIVE AUTHORITY AS TO NATIONAL 
 DEFENSE. 
 
 Popular revolutions not able to apportion power and priv- 
 ilege — The restraint on legislatures as to defense in the state 
 constitutions — General decision of America opposed to such re- 
 straint — History of the restriction on standing army in Great 
 Britain — Present condition in that country — An hereditary 
 prejudice against standing armies in America — The state consti- 
 tutions — Clause in Pennsylvania and North Carolina constitu- 
 tions—Biennial appropriations under the new constitution for 
 army — Absurdity of the predictions of the subversion of the 
 liberty of America — Impossibility of greatly augmenting the 
 army — Danger from the executive — Danger all the greater in a 
 disunited state, 162 
 
 NO. 27. HAMILTON. 
 
 IMPOSSIBILITY OF A NATIONAL GOVERNMENT 
 
 WITHOUT A NATIONAL FORCE. 
 
 Alleged disinclination of the people to federal authority — A 
 people's obedience to a government proportioned to its good- 
 ness or badness — Likelihood that the general government will 
 be better administered than those of the states — Especial value 
 of the national senate — Greater power of the nation in controll- 
 ing sedition and faction — Government should be felt by citizens 
 — Certainty that a union will need to employ force less often 
 than separate confederacies — The general government able to 
 use ordinary legal processes — Peculiar advantage enjoyed by 
 national laws, . 169 
 
Iviii EDITOS^S TABLE OF CONTENTS. 
 
 NO. 28. HAMILTON. 
 
 CONDITIONS WHICH NECESSITATE A 
 
 NATIONAL FORCE. 
 
 Insurrections a malady inseparable from the body politic— An 
 insurrection a danger to all government— Experience of Massa- 
 chusetts and Pennsylvania— New York vs. Vermont— Separate 
 confederacies subject to same conditions as the Union — A full 
 answer to objection is that the power is in the hands of the repre- 
 sentatives of the people— Certain success of popular resistance to 
 usurpation— Advantage of large territory and of state govern- 
 ments—Impossibility of a large standing army, . . . i74 
 
 NO. 29 [35]. HAMILTON. 
 
 THE POWER OF REGULATING THE MILITIA. 
 
 A natural incident to common defense— Uniformity in the 
 militia beneficial— Limited powers of national government con- 
 cerning state forces— Contention concerning posse comitatus — 
 Absurdity of the militia proving a danger if controlled by 
 general government — Certain grievance of frequent military 
 exercises— Advantage of select corps— The states certain to have 
 a preponderant influence over the militia — Example of publica- 
 tions against the constitution— Exaggerated suggestions con- 
 cerning misuse of militia — Conduct of militia in case of at- 
 tempted despotism— The general government alope able to 
 use the militia to protect the states I79 
 
 NO. 30 [29]. HAMILTON. 
 
 GENERAL POWER OF NATIONAL TAXATION. 
 
 National needs for revenue — Money the vital need in govern- 
 ment — Evils resulting from lack of revenue — Example of the 
 Turkish Empire — Example in breakdown of confederation — 
 Revenue unlimited under Articles of Confederation — Erroneous 
 principles in that compact — Consequences of the system — A 
 remedy in abandonment of quotas and requisitions — The wished- 
 for distinction between internal and external taxes — The funda- 
 mental principle of national government — The resources of a 
 nation equal to its necessities — Proposition to supply the deficien- 
 cies in external taxes by requisition — Result of limited taxa- 
 tion in times of war — The national government should possess 
 an unrestrained power of taxation — The power of taxation 
 a certain means of borrowing, 187 
 
 NO. 31 [30]. HAMILTON. 
 
 UNLIMITED NATIONAL TAXATION NOT A 
 
 ROAD TO DESPOTISM. 
 
 Principles of logic applied to the necessity of a general power 
 of taxation — Recapitulation of the necessity of unlimited national 
 revenue — View of the opponents of the constitution — Necessity 
 of revenue for local administrations — Probable absorption of all 
 taxation by national government— Improbability of usurpation 
 
EDITOR'S TABLE OF CONTENl^S. lix 
 
 by the federal government — Why not in state governments as 
 well ? — Disposition of the state governments to encroach on the 
 union — State governments will probably possess most influence 
 over people — The people alone can preserve the equilibrium 
 bet weeir tfae general and state government, . . . .193 
 
 ^O. 32 [31J/ HAMILTON. 
 
 SRENTIATION OF POWERS BETWEEN 
 
 NATIONAL AND STATE GOVERNMENTS, 
 
 WITH ESPECIAL RESPECT TO 
 
 TAXATION. 
 
 Necessity that the states should possess independent objects 
 of revenue — The federal constitution only a partial union 
 — Three cases of alienation of state sovereig^nty — Exclusive legis- 
 lation by national government — Three instances of such power — 
 Power of taxation a concurrent right — A double tax a question 
 of expediency and not of inability — Concurrent jurisdiction 
 results from the division of the sovereign power, . . 197 
 
 NO. 33 [31]. HAMILTON. 
 
 TAXATION CONSIDERED WITH RESPECT TO 
 
 GENERAL POWERS. 
 
 The general clauses sources of unnecessary alarm — Definition 
 of power — The sweeping clauses chargeable with tautology, but 
 perfectly harmless — Reason for their introduction — The national 
 government necessarily its own judge in law making — Supposed 
 case of invasion of state sovereignty — Nature of laws considered 
 in regard to supreme law — A national law not supreme when a 
 usurpation — The power of the states as to revenue, . . 201 
 
 NO. 34 [32]. HAMILTON. 
 
 ^HE CONCURRENT JURISDICTION IN TAXA- 
 TION OF THE STATES AND NATION. 
 
 The states will retain abundant sources of revenue — An exam- 
 ple of co-ordinate authority from Roman history — The wants of 
 the state will reduce themselves to very narrow compass — Neces- 
 sity to provide for more than existing national exigencies of 
 revenue — The nation must be in a position to protect itself — The 
 passions of war reign in the human breast — War expenses of 
 Europe compared with expenses of civil list — Especial illustration 
 in Great Britain — Example of Revolutionary debt — Amount 
 needed for expense of states — Possible partition of revenue be- 
 tween states and nation — External and internal taxation — Con- 
 current taxation the only admissible system, . . . 206 
 
 NO. 35 [33]. HAMILTON. 
 
 ANSWERS TO OBJECTIONS TO INDEFINITE 
 
 POWERS OF TAXATION. 
 
 A limitation of taxation will result in undue burdens on partic- 
 ular objects — A restriction to duties would result in their increase 
 to an injurious excess— High duties produce smuggling, undue 
 
Ix EDITOR'S TABLE OF CONTENTS. 
 
 favoring of manufacturing classes, and oppression of the mer- 
 chant—Payment of duties falls upon both seller and buyer— Con- 
 sideration of the maxim that the consumer pays the duties— High 
 duties certain to be attended with inequality— An equalization 
 only to be obtained by excises — Special interest of New York — 
 The desire for revenue likely to limit excess in duties — Consider- 
 ation of the objection that the House of Representatives is too 
 small— Actual representation of all classes purely visionary- 
 Interests of mechanics and manufacturers — Of the learned pro- 
 fessions—Of the landed interests— Taxation of land— The repre- 
 sentative body will be chiefly composed of landholders — Mutual 
 interest of all classes — Responsiveness of representatives to public 
 opinion — Extensive information needed in the business of taxa- 
 tion — The most productive system of finances is the least burth- 
 ensome 213 
 
 NO, 36 [34]. HAMILTON. 
 
 TAXATION CONSIDERED MORE ESPECIALLY 
 
 AS REGARDS INTERNAL TAXES. 
 
 Taxation for the benefit of individuals — Little affinity between 
 various classes of society — Assertion that the nation cannot exer- 
 cise the power of taxation with advantage — The same power in 
 the state legislatures — Usual method of laying taxes — Internal 
 taxes divided into direct and indirect — Indirect taxes are duties 
 and excises on articles of consumption — In laying these taxes the 
 principal object should be to avoid objects already taxed by par- 
 ticular states — The objection to direct taxes — Method of laying 
 land taxes — The nation can use the method of each state — Direct 
 taxes must be apportioned by population — The abuse of direct 
 taxes provided against with guarded circumspection — Proposition 
 that the nation shall collect all internal taxes by requisition — 
 Impossibility that the revenue laws of nation and states will 
 clash — A small land tax sufficient for the states — Specters raised 
 out of this power of internal taxation— Double sets of tax collec- 
 tors — ^Probable employment of state officials — Unlikelihood of 
 double taxation — Poll taxes, 219 
 
 NO. 37 [36]. MADISON. 
 
 DIFFICULTIES OP THE CONVENTION IN FRAM- 
 ING A CONSTITUTION. 
 
 Difficulty of discussing public measures in the right spirit — 
 Predetermined 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, . . 227 
 
 NO. 38 [37]. MADISON. 
 
 INCOHERENCE OF THE OBJECTIONS TO THE 
 
 CONSTITUTION. 
 
 All governments of deliberation and consent hitherto framed 
 by individuals — Examples — Errors in the new system arise from 
 
EDITOR'S TABLE OF CONTENTS. Ixi 
 
 (ack of experience — The present situation of America — Existing 
 evils shown, and the futility of the objections and remedies of the 
 opposition, . 237 
 
 NO. 39 [38]. MADISON. 
 
 THE CONSTITUTION STRICTLY REPUBLICAN. 
 
 Only a republican system possible for America — The principles 
 of republican government shown by examples — The proposed 
 constitution conforms to the standard — Proofs of this from the 
 provisions of the constitution — Neither wholly national nor wholly 
 federal, . 245 
 
 NO. 40 [39]. MADISON. 
 
 THE RIGHT OF THE CONVENTION TO FRAME 
 
 SUCH A CONSTITUTION. 
 
 The authority under which the convention acted examined — 
 Proper even to have exceeded authority, from consideration of 
 duty— Constitution merely recommended — Necessity for a radical 
 change — Whether the convention exceeded its powers does not 
 affect the question of ratification, . . ... 252 
 
 NO. 41 [40]. MADISON. 
 
 VIEW OF POWERS SUPPOSED TO BE VESTED 
 
 IN THE UNION. 
 
 The quality of power conferred — Not greater than it should be 
 — General objections considered — The objects of the powers con- 
 ferred — Declaring war and granting .letters of marque — Provid- 
 ing armies and fleets — Regulating and calling out the militia — 
 Levying taxes and borrowing money, . . 260 
 
 NO. 42 [41]. MADISON. 
 
 POWERS GOVERNING INTERCOURSE WITH 
 
 FOREIGN NATIONS AND BETWEEN 
 
 THE STATES. 
 
 Regulation of intercourse with foreign nations — Ambassadors, 
 consuls, and treaties — Punishment of piracy, felonies on the high 
 seas, and offenses against the laws of nations — Regulation of 
 foreign ""tnmofr-p—TTTg <:gTiptir.n nf the slavc tra de — Objections 
 nr\ that point considered — Maintenance 01 narmony and proper 
 intercourse among the states — Interstate commerce and the 
 Indian trade — Coinage of money — Punishment of counterfeiters 
 Standard of weights and measures — Naturalization — Bank- 
 ruptcy laws — Rule for proving public acts — Postroads and post- 
 offices, . 271 
 
 NO. 43 [42I. MADISO'N. 
 
 MISCELLANEOUS POWERS. 
 
 Miscellaneous powers— Copyrights and patents— The federal 
 city— Punishment of treason— Admission of new states— Govern- 
 
Ixii EDITOR'S TABLE OF CONTENTS. 
 
 ment of territories and control of public property— Guaranty to 
 every state of a republican form of government — Protection of 
 state against invasion and against domestic violence — Assump- 
 tion of payment of outstanding debts— Amendments to the 
 constitution— The establishment of this government on the 
 adherence of nine states— Objection that this is a violation of 
 the confederation— Relations between ratifying states and those 
 v?hich refuse to ratify, 2^° 
 
 NO. 44 [43]. MADISON. 
 
 RESTRICTIVE POWERS ON THE STATES. 
 
 'Forbidding the establishment of treaties and alliances between 
 the states— Issue of letters of marque — Coinage of money — Issue 
 of bills of credit— Establishment of any legal tender other than 
 gold and silver— Bills of attainder — Ex-post-facto laws— Laws 
 impairing contracts — Titles of nobility — 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 enumeration 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, 294 
 
 NO. 45 [44]. MADISON. 
 
 THE WHOLE MASS OP NATIONAL POWER IN 
 
 RELATION TO THE STATE GOVERNMENTS. 
 
 The new constitution not dangerous to the state governments 
 — ^Tendency in confederacies is to weaken the central power — 
 State governments will have more influence among the people — 
 State governments are essential parts of the federal government 
 — The officers of the United States are less numerous than those 
 of the states — The reserved powers are relatively gfreater than 
 those delegated — Proposed change consists less in giving new 
 than in strengthening old powers, 303 
 
 NO. 46 [45]. MADISON. 
 
 THE RELATIVE INFLUENCE OF THE FEDERAL 
 
 AND THE STATE GOVERNMENTS WITH 
 
 THE PEOPLE. 
 
 Federal and state governments only different agents of the 
 same constituents — ^The first attachment of the people will be 
 to the state governments — Popularity will come to the federal 
 government only if it is better administered — Objection on score 
 of federal military power answered — Concluding remarks on the 
 proposition that the powers of the Union will be dangerous to the 
 state governments, 310 
 
EDITOR'S TABLE OF CONTENTS. Ixiii 
 
 NO. 47 [46]. MADISON. 
 
 SEPARATION OF THE DEPARTMENTS OF 
 
 POWER. 
 
 The maxim that there should be separate and distinct depart- 
 mients, considered — This maxim true — The new constitution does 
 not violate it — The views of Montesquieu — The provisions of 
 the various state constitutions on this point examined, . 319 
 
 NO. 48 [47]. MADISON. 
 
 MEANS OF GIVING INDEPENDENCE TO THE 
 
 DIFFERENT DEPARTMENTS. 
 
 Powers of one ^iepartment, it is conceded, should not be ex- 
 ercised by another — One department should not have an overrul- 
 ing influence over another — Security against the invasion of one 
 department by another, considered — The tendency of the legis- 
 lative to absorb the other departments — An instance of encroach- 
 ments in Virginia — Experience of Pennsylvania, . . 327 
 
 NO. 49 [48]. [?] MADISON. 
 
 PROBABLE EXCESSIVE INFLUENCE OF THE 
 
 LEGISLATIVE DEPARTMENT. 
 
 Propriety of a well-defined mode of appealing to the people — 
 A sufficient remedy — Very dangerous and useless if too fre- 
 quently applied — Reasons for this — "When such appeals are 
 useful — Remarks on occasional appeals to the people, . 334 
 
 NO. 50 [49]. [?] MADISON. 
 
 PERIODICAL CORRECTING OF INFRACTIONS 
 
 OF THE CONSTITUTION. 
 
 The merits and disadvantages of short and long intervals — 
 Example of Pennsylvania, 339 
 
 NO. 51 [50]. [?] MADISON. 
 
 METHOD OF BALANCING THE DEPARTMENTS 
 
 OF GOVERNMENT 
 
 Modes of obtaining mutual checks and balances — Advan- 
 tages of the federal government in securing the rights of the 
 people— Division of the delegated powers— Different interests 
 among the people 342 
 
 NO. 52 [51]. [?] HAMILTON. 
 
 QUALIFICATION AND TERM OP HOUSE OF 
 
 REPRESENTATIVES. 
 
 Electors— The qualifications of the members— The term of 
 office— Biennial elections— Value of frequent elections— Terms of 
 service in other governments— In England, Ireland, and in the 
 American colonies— Biennial elections not dangerqus- Reasons 
 for this drawn from the nature and position of Congress, . 348 
 
Ixiv EDITOR'S TABLE OF CONTENTS. 
 
 NO. 53 [52]. [?] HAMILTON. 
 
 TERM OF HOUSE OF REPRESENTATIVES. 
 
 Objection that when annual elections end tyranny begins, 
 answered — Biennial elections necessary and useful — Objections 
 to unduly short terms— Biennial elections useful and safe, . 353 
 
 NO. 54 [53]. [?] HAMILTON. 
 
 RATIO OF REPRESENTATION IN LOWER 
 
 BRANCH. 
 
 Numbers the proper standard for representation — Slave repre- 
 sentation — Objection that slaves do not enter into local represen- 
 tation, considered — The right of representation »£ property as well 
 as persons — 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, . 360 
 
 NO. 55 [54]. [?] HAMILTON. 
 
 SIZE OF THE HOUSE OF REPRESENTATIVES. 
 
 Importance attached to this subject— Difficulty of determin- 
 ing the proper number — Small states require smaller ratios — 
 Limited powers of Congress do not demand a numerous repre- 
 sentation — Various objections considered and answered — Sources 
 of danger considered, . . 366 
 
 NO. 56 [55]. [?] HAMILTON. 
 
 NECESSARY KNOWLEDGE IN THE REPRE- 
 SENTATIVE CONSIDERED IN RELATION 
 TO THE RATIO OF REPRE- 
 SENTATION. 
 
 Objection that Congress will be too small to know the in- 
 terests and wishes of its constituents, considered — The repre- 
 sentative ought to know the interests of his constituents — 
 Objects of federal legislation — A few representatives will 
 be sufficient — Taxation — Militia — The experience of Great 
 Britain, . 372 
 
 NO. 57 [56]. [?] HAMILTON. 
 
 UNLIKELIHOOD THAT THE HOUSE OF REPRE- 
 SENTATIVES WILL ELEVATE THE FEW 
 ABOVE THE MANY. 
 
 This objection, in principle, strikes at the root of represent- 
 ative government— Members elected by and taken from all 
 classes— Securities to insure fidelity of members, enumerated — 
 Provisions for electing members, and their qualifications, like 
 those of state officers — The relative numbers of the constituen- 
 cies no reason for approval of state and disapproval of federal 
 system — The doctrine neither reasonable nor admissible — It is 
 not sustaine/l by facts— Examples from House of Commons and 
 from the states, 377 
 
EDITOR'S TABLE OF CONTENTS. Ixv 
 
 NO. 58 [57]. [?] HAMILTON. 
 
 FUTURE AUGMENTATION OP THE HOUSE OF 
 REPRESENTATIVES. 
 
 The state constitutions compared on this point with the one 
 proposed — The practice of the state governments — The organiz- 
 ation of Congress will induce watchfulness — The large states will 
 control the small — Objections that the Senate will prevent aug- 
 mentation answered — The constitutional resource of refusing 
 supplies by the House — Reasons against a numerous House — 
 Objection to a majority being a quorum, considered, . 383 
 
 NO. 59 [58]. HAMILTON. 
 
 THE NATIONAL REGULATION OF ELECTIONS. 
 
 Every government must have the means of self-preserva- 
 tion — Different depositaries of this power considered — Exact 
 character and extent of this power — If this power be not given, 
 the federal government will be at the mercy of the state govern- 
 ments — The right of self-preservation in the state governments 
 unimpaired — Objection that the power of the states in the election 
 of senators is equally dangerous, considered — Reasons for this 
 retention of power — Objection that the interests of each state will 
 be a sufficient security against the abuse of the power to control 
 the election of members by the state governments, con- 
 sidered, 391 
 
 NO. 60 [59]. HAMILTON. 
 
 NECESSITY OF SUCH NATIONAL CONTROL. 
 
 Objection that by this power Congress may promote the elec- 
 tion of a favorite class and exclude others, considered— Reasons 
 for dismissing this objection, enumerated 397 
 
 NO. 61 [60]. HAMILTON. 
 
 ADVANTAGE OF THE POWER IN SECURING 
 
 UNIFORMITY IN ELECTIONS. 
 
 Objection that there should be a provision that all elections 
 should be held within the counties where the electors live- 
 Such a provision harmless and offers no security— This provision 
 compared with those of state constitutions— The probability that 
 the power of Congress to fix a uniform day for elections will be 
 very important— The want of any provisions in the constitution 
 fixing such a day, considered— Concluding remarks on the general 
 subject, 404 
 
 NO. 62. m HAMILTON. 
 
 THE CONSTITUTION OF THE SENATE. 
 
 Qualifications of senators— Appointment of senators by state 
 legislatures— Equality of representation m Senate— Mixed char- 
 acter of federal government requires a mixed representation— 
 
Ixvi EDITOR'S TABLE OF CONTENTS. 
 
 Equal representation in Senate a recognition of sovereignty in 
 the states— The number of senators and the term for which they 
 are elected — Need of such an upper house as a security against 
 improper legislation — Against the infirmity of faction — Against 
 ignorant legislation — Against mutability in its councils from 
 frequent changes of members — Dangers of such mutability, 
 enumerated 408 
 
 NO. 63. [?] HAMILTON. 
 
 TERM OP APPOINTMENT OP THE SENATE. 
 
 Prevents a want of a due sense of national character, and of a 
 due responsibility — A defense against temporary errors and 
 delusions — History shows no long-lived republic without a Senate 
 — Difference between the ancient republics and the United States 
 — Athens, Carthage, Sparta, Rome, Crete— Objection that the 
 Senate will acquire a dangerous pre-eminence, considered — Such 
 a result impossible — Senate of Maryland — British Parliament — 
 Sparta, Rome, Carthage — The controlling influence of the House 
 of Representatives, 416 
 
 NO. 64. JAY. 
 
 TREATY-MAKING POWER OF SENATE. 
 
 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 426 
 
 NO. 65. HAMILTON. 
 
 IMPEACHMENT POWER OP SENATE. 
 
 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 delega- 
 ting this authority to the supreme court, considered and rejected 
 — The propriety of uniting the supreme court in this power with 
 the Senate, considered and denied — The propriety of giving this 
 authority to other persons disconnected with any department of 
 the government, considered and denied — Even if this power in 
 the Senate is not desirable the constitution should not be 
 rejected, 433 
 
 NO. 66. HAMILTON. 
 
 OBJECTION TO IMPEACHMENT POWER OP 
 
 SENATE BECAUSE A JUDICIAL POWER. 
 
 Objection that it unites legislative and judicial functions— 
 This same provision in constitution of New York— That it un- 
 duly accumulates power in the Senate, and tends to the establish- 
 ment of an aristocracy — That the senate will judge too leniently 
 officers for whose confirmation it has voted — That the senators 
 may be called upon to try themselves for a corrupt use of the 
 treaty-making power, 4^0 
 
EDITOR'S TABLE OF CONTENTS. Ixvii 
 
 NO. 67. HAMILTON. 
 
 THE EXECUTIVE DEPARTMENT. 
 
 Difficulties in constitution — Exaggeration of powers — Misrep- 
 resentation concerning vacancies in Senate by Cato, . . 447 
 
 NO. 68. ' HAMILTON. 
 
 METHOD OF APPOINTING THE PRESIDENT. 
 
 The only part of the constitution not condemned by its oppo- 
 nents — 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 main- 
 tain the President independent of all but the people — All these 
 advantages here combined — Choice will seldom fall on- one not 
 qualified — The choice of a Vice President by the people, consid- 
 ered and approved, 451 
 
 NO. 69. HAMILTON. 
 
 COMPARISON OP PRESIDENT WITH OTHER 
 
 EXECUTIVES AS TO POWERS. 
 
 A single person — Compared with the king of Great Britain and 
 the governor of New York — Elected for four years, and is re- 
 eligible — Further comparison with the same executives — Liable 
 to impeachment, removal from office, 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 the governor of Massachusetts — Commander- 
 in-chief of the army and navy of the United States— Compared 
 again as above, and also with the governors of New Hamp- 
 shire and Massachusetts — Pardoning power — Compared as above 
 — Treaty-making power — Compared as above — General review 
 and comparison of executive powers, 457 
 
 NO. 70. HAMILTON. 
 
 ADVANTAGE OF SINGLE EXECUTIVE. 
 
 A vigorous executive consistent with republican government — 
 What constitutes a proper executive — Unity — Reasons for this — 
 Vesting executive authority in two or more magistrates — Re- 
 straining the executive by a council — Objections to plurality and 
 control by council enumerated, ...... 466 
 
 NO. 71. HAMILTON. 
 
 PRESIDENTIAL TERM OF OFFICE. 
 
 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 depart- 
 ments of government necessary — Shortness of term will lessen 
 independence — The proposed term of four years considered, 475 
 
Ixviii EDITOR'S TABLE OF CONTENTS. 
 
 NO. 72. HAMILTON. 
 
 RE-ELIGIBILITY OF THE PRESIDENT. 
 
 Duration in oifice afEects stability of administration— Heads of 
 department dependent on executive and will change with him — 
 Re-eligibility of executive — The opposition to it considered — A 
 limit of a single term would diminish inducements to good be- 
 havior, 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 481 
 
 NO. 73. HAMILTON. 
 
 PRESIDENTIAL SALARY AND VETO. 
 
 Without suitable provision the executive will be at the mercy 
 of the legislature, and the independence of the executive should 
 not be impaired — The veto power — Reasons for and against 
 enumerated and considered — The veto power not absolute — It 
 already exists in New York and Massachusetts, . . 488 
 
 NO. 74. HAMILTON. 
 
 PRESIDENTIAL COMMAND OF NATIONAL 
 
 FORCES AND POWER OF PARDON. 
 
 Command over army and navy and militia — Power to consult 
 executive officials — ^Need of the pardoning power — Special con- 
 sideration of the pardoning power as regards treason — Advan- 
 tage of prompt use of pardon — Incident of Massachusetts — Loss 
 of time if pardoning power were vested in legislature, . 496 
 
 NO. 75- HAMILTON. 
 
 PRESIDENTIAL POWER IN TREATIES. 
 
 One of the best features of the constitution — Objection that 
 it combines the executive and legislative departments consid- 
 ered — It is a proper combination — Reasons for this — House of 
 Representatives cannot properly be admitted — Objection to re- 
 quiring only two-thirds of senators present, . . . 499 
 
 NO. 76. HAMILTON. 
 
 PRESIDENTIAL POWER OF APPOINTMENT. 
 
 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— Objection that the President may thus 
 control Senate, considered — Whole body of Senate cannot be cor- 
 rupted — Protection of constitution, 505 
 
EDITOR'S TABLE OF CONTENTS. Ixix 
 
 NO. 77. HAMILTON. 
 
 APPOINTMENT TO OFFICE AND REMAINING 
 
 POWERS OF PRESIDENT. 
 
 The concurrence of the Senate necessary to displace as well 
 as to appoint— Objections as to undue control of the Senate by 
 the President, or the reverse, considered — Compared with sys- 
 tem of appointment in New York — Appointing power should be 
 delegated to a council or shared in by the House — Power to 
 communicate information to Congress— 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 
 oificers of the United States — Concluding remarks on the 
 executive, 511 
 
 NO. 78. HAMILTON. 
 
 TENURE OF OFFICE OF JUDICIAL DEPART- 
 MENT. 
 
 Mode of appointment — Tenure— Need of complete independ- 
 ence—Authority to pronounce on the constitutionality of the 
 laws — The legislature 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, 517 
 
 NO. 79. HAMILTON. 
 
 SUPPORT AND RESPONSIBILITY OF THE 
 
 JUDICIARY. 
 
 A fixed provision for the support of the judiciary necessary to 
 their independence — Responsibility of the judiciary — Judges 
 liable to impeachment — Cannot be made removable for inability 
 — Reasons for this — Comparison with constitution of New 
 York, 527 
 
 NO. 80. HAMILTON. 
 
 EXTENT OF THE POWERS OF THE JUDICIAL 
 
 DEPARTMENT. 
 
 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 different states, are 
 parties; which originate on high seas or are of admiralty jurisdic- 
 tion; in which state tribunals cannot be supposed to be impli- 
 cated — To what cases authority of judiciary will extend under 
 proposed constitution — Statement of constitutional provisions — 
 These provisions conform to what the powers of the judiciary 
 ought to be— Propriety of delegating equity jurisdiction, . 530 
 
Ixx EDITOR'S TABLE OF CONTENTS. 
 
 NO. 8i. HAMILTON. 
 
 DISTRIBUTION OF THE AUTHORITY OF THE 
 
 JUDICIARY. 
 
 Propriety of establishing one court of final and supreme ju- 
 risdiction — Propriety of delegating judicial authority to a distinct 
 department— Objections to this considered— This delegation of 
 authority secures more completely the separation of the judiciary 
 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 encroachments by the 
 judiciary on the legislature, considered— Propriety of constituting 
 inferior courts — Relief to supreme court — State courts not fitfor 
 this — Advantage of dividing United States into judicial districts 
 — Manner in which authority should be distributed- Original 
 jurisdiction of supreme court — Original jurisdiction of inferior 
 courts — Appellate jurisdiction of supreme court, . . 538 
 
 NO. 82. HAMILTON. 
 
 SOME MISCELLANEOUS QUESTIONS REGARD- 
 ING JUDICIARY. 
 
 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 Congress exclusively to supreme court — Relation 
 between state and federal courts when they have concur- 
 rent jurisdiction — An appeal will lie from state courts to the 
 supreme court — The appellate jurisdiction of the inferior federal 
 courts, 550 
 
 NO. 83. HAMILTON. 
 
 TRIAL BY JURY IN RELATION TO NATIONAL 
 
 JUDICIARY. 
 
 Objection that there is no provision in the proposed consti- 
 tution for trial by jury in civil cases considered — True meaning 
 of maxims on which this objection rests — Importance of right 
 of trial by jury considered — Criminal and civil cases — Jury system 
 in different states — Difficulty of establishing a general rule — 
 Impropriety of such a general rule in certain cases — The propo- 
 sition of Massachusetts— The provisions of the New York consti- 
 tution—The proposition that the jury system should be established 
 in all cases whatever — Concluding remarks, . . 555 
 
 NO. 84. HAMILTON. 
 
 LACK OF A BILL OF RIGHTS. 
 
 Bill of rights^Liberty of the press — Seat of government too 
 
 remote — More provision for debts due to the United States 
 
 Additional expenses of new system — Concluding remarks, . 569 
 
EDITOR'S TABLE OF CONTENTS. Ixxi 
 
 NO. 85. HAMILTON. 
 
 CONCLUSION. 
 
 Manner in which subject has been discussed — An appeal to 
 the reader to weigh the matter carefully and act conscientiously — 
 Confidence of Publius in the arguments which he has advanced — 
 The conceded 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 , . . 581 
 
HAMILTON'S TABLE OF CONTENTS. 
 
 PAGE 
 
 I. Introduction, i 
 
 II. Concerning dangers from foreign force and influ- 
 ence, -J 
 
 III. The same subject continued, . . . . 12 
 
 IV. The same subject continued, 17 
 
 V. The same subject continued 22 
 
 VI. Concerning dangers from war between the states, 27 
 VII. The subject continued and particular causes 
 
 enumerated, 33 
 
 VIII. The effects of internal war in producing standing 
 armies and other institutions unfriendly to lib- 
 erty 41 
 
 IX. The utility of the Union as a safeguard against 
 
 domestic faction and insurrection, . . .47 
 
 X. The same subject continued 54 
 
 XI. The utility of the Union in respect to commerce 
 
 and a navy, 64 
 
 XII. The utility of the Union in respect to revenue, . 72 
 
 XIII. The same subject continued, with a view to 
 
 economy 79 
 
 XIV. An objection drawn from the extent of country 
 
 answered, 81 
 
 XV. Concerning the defects of the present confedera- 
 tion, in relation to the principle of legislation 
 for the states in their collective capacities, . 87 
 XVI. The same subject continued, in relation to the 
 
 same principle, .96 
 
 XVII. The subject continued, and illustrated by exam- 
 ples to show the tendency of federal govern- 
 ments, rather to anarchy among the members 
 
 than tyranny in the head, 103 
 
 XVIII. The subject continued, with farther examples, . 108 
 
 XIX. The subject continued, with farther examples, . 114 
 
 XX. The subject continued, with farther examples. . 119 
 
 XXI. Further defects of the present constitution, . 123 
 
 XXII. The same subject continued and concluded, . 131 
 
 XXIII. The necessity of a government, at least equally 
 
 energetic with the one proposed, . . . 144 
 
 XXIV. The subject continued, with an answer to an ob- 
 
 jection concerning standing armies, . . . 150 
 
 XXV. The subject continued with the same view, . .156 
 
 XXVI. The subject continued with the same view, . . 162 
 
 XXVII. The subject continued with the same view, . . 169 
 
 Ixxiii 
 
Ixxiv 
 
 HAMILTON'S TABLE OF CONTENTS. 
 
 PAGE 
 
 XXVIII. The same subject concluded, . . • I74 
 
 XXIX. Concerning the militia I79 
 
 XXX. Concerning taxation 187 
 
 XXXI. The same subject continued I93 
 
 XXXII. The same subject continued I97 
 
 XXXIII. The same subject continued, . . . .201 
 
 XXXIV. The same subject continued, .... zo6 
 XXXV. The same subject continued, .... 213 
 
 XXXVI. The same subject concluded, .... 219 
 XXXVII. Concerning the difficulties which the convention 
 must have experienced in the formation of a 
 
 proper plan 227 
 
 XXXVIII. The subject continued, and the incoherence of 
 
 the objections to the plan exposed, . . 237 
 XXXIX. The conformity of the plan to republican prin- 
 ciples : An objection in respect to the powers 
 of the convention, examined, .... 245 
 XL. The same objection further examined, . . 252 
 XLI. General view of the powers proposed to be 
 
 vested in the Union, . . ... 260 
 
 XLII. The same view continued, 271 
 
 XLIII. The same view continued, .... 280 
 
 XLIV. The same view continued and concluded, . . 294 
 XLV. A further discussion of the supposed danger 
 from the powers of the Union, to the state 
 
 governments, 303 
 
 XL VI. The subject of the last paper resumed ; with an 
 examination of the comparative means of in- 
 fluence of the federal and state governments, 310 
 XL VII. The meaning of the maxim, which requires a 
 separation of the departments of powers, ex- 
 amined and ascertained 319 
 
 XL VIII. The same subject continued, with a view to the 
 means of giving efficacy in practice to that 
 
 maxim, 327 
 
 XLIX. The same subject continued with the same view, 334 
 L. The same subject continued with the same view, 339 
 LI. The same subject continued with the same view, 
 
 and concluded, 342 
 
 LII. Concerning the House of Representatives, with a 
 view to the qualifications of the electors and 
 elected, and the time of service of the mem- 
 bers 348 
 
 LIII. The same subject continued, with a view of the 
 
 term of service of the members, . . . 353 
 LIV. The same subject continued with a view to the 
 
 ratio of representation, 360 
 
 LV. The same subject continued in relation to the 
 
 total number of the body, .... 366 
 LVI. The same subject continued in relation to the 
 
 same point, 372 
 
 LVII. The same subject continued in relation to the 
 supposed tendency of the plan of the conven- 
 tion to elevate the few above the many, . 377 
 
HAMILTON'S TABLE OF CONTENTS. 
 
 Ixxv 
 
 PAGE 
 
 LVIII. The same subject continued in relation to the 
 future augmentation of the members, 
 LIX. Concerning the regulation of elections, 
 
 LX. The same subject continued 
 
 LXI. The same subject continued and concluded, 
 LXII. Concerning the constitution of the Senate, with 
 regard to the qualifications of the members, 
 the manner of appointing them, the equality 
 of representation, the number of the senators, 
 and the duration of their appointments, 
 LXIII. A further view of the constitution of the Senate, 
 in regard to the duration of the appointment 
 
 of its members, 416 
 
 LXIV. A further view of the constitution of the Senate, 
 in regard to the power of making treaties, 
 LXV. A further view of the constitution of the Senate, 
 in relation to its capacity as a court for the 
 trial of impeachments, .... 
 LXVI. The same subject continued, .... 
 LXVII. Concerning the constitution of the President : 
 A gross attempt to misrepresent this part of 
 the plan detected, 
 LXVIII. The view of the constitution of the President 
 continued, in relation to the mode of appoint- 
 ment, 
 
 LXIX. The same view continued, with a comparison 
 between the President and the king of Great 
 Britain on the one hand, and the governor of 
 New York on the other, . ... 
 LXX. The same view continued in relation to the 
 unity of the executive, and with an examina- 
 tion of the project of an executive council, . 
 LXXl. The same view continued, in regard to the dura- 
 tion of the office, 
 
 LXXII. The same view continued in regard to the re- 
 eligibility of the President, . . . 481 
 LXXIII. The same view continued, in relation to the pro- 
 vision concerning support, and the power of 
 
 the negative 488 
 
 LXXIV. The same view continued, in relation to the 
 command of the national forces, and the 
 
 power of pardoning, 496 
 
 LXXV. The same view continued in relation to the 
 
 power of making treaties, .... 499 
 LXXVI. The same view continued in relation to the ap- 
 pointment of the officers of the government, 505 
 LXXVII. The view of the constitution of the President 
 concluded, with a further consideration of the 
 power of appointment, and a concise exami- 
 nation of his remaining powers, 
 LXXVIII. A view of the constitution of the judicial depart 
 ment, in relation to the tenure of good be- 
 havior, , 
 
 383 
 391 
 397 
 404 
 
 408 
 
 . 426 
 
 433 
 440 
 
 447 
 
 451 
 
 457 
 
 466 
 
 475 
 
 511 
 
 517 
 
Ixxvi 
 
 HAMILTON'S TABLE OF CONTENTS. 
 
 LXXIX. A further view of the judicial department, in re- 
 lation to the provisions for the support and 
 responsibility of the judges, . . . , 
 LXXX. A further view of the judicial department, in re 
 lation to the extent of its powers, . 
 LXXXI. A further view of the judicial department, in re 
 
 lation to the distribution of its authority, 
 LXXXII. A further view of the judicial department, in 
 reference to some miscellaneous questions, 
 LXXXIII. A further view of the judicial department in re 
 
 lation to the trial by jury, 
 LXXXIV. Concerning several miscellaneous objections, 
 
 LXXXV. Conclusion, 
 
 Articles of the new constitution, . 
 
 527 
 
 530 
 
 538 
 
 550 
 
 555 
 569 
 581 
 598 
 
PREFACE. 
 
 It is supposed that a collection of the papers which 
 have made their appearance in the gazettes of this city, 
 under the title of The Federalist, may not be without effect 
 in assisting the public judgment on the momentous ques- 
 tion of the constitution for the United States, now under 
 the consideration of the people of America. A desire to 
 throw full light upon so interesting a subject has led, in a 
 great measure unavoidably, to a more copious discussion 
 than was at first intended. And the undertaking not 
 being yet completed, it is judged advisable to divide the 
 collection into two volumes, of which the ensuing numbers 
 constitute the first. The second volume will follow as 
 speedily as the editor can get it ready for publication. 
 
 The particular circumstances under which these papers 
 have been written, have rendered it impracticable to avoid 
 violations of method and repetitions of ideas which can- 
 not but displease a critical reader. The latter defect has 
 even been intentionally indulged, in order the better to 
 impress particular arguments which were most material 
 to the general scope of the reasoning. Respect for pub- 
 lic opinion, not anxiety for the literary character of the 
 performance, dictates this remark. The great wish is 
 that it may promote the cause of truth and lead to a 
 right judgment of the true interests of the community. 
 
 New York, March 17, 1788. 
 
 Ixxvii 
 
THE FEDERALIST. 
 
 No. I. ilndeptndtnt Journal, Octoher 2j,iii'j.') Hamilton. 
 
 INTRODUCTION. 
 
 Utility of the Union — Inefficiency of confederation — Capacity of 
 people for self-government — Opposition of state officials to Sew constitu- 
 tion — Honest differences of opinion — Political intolerance — Charges and 
 counter charges — Publius a supporter of the proposed constitution — Out- 
 line of 7^he Federalist — National sentiment for Union. 
 
 To the People of the State of New York: 
 
 After an unequivocal experience of the inefificiency of 
 the subsisting federal government, you are called upon 
 to deliberate on a new Constitution for the United States 
 of America. The subject speaks its own importance; 
 comprehending in its consequences nothing less than 
 the existence of the UNION, the safety and welfare of 
 the parts of which it is composed, the fate of an empire 
 in many respects the most interesting in the world. It 
 has been frequently remarked that it seems to have been 
 reserved to the people of this country, by their conduct 
 and example, to decide the important question, whether 
 societies of men are really capable or not of establishing 
 good government from reflection and choice, or whether 
 they are forever destined to depend for their political 
 constitutions on accident and force. If there be any 
 truth in the remark, the crisis at which we are arrived 
 may with propriety be regarded as the era in which that 
 decision is to be made; and a wrong election of the part 
 ■v^e 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 
 
2 NA TURM OP OPPOSITION^. [No. 1 
 
 all considerate and good men must feel for the event. 
 Happy will it be if our choice should be directed by a 
 judicious estimate of our true interests, unperplexed and 
 unbiased by considerations not connected with the 
 public good. But this is a thing more ardently to be 
 wished than seriously to be expected. The plan offered 
 to our deliberations affects too many particular interests, 
 innovates upon too many local institutions, not to in- 
 volve in its discussion a variety of objects foreign to its 
 merits, and of views, passions, and prejudices little favor- 
 able to the discovery of truth. 
 
 Among the most formidable of the obstacles which the 
 new Constitution will have to encounter may readily be 
 See distinguished the obvious interest of a cer- 
 
 No. 59 tain class of men in every State to resist 
 
 all changes which may hazard a diminution of the power, 
 emolument, and consequence of the ofiSces they hold 
 under the State establishment;' and the perverted 
 ambition of another class of men, who will either hope 
 to aggrandize themselves by the confusions of their 
 country, or will flatter themselves with fairer prospects 
 of elevation from the subdivision of the empire into 
 several partial confederacies than from its union under 
 one government. 
 
 ' No inherent objection to the constitution played so vital a part in the 
 struggle for adoption as this opposition of what in modern parlance 
 would be called the various state " machines." The Revolutionary War 
 and the subsequent years of anarchy, by driving into exile or impoverish- 
 ing the gentry and the commercial classes, had transferred political con- 
 trol in each state to the small landholders. These from the first had 
 been strongly democratic ; indeed what, to-day, would be termed popu- 
 listic ; and for twelve years had been favored by suspension of the courts, 
 issues of paper money, stay- and tender-laws, and other legal devices 
 designed to favor them and hold their support to the dominant party. 
 This unjust favoring of one class at the expense of others the constitution 
 promised to end, and with it, of necessity, the power of the machine 
 leaders to retain office. With hardly an exception, therefore, those in 
 political control were opposed to the adoption of the constitution ; and 
 that their action was based on selfishly sagacious grounds, was quickly 
 shown by the events following the ratification of the constitution. Thus 
 in Massachusetts, Hancock only retained the governorship by bargaining 
 his support of the constitution in return for the Federalist promise of 
 nomination to that office ; while Samuel Adams and Elbridge Gerry 
 
Hamilton] PAIR OPPOSITION. 3 
 
 It is not, however, my design to dwell upon observa- 
 tions of this nature. I am well aware that it would be 
 disingenuous to resolve indiscriminately the opposition 
 of any set of men (merely because their situations might 
 subject them to suspicion) into interested or ambitious 
 views. Candor will oblige us to admit that even such 
 men may be actuated by upright intentions; and it can- 
 not be doubted that much of the opposition which has 
 made its appearance, or may hereafter make its appear- 
 ance, will spring from sources, blameless, at least, if not 
 respectable — the honest errors of minds led astray by 
 preconceived jealousies and fears. So numerous indeed 
 and so powerful are the causes which serve to give a 
 false bias to the judgment, that we, upon many occasions, 
 see wise and good men on the wrong as well as on the 
 right side of questions of the first magnitude to society. 
 This circumstance, if duly attended to, would furnish a 
 lesson of moderation to those who are ever so much per- 
 suaded of their being in the right in any controversy. 
 And a further reason for caution, in this respect, might 
 be drawn from the reflection that we are not always sure 
 that those who advocate the truth are influenced by purer 
 principles than their antagonists. Ambition, avarice, 
 personal animosity, party opposition, and many other 
 
 were not merely defeated in their next elections, but ceased to be impor- 
 tant political factors until the return of Democracy to power in 1801. In 
 New York the Clinton party, after twelve years of practically uncon- 
 tested power, at once began to wane, was forced to use fraudulent means 
 to keep itself in power in 1792, and at the next election was entirely 
 defeated. In Pennsylvania the ultra-democratic party was promptly 
 overthrown. In Virginia Patrick Henry was driven into retirement, and 
 the Lee faction never again exercised material political influence. In 
 fact in every state the adoption of the federal constitution marked the 
 prompt conversion or disappearance of certain men hitherto prominent 
 in politics. (SeeFord's" Essays on the Constitution," p. 176, and" Penn- 
 sylvania and the Federal Constitution," p. 11.) Nor did this vital 
 influence of national on state politics end with this waning of the " Anti- 
 federalists," the most certain methods to this day of defeating an 
 "intrenched machine " being the injection into a state political contest 
 of issues wholly national. Far more than half of the overturnings of 
 state parties have come about through contests for control of the general 
 government, and the state-dominant-party leaders of to-day dread noth- 
 ing so much as a sharply fought national election. — Editor. 
 
4 LIBERTY AND DESPOTISM. [No. 1 
 
 motives not more laudable than these, are apt to operate 
 as well upon those who support as those who oppose the 
 right side of a question. Were there not even these 
 inducements to moderation, nothing could be more ill- 
 judged than that intolerant spirit which has, at all times, 
 characterized political parties. For in politics, as in 
 religion, it is equally absurd to aim at making proselytes 
 by fire and sword. Heresies in either can rarely be cured 
 by persecution. 
 
 And yet, however just these sentiments will be 
 allowed to be, we have already sufficient indications that 
 it will happen in this as in all former cases of great 
 national discussion. A torrent of angry and malignant 
 passions will be let loose. To judge from the conduct of 
 the opposite parties, we shall be led to conclude that 
 they will mutually hope to evince the justness of their 
 opinions, and to increase the number of their converts 
 by the loudness of their declamations and the bitterness 
 of their invectives. An enlightened zeal for the energy 
 and efficiency of government will be stigmatized as the 
 offspring of a temper fond of despotic power and hostile 
 to the principles of liberty. An overscrupulous jealousy 
 of danger to the rights of the people, which is more 
 commonly the fault of the head than of the heart, will be 
 represented as mere pretense and artifice, the stale bait 
 for popularity at the expense of the public good. It will 
 be forgotten, on the one hand, that jealousy is the usual 
 concomitant of love, and that the noble enthusiasm of 
 liberty is apt to be infected with a spirit of narrow and 
 illiberal distrust. On the other hand, it will be equally 
 forgotten that the vigor of government is essential to the 
 security of liberty; that, in the contemplation of a sound 
 and well-informed judgment, their interest can never be 
 separated; and that a dangerous ambition more often 
 lurks behind the specious mask of zeal for the rights of 
 the people than under the forbidding appearance of zeal 
 for the firmness and efficiency of government. History 
 will teach us that the former has been found a much 
 more certain road to the introduction of despotism than 
 
Hamilton] OUTLINE OF FEDERALIST. 5 
 
 the latter, and that of those men who have overturned 
 the liberties of republics, the greatest number have 
 begun their career by paying an obsequious court to the 
 people; commencing demagogues, and ending tyrants. 
 
 In the course of the preceding observations, I have 
 had an eye, my fellow-citizens, to putting you upon 
 your guard against all attempts, from whatever quarter, 
 to influence your decision in a matter of the utmost 
 moment to your welfa're, by any impressions other than 
 those which may result from the evidence of truth. 
 You will, no doubt, at the same time have collected from 
 the general scope of them, that they proceed from a 
 source not unfriendly to the new Constitution. Yes, my 
 countrymen, I own to you that, after having given it an 
 attentive consideration, I am clearly of opinion it is your 
 interest to adopt it. I am convinced that this is the 
 safest course for your liberty, your dignity, and your 
 happiness. I affect not reserves which I do not feel. I 
 will not amuse you with an appearance of deliberation 
 when I have decided. I frankly acknowledge to you my 
 convictions, and I will freely lay before you the reasons 
 on which they are founded. The consciousness of good 
 intentions disdains ambiguity. I shall not, however, 
 multiply professions on this head. My motives must 
 remain in the depository of my own breast. My argu- 
 ments 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 follow- 
 ing interesting particulars i-z/T!^^ utility 'of the UNION to 
 your political prosperity — The insufficiency of the present Con- 
 federation to preserve that Union — The necessity of a govern- 
 ment at least equally energetic witlp the one proposed, to the 
 attainment of this object — The conformity of the proposed Con- 
 stitution to the true principles of republican government — Its 
 analogy to your own State constitution — and 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 shal' endeavor to 
 
6 VTIUTY OF UNION. [No. 1 
 
 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 argu- 
 ments to prove the utility of the UNION, a point, no 
 SeeNos. doubt, deeply engraved on the hearts of the 
 5 and 13 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 pri- 
 vate 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 
 
 ' This theory of separate confederacies, on the ground that the great 
 territory comprised in the Union was too vast and too differently circum- 
 stanced to make a general government possible, was held by many men 
 as a theory, who none the less were willing to attempt the experiment. 
 The impossibility was therefore the contention of those opposed to the 
 constitution, such as George Clinton and Patrick Henry, and there can 
 be little doubt that time would have justified their prediction but for 
 the changed condition created by the railroad and the telegraph. With 
 each sectional controversy the project has reappeared, and the section 
 that has felt aggrieved has threatened, or attempted, to form itself into 
 a separate nation. Thus in 1803 when the navigation of the Mississippi 
 was closed the Western states seriously planned a separation from the 
 Union. Later, when the purchase of Louisiana had removed the 
 Western grievance, the New England leaders endeavored to form a 
 separate confederacy in the North. The Slave-states' Convention of 
 1850 threatened to form a Southern confederacy, a project realized ten 
 years later. In each case the plea was that the sectional interests were 
 too distinct to allow of one government, although it may be safely 
 asserted that the sectional distinctions in the Union have been no greater 
 than the sectional differences in each state. The logical result of seces- 
 sion was very well sketched by Jefferson, when in 1798 he wrote : 
 " But if on a temporary superiority of the one party, the other is to 
 resort to a scission of the Union, no federal government can ever exist. 
 If to rid ourselves of the present rule of Massachusetts and Connecticut, 
 we break the Union, will the evil stop there ? Suppose the New England 
 states alone cut off, will our nature be changed? Are we not men still 
 to the south of that, and with all the passions of men ? Immediately, 
 we shall see a Pennsylvania and a Virginia party arise in the residuary 
 confederacy, and the public mind will be distracted with the same party 
 spirit. What a game, too, will the one party have in their hands, by 
 eternally threatening the other that unless they do so and so, they will 
 join their Northern neighbors. If we reduce our Union to Virginia and 
 North Carolina, immediately the conflict will be established between the 
 representatives of these two states, and they will end by breaking into 
 their simple units." — Editor. 
 
Hamilton] CONSTITUTION OR DISUNION. 7 
 
 whole.* This doctrine will, in all probability, be 
 gradually propagated, till it has votaries enough to 
 countenance an open avowal of it. For nothing can be 
 more evident to those who are able to take an enlarged 
 view of the subject than the alternative of an adoption 
 of the new Constitution or a dismemberment of the 
 Union. It will therefore be of use to begin by examining 
 the advantages of that Union, the certain evils, and the 
 probable dangers, to which every State will be exposed 
 from its dissolution. This shall accordingly constitute 
 the subject of my next address. 
 
 PUBLIUS. 
 
 No. 2* (Independent Journat, October 31, 1787.) J^Y* 
 
 TPE VALUE OF UNION. 
 
 Necessity of government — Theory of separate confederacies^Geograph- 
 ical and racial homogeneity of the United States — Inefficiency of the 
 articles of confederation — The Federal Convention — Consi^ration of the 
 constitution — The congress of 1774 — Universal belief in the necessity of 
 Union — Project of separate confederacies . 
 
 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 conse- 
 quences, must prove one of the most important that ever 
 engaged their attention, the propriety of their taking a 
 very comprehensive, as well as a very serious, view of it, 
 will be evident. 
 
 Nothing is more certain than the indispensable neces-- 
 sity 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 
 
 * The same idea, tracing the arguments to their consequences, is held 
 out in several of the late publications against the new Constitution. — 
 PUBLIUS. 
 
8 SEPARATE CONFEDERACIES. [No, 8 
 
 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 con- 
 federacies, and give to the head of each the same kind of 
 powers which they are advised to place in one national 
 government. _, 
 
 It has until lately been a received and uncontradicted 
 opinion that the prosperity of the people of America 
 depended on their continuing firmly united, and the 
 wishes, prayers, and efforts of our best and wisest citizens 
 have been constantly directed to that object. But politi- 
 cians now appear, who insist that this opinion is errone- 
 ous, and that instead of looking for safety and happiness 
 in union, we ought to seek it in a division of the States 
 into distinct confederacies or sovereignties. However 
 extraordinary this new doctrine may appear, it neverthe- 
 less has its advocates; and certain characters who were 
 rilrrch opposed to it formerly are at present of the num- 
 ber. 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 politi- 
 cal tenets without being fully convinced that they are 
 founded in truth and sound policy. 
 
 It has often given me pleasure to observe that independent 
 America was not composed of detached and distant territories, but 
 that one connected, fertile, wide-spreading country was the por- 
 tion of our western sons of Hb'erty. Providence has in a particular 
 manner blessed it with a variety of soils and productions, and 
 watered it with innumerable streams, for the delight and accommo- 
 dation of its inhabitants. A succession of navigable waters forms 
 a kind of chain round its borders, as if to bind it together ; while 
 the most noble rivers in the world, running at convenient dis- 
 tances, present them with highways for the easy communication 
 of friendly aids, and the mutual transportation and exchange of 
 their various commodities. 
 
 /"With equal pleasure I have so often taken notice that Provi- 
 /dence has been pleased to give this one connected country to one 
 1 united people — a people descended from the same ancestors, 
 \speaking the same language, professing the same religion, attached 
 
Jay] NATIONAL SENTIMENT. 9 
 
 to the same principles of government, very similar in their manners 
 and customs, and who, by their joint counsels, arms, and efforts, 
 fighting side by side throughout a long and bloody war, have 
 nobly established general liberty and independence. / 
 
 This country and this people seem to have been made for eac-h 
 other, and it appears as if it was the design of Providence that an 
 inheritance so proper and convenient for a band of brethren 
 united to each other by the strongest ties, should never be split 
 into a number of unsocial, jealous, and alien sovereignties. 
 
 Similar sentiments have hitherto prevailed among all orders and 
 denominations of men among us. To all general purposes we 
 have uniformly been one people ; each individual citizen every- 
 where enjoying the same national rights, privileges, and protection. 
 As a nation we have made peace and war ; as a nation we have 
 vanquished our common enemies ; as a nation we have formed 
 alliances, and made treaties, and entered into various compacts 
 and conventions with foreign states. 
 
 A strong sense of the value and blessings of union 
 induced the people, at a very early period, to institute a 
 federal government to preserve and perpetuate it. They 
 formed it almost as soon as they had a political exist- 
 ence ; nay, at a time when their habitations were in flames, 
 when many of their citizens were bleeding, and when 
 the progress of hostility and desolation left little room 
 for those calm and mature inquiries and reflections which 
 must ever precede the formation of a wise and well- 
 balanced government for a free people. It is not to be 
 wondered at that a government, instituted in times so 
 inauspicious, should on experiment be found greatly 
 deficient and inadequate to the purpose it was intended 
 to answer. 
 
 This intelligent people perceived and regretted these 
 defects. Still continuing no less attached to union than 
 enamored of liberty, they observed the danger which 
 immediately threatened the former and more remotely 
 the latter; and being persuaded that ample security for 
 both could only be found in a national government more 
 wisely framed, they, as with one voice, convened the late 
 convention at Philadelphia, to take that important sub- 
 ject under consideration. 
 
10 PROPOSED CONSTITUTION. [No. 3 
 
 This convention, composed of men who possessed the 
 confidence of the people, and many of whom had become 
 See highly distinguished by their patriotism, 
 
 No. 40. virtue, and wisdom, in times which tried the 
 
 minds and hearts of men, undertook the arduous task. 
 In the mild season of peace, with minds unoccupied 
 by other subjects, they passed many months in .cool 
 uninterrupted, and daily consultation; and finally, with- 
 out having been awed by power, or influenced by any 
 passions except love for their country, they presented 
 and recommended to the people the plan produced by 
 their joint and very unanimous councils. 
 
 Admit, for so is the fact, that this plan is only recommended, 
 not imposed, yet let it be remembered that it is neither recom- 
 mended to blind approbation, nor to blind reprobation ; but to 
 that sedate and candid consideration which the magnitude and 
 importance of the subject demand, and which it certainly ought to 
 receive. But this (as was remarked in the foregoing number of 
 this paper) is more to be wished than expected, that it may be 
 so considered and examined. Experience on a former occasion 
 teaches us not to be too sanguine in such hopes. It is not yet for- 
 gotten that well-grounded apprehensions of imminent danger in- 
 duced the people of America to form the memorable Congress of 
 1774. That body recommended certain measures to their constit- 
 uents, 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 inter- 
 est, but others, from a mistaken estimate of consequences, or the 
 undue influence of former attachments, or whose ambition aimed 
 at objects which did not correspond with the public good, were 
 indefatigable in their efforts to persuade the people to reject the 
 advice of that patriotic Congress. Many, indeed, were deceived 
 and deluded, but the great majority of the people reasoned and 
 decided judiciously ; and happy they are in reflecting that they 
 did so. 
 
 They considered that the Congress was composed of many wise 
 and experienced men. That, being convened from different parts 
 of the country, they brought with them and communicated to each 
 other a variety of useful information. That, in the course of the 
 time they passed together in inquiring into and discussing the true 
 interests of their country, they must have acquired very accurate 
 
Jay] BELIEF IN UmOH. II 
 
 knowledge on that head. That they were individually interested 
 in the public liberty and prosperity, and therefore that it was not less 
 their inclination than their duty to recommend only such measures 
 as, after the most mature deliberation, they really thought prudent 
 and advisable. 
 
 These and similar considerations then induced the people to rely 
 greatly on the judgment and integrity of the Congress ; and they 
 took their advice, notwithstanding the various arts and endeavors 
 used to deter them from it. But if the people at large had reason 
 to confide in the men of that Congress, few of whom had been 
 fully tried or generally known, still greater reason have they now to 
 respect the judgment and advice of the convention, for it is well 
 known that some of the most distinguished members of that Con- 
 gress, who have been since tried and justly approved for patriotism 
 and abilities, and who have grown old in acquiring political infor- 
 mation, 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 conven- 
 tion, have invariably joined with the people in thinking 
 that the prosperity of America depended on its Union. 
 To preserve and perpetuate it was the great object of the 
 people in forming that convention, and it is also the great 
 object of the plan which the convention has advised them 
 to adopt. With what propriety, therefore, or for what 
 good purposes, are attempts at this particular period 
 made by some men to depreciate the importance of the 
 Union? Or why is it suggested that three or four con- 
 federacies would be better than one? I am persuaded in 
 my own mind that the people have always thought right 
 on this subject, and that their universal and uniform 
 attachment to the cause of the Union rests on great and 
 weighty reasons, which I shall endeavor to develop and 
 explain in some ensuing papers. They who promote the 
 idea of substituting a number of distinct confederacies in 
 the room of the plan of the convention, seem clearly to 
 foresee that the rejection of it would put the continuance 
 of the Union in the utmost jeopardy. That certainly 
 would be the case, and I sincerely wish that it may be as 
 clearly foreseen by every good citizen, that whenever the 
 
12 RESULT OF DISUNION. [No. 3 
 
 dissolution of the Union arrives, America will have 
 reason to exclaim, in the words of the poet: "Fare- 
 well! A LONG Farewell to all my Greatness." 
 
 PUBLIUS. 
 
 No . 3' Qndependent Journal^ November 3, 1787.) J ay. 
 
 ADVANTAGES AND NECESSITY OF UNION IN 
 RELATION TO FOREIGN POWERS. 
 
 Safety of public opinion — Public safety a common end — Causes of 
 ■war — Treaties and commerce as causes — Efficient national government 
 ■will secure services of ablest men— A supreme government necessary in 
 construing treaties — Union a check on injustice in the States — A national 
 government less likely to afford just causes of ivar — Indian ivars caused 
 by the States — Neighboring countries and consequent border -wars — 
 Advantage of national government in negotiating ■with foreign poivers — 
 Greater ■weight of the Union likely to secure better terms. 
 
 To the People of the State of New York: 
 
 It is not a new observation that the people of any- 
 country (if, like the Americans, intelligent and well- 
 informed) seldom adopt and steadily persevere for many 
 years in an erroneous opinion respecting their interests. 
 That consideration naturally tends to create great respect 
 for the high opinion which the people of America have so 
 long and uniformly entertained of the importance of their 
 continuing firmly united under one federal government, 
 vested with sufficient powers for all general and national 
 purposes. 
 
 The' more attentively I consider and investigate the 
 reasons which appear to have given birth to this opinion, 
 the more I become convinced that they are cogent and 
 conclusive. 
 
 Among the many objects to which a wise and free 
 people find it necessary to direct their attention, that of 
 providing for their safety seems to be the first. The 
 safety of the people doubtless has relation to a great 
 variety of circumstances and considerations, and con- 
 
Jay] CAUSES OF WARS. 13 
 
 sequently affords great latitude to those who wish to 
 define it precisely and comprehensively. 
 
 At present I mean only to consider it as it respects 
 security for the preservation of peace and tranquillity, as 
 well against dangers from foreign arms and influence, as 
 from dangers of the liki 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 frbm abroad. 
 
 The number of wars which have happened or will 
 happen in the world will always be found to be in propor- 
 tion to the number and weight of the causes, whether real 
 or pretended, •which provoke or invite them. If this remark 
 be just, it becomes useful to inquire whether so many 
 just causes of war are likely to be given by United 
 America as by disunited America; for if it should turn out 
 that United America will probably give the fewest, then'' 
 it will follow that in this respect the Union tends most to 
 preserve the people in a state of peace with other 
 nations. 
 
 The just causes of war, for the most part, arise either 
 from 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 commerce with Portugal, Spain, 
 and Britain, and, with respect to the two latter, has, in 
 addition, the circumstance of neighborhood to attend to. 
 
 It is of high importance to the peace of America that 
 she observe the laws of nations towards all these powers, 
 and to me it appears evident that this will be more per- 
 fectly and punctually done by one national government , 
 than it could be either by thirteen separate States or by 
 three or four distinct confederacies. 
 
 Because when once an efficient national government is 
 established, the best men in the country will not only 
 
14 ADVANTAGES OF GENERAL GOVERNMENT. [Mo.3 
 
 consent to serve ' but also will generally be appointed to 
 manage it; for, although town or country, or other con- 
 tracted 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 expe- 
 rience that want of proper persons which is not uncommon 
 in some of the States. Hence, it will result that the 
 administration, the political counsels, and the judicial 
 decisions of the national government will be more wise, 
 systematical, and judicious than those of individual 
 States, and consequently more satisfactory with respect 
 to other nations, as well as more safe Avith 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 con- 
 federacies, will not always accord or be consistent; and 
 
 ' For the first forty yeais of national government, this prediction was 
 well realized, the ablest men of both parties with scarcely an exception 
 being persistent office-seekers and office-holders. Since 1830, however, 
 the grade of men holding office has by no means represented the highest 
 moral or intellectual force in the community, and those few who have 
 won reputation in either category, have rarely been chosen because 
 of that force, but have developed it after election. In Bryce's American 
 Commonwealth (ii. 37) an interesting chapter is devoted to " Why the 
 Best Men do not go into Politics," and doubtless each reason he brings 
 forward has had its distinct deterrent influence, but they by no means, 
 even in their total, explain the anomaly, for every cause he finds was as 
 influential in 1789, or i8oi, as in 1897. Other writers have urged as the 
 explanation the development of the nominating primaries and conven- 
 tions, coincident with the decline of the American statesman (Jackson's 
 presidency, 1829-1837), but however apparently satisfactory this may 
 appear, the introduction of these methods actually meant a bettering of 
 conditions, for the small caucuses and conclaves they superseded were 
 far more secret and far less to be reached by public opinion than 
 regularly conducted primaries and conventions, accounts of which are 
 published in the newspapers, and which have even been compelled to 
 appear before the courts. 
 
 Thus the main reason for this lowering of the standard must be sought 
 
Jay] LOCAL INFUENCES. 15 
 
 that, as well from the variety of independent courts and 
 judges appointed by different and independent govern- 
 ments, 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 jurisdic- 
 tion 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 tempta- 
 tions, 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 jus- 
 tice 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 temp- 
 tations may, and commonly do, result from circumstances 
 peculiar to the State, and may affect a great number of 
 the inhabitants, the governing party may not always be 
 able, if willing, to prevent the injustice meditated, or to 
 punish the aggressors. But the national government, 
 not being affected by those local circumstances, will 
 
 in some more permanent and universal causation, and the obvious influ- 
 ence appears to be the development of communication, which has 
 changed the representative agent from a man acting as trustee for his 
 community to that of a man merely voting as a proxy for his district. 
 When President Washington was called upon to sign or veto a bill, he 
 was compelled to act without any true knowledge of public opinion ; 
 to-day the President can scarcely avoid knowing the popular bent, and 
 thus is always tempted to let it be a consideration in his action. In 1797 
 the voters of a congressional district knew practically nothing of what 
 transpired in Congress until their representative returned fi-om the 
 session and reported to them ; now a congressman's desk may be 
 littered with protesting letters and telegrams from constituents the day 
 after the mere reporting. of a bill. This is in effect to make office- 
 holders, like the members of the old French parliament, the mere 
 registers of edicts, rather than trustees ; and as men of special ability 
 will always act independently rather than representatively, and as such 
 ability necessarily implies separation from the average and therefore from 
 the majority, their refusal to seek office or their exclusion from it, is a 
 logical result.— Editor. 
 
l6 VIOLENCE USUALLY LoMl. [No. 3 
 
 in 
 
 neither be induced to commit the wrMg themselves, nor 
 want power or inclination to preveny or punish its com- 
 mission by others. ». ; 
 
 So far, therefore, as either desj^ffi^d ftiMCccidental viola- 
 tions of treaties and the laws of nationgi^af^ord/^^j/ causes 
 of war, they are less to be apij[rehended''under one gen- 
 eral government than under s&vera>7lesser ones, and in 
 that respect the former most favoife the safety of the 
 people. 
 
 As to those just causes of war which proceed from 
 direct and unlawful violence, it appears equally clear to 
 me that one good national government affords vastly 
 more security against dangers of that sort than can be 
 derived from any other quarter. 
 
 Because such violences are more frequently caused by 
 the passions and interests of a part than of the whole; 
 of one or two States than of the Union. Not a single 
 Indian war has yet been occasioned by aggressions of the 
 present federal government, feeble as it is; but there are 
 several instances of Indian hostilities having been pro- 
 voked by the improper conduct of individual States, who, 
 either unable or unwilling to restrain or punish offenses, 
 have given occasion to the slaughter of many innocent 
 inhabitants. 
 
 The neighborhood of Spanish and British territories, 
 bordering on some States and not on others, naturally 
 confines the causes of quarrel more immediately to the 
 borderers. The bordering States, if any, will be those 
 who, under the impulse of sudden irritation, and a quick 
 sense of apparent interest or injury, will be most likely, 
 by direct violence, to excite war with these nations; and 
 nothing can so effectually obviate that danger as a 
 national government, whose wisdom and prudence will 
 not be diminished by the passions which actuate the par- 
 ties 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 
 
Jay] NATION CAN MAKE BETTER TERMS. I? 
 
 well as in others, will be more in capacity to act ad- 
 visedly 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, correct- 
 ing, or repairing their errors and offenses. The national 
 government, in such cases, will not be affected by this 
 pride, but will proceed with moderation and candor to 
 consider and decide on the means most proper to extri- 
 cate them from the difficulties which threaten them. 
 
 Besides, it is well known that acknowledgments, ex- 
 planations, and compensations are often accepted as 
 satisfactory from a strong united nation, which would be 
 rejected as unsatisfactory if offered by a State or con- 
 federacy of little consideration or power. 
 
 In the year 1685, the state of Genoa having offended 
 Louis XIV., endeavored to appease him. He demanded 
 that they should send their Doge, or chief magistrate, 
 accompanied by four of their senators, to France, to ask 
 his pardon and receive his terms. They were obliged to 
 submit to it for the sake of peace. Would he on any oc- 
 casion either have demanded or have received the like 
 humiliation from Spain, or Britain, or any oXh^v powerful 
 nation? Publius. 
 
 V^ 
 
 fTO* 4* {.Independent Journal, November 7, 1787.) J^Y- 
 
 RELATIONS WITH FOREIGN POWERS. 
 
 Motives of war — Rivalry with France and Britain in fisheries — Com- 
 mercial rivalry with Europe — China and India trade — Rivalry with 
 European colonies — Exclusion from Mississippi and St. Lawrence — 
 fealousy of Europe — Inducements to war — A single government neces- 
 sary for safety — Advantages of national government — Militia and 
 navy of Great Britain — America divided into independent governments — 
 Attitude of foreign governments. 
 
 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 hy just causes of war given 
 
i8 MOTIVES FOR WARS. Wo. 4 
 
 to other nations; and tiiose reasons show that such 
 causes would not only be more rarely given, but would 
 also be more easily accommodated, by a national govern- 
 ment than either by the State governments or the pro- 
 posed little confederacies. 
 
 But the safety of the people of America against dangers 
 from /i!>r«^« 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 situa- 
 tion as not to invite hostility or insult; for it need not 
 be observed that there Sirt pretended diS well as just causes 
 of war. 
 
 It is too true, however disgraceful it may be to human 
 nature, that nations in general will make war whenever 
 they have a prospect of getting anything by it; nay, ab- 
 solute 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, re- 
 venge for personal affronts, ambition, or private compacts 
 to aggrandize or support their particular families or 
 partisans. These and a variety of other motives, which 
 affect only the mind of the sovereign, often lead him to 
 engage in wars not sanctified by justice or the voice and 
 interests of his people. But, independent of these in- 
 ducements to war, which are more prevalent in absolute 
 monarchies, but which well deserve our attention, there 
 are others which affect nations as often as kings; and 
 some of them will, on examination, be found to grow out 
 of our relative situation and circumstances. 
 
 With France and with Britain we are rivals in the fisheries, and 
 can supply their markets cheaper than they can themselves, not- 
 withstanding 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 our- 
 selves 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 
 
Jay] JEALOUSY OF FOREIGN NATIONS. 19 
 
 one nation, inasmuch as it enables us to partake in advantages 
 which they had in a manner monopolized, and as we thereby sup- 
 ply ourselves with commodities which we used to purchase from 
 them. 
 
 The extension of our own commerce in our own vessels cannot 
 give pleasure to any nations who possess territories on or near this 
 continent, because the cheapness and excellence of our produc- 
 tions added to the circumstance of vicinity, and the enterprise and 
 address of our merchants and navigators, will give us a greater 
 share in the advantages which those territories afford, than con- 
 sists with the wishes or policy of their respective sovereigns. 
 
 Spain thinks it convenient to shut the Mississippi ' against us on 
 one side, and Britain excludes us from the St. Lawrence on the 
 See other ; nor will either of them permit the other waters 
 
 No. H. which are between them and us to become the means 
 
 of mutual intercourse and traffic. 
 
 From these and such like considerations, which might, if con- 
 sistent with prudence, be more amplified and detailed, it is easy to 
 see that jealousies and uneasinesses may gradually slide into the 
 minds and cabinets of other nations, and that we are not to expect 
 that they should regard our advancement in union, in power, and 
 consequence by land and by sea, with an eye of indifference and 
 composure. 
 
 The people of America are aware that inducements to war 
 may arise out of these circumstances, as well as from others not 
 so obvious at present, and that whenever such inducements may 
 find fit time and opportunity for operation, pretenses to color and 
 justify them will not be wanting. Wisely, therefore, do they con- 
 sider union and a good national government as necessary to put 
 and keep them in such a situation as, instead of inviting war, will 
 tend to repress and discourage it. That situation consists in the 
 best possible state of defense, and necessarily depends on the 
 government, the arms, and the resources of the country. 
 
 ' This dispute over the navigation of the Mississippi was one of the 
 most vital questions of politics from 1783 until the purchase of Louisiana 
 twenty years later. The earlier stages of the dispute are dealt with in 
 W. C. Ford's " United States and Spain in 1790" (Brooklyn, 1890), 
 and the later negotiations are given at large in Adams' " History of the 
 United States. " Once again its navigation became a question of national 
 politics, one of the motives for resisting the secession of the South being 
 the fear that the Northwest would be occluded from the southern part of 
 the river and thus from a free entrance to the Gulf of Mexico, and next 
 to the capture of the Confederate capital the control of the Mississippi 
 formed the greatest contest of the Civil War. — Editor. 
 
20 ADVANTAGES OF NATIONAL GOVERNMENT. [No. 4 
 
 As the safety of the whole is the interest of the whole, 
 and cannot be provided for without government, either 
 one or more or many, let us inquire whether one good 
 government is not, relative to the object in question, 
 more competent than any other given number whatever. 
 
 One government can collect and avail itself of the 
 talents and experience of the ablest men, in whatever 
 part of the Union they may be found. It can move on 
 uniform principles of policy. It can harmonize, assimi- 
 late, and protect the several parts and members, and 
 extend the benefit of its foresight and precautions to 
 each. In the formation of treaties, it will regard the 
 interest of the whole, and the particular interests of the 
 parts as connected with that of the whole. It can apply 
 the resources and power of the whole to the defense of 
 any particular part, and that more easily and expeditiously 
 than State governments or separate confederacies can 
 possibly do, for want of concert and unity of system. It 
 can place the militia under one plan of discipline, and, by 
 putting their officers in a proper line of subordination 
 to the Chief Magistrate, will, as it were, consolidate 
 them into one corps, and thereby render them more 
 efficient than if divided into thirteen or into three or four 
 distinct, independent bodies. 
 
 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 Bi-itain would? 
 
 We have heard much of the fleets of Britain, and the 
 time may come, if we are wise, when the fleets of America 
 may engage attention. But if one national government 
 had not so regulated the navigation of Britain as to make 
 it a nursery for seamen — if one national government had 
 not called forth all the national means and materials for 
 forming fleets, their prowess and their thunder would 
 
Jay] MUTUAL STATE AID NOT PROBABLE. 21 
 
 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 con- 
 stituent parts of the British empire be under four inde- 
 pendent governments, and it is easy to perceive how 
 soon they would each dwindle into comparative insig- 
 nificance. 
 
 Apply these facts to our own case. Leave America 
 divided into thirteen or, if you please, into three or four 
 independent governments — what armies could they raise 
 and pay — what fleets could they ever hope to have? If 
 one was attacked, would the others fly to its succor, and 
 spend their blood and money in its defense? Would 
 there be no danger of their being flattered into neutrality 
 by its specious promises, or seduced by a too great fond- 
 ness for peace to decline hazarding their tranquillity and 
 present safety for the sake of neighbors, of whom per- 
 haps they have been jealous, and whose importance they 
 are content to see diminished? Although such conduct 
 would not be wise, it would, nevertheless, be natural. 
 The history of the states of Greece, and of other coun- 
 tries, abounds with such instances, and it is not improb- 
 able that what has so often happened would, under 
 similar circumstances, happen again. 
 
 But admit that they might be willing to help the invaded State 
 or confederacy. How, and when, and in what proportion shall 
 aids of men and money be afforded ? Who shall command the 
 allied armies, and from which of them shall he receive his orders ? 
 Who shall settle the terms of peace, and in case of disputes what 
 umpire shall decide between them and compel acquiescence ? 
 Various difficulties and inconveniences would be inseparable from 
 such a situation ; whereas one government, watching over the 
 general and common interests, and combining and directing the 
 powers and resources of the whole, would be free from all these 
 embarrassments, and conduce far more to the safety of the people. 
 
 But whatever may be our situation, whether firmly 
 united under one national government, or split into a 
 number of confederacies, certain it is that foreign 
 nations will know and view it exactly as it is; and they 
 
2 2 CONDUCT OF FOREIGN NATIONS. [No. 5 
 
 i 
 
 will act toward us accordingly. If they see that our 
 national government is efficient and well administered, 
 our trade prudently regulated, our militia properly 
 organized and disciplined, our resources and finances 
 discreetly managed, our credit re-established, our people 
 free, contented, and united, they will be much more dis- 
 posed to cultivate our friendship than provoke our resent- 
 ment. If, on the other hand, they find us either destitute 
 of an effectual government (each State doing right or 
 wrong, as to its rulers may seem convenient), or split 
 into three or four independent and probably discordant 
 republics or confederacies, one inclining to Britain, 
 another to France, and a third to Spain, and perhaps 
 played off against each other by the three, what a poor, 
 pitiful figure will America make in their eyes! How liable 
 would she become not only to their contempt, but to 
 their outrage; and how soon would dear-bought experi- 
 ence proclaim that when a people or family so divide, it 
 never fails to be against themselves. 
 
 PUBLIUS. 
 
 No. 5' {fnde/>endent Journal, '^owzTnht'c lo^ fjij.) J^Y. 
 
 PROJECT OF SEPARATE CONFEDERACIES, IN 
 RELATION TO FOREIGN POWER. 
 
 Queen Anne's letter on union of England and Scotland — Example of 
 Great Britain — Division of the United States — Results of separate con- 
 federacies — Inevitable jealousy — The ' ' Northern Hive " — Similar con- 
 federacies — Folly of mere alliances and treaties — Certainty of appeals to 
 Europe, 
 
 To the People of the State of New York: 
 
 Queen Anne, in her letter of the ist July, 1706, to the Scotch 
 Parliament, makes some observations on the importance of the 
 Union then forming between England and Scotland, which merit 
 our attention. I shall present the public with one or two extracts 
 from it: " An entire and perfect union will !)e the solid foundation 
 of lasting peace : It will secure your religion, liberty, and property; 
 remove the animosities amongst yourselves, and the jealousies and 
 
Jay] SEPARATION WILL END IN CONTESTS. 23 
 
 differences betwixt our two liingdoms. It must increase your 
 strength, riches, and trade; and by this union the whole island, 
 being joined in affection and free from all apprehensions of dif- 
 ferent interest, will be enabled to resist all its enemies." "We 
 most earnestly recommend to you calmness and unanimity in this 
 great and weighty affair, that the union may be brought to a 
 happy conclusion, being the only effectual way to secure our 
 present and future happiness, and disappoint the designs of our 
 and your enemies, who will doubtless, on this occasion, use their 
 utmost endeavors to prevent or delay this union." 
 
 It was remarked in the preceding paper, that weakness 
 and divisions at home would invite dangers from abroad; 
 and that nothing would tend more to secure us from 
 them than union, strength, and good government within 
 ourselves. This subject is copious and cannot easily be 
 exhausted. 
 
 The history of Great Britain is the one with which we are in 
 general the best acquainted, and it gives us many useful lessons. 
 We may profit by their experience without paying the price which 
 it cost them. Although it seems obvious to common sense that 
 the people of such an island should be but one nation, yet we find 
 that they were for ages divided into three, and that those three 
 were almost constantly embroiled in quarrels and wars with one 
 another. Notwithstanding their true interest with respect to the 
 continental nations was I'eally 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 sim- 
 ilar 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 confed- 
 eracy, instead of the general interests of all America, would be the 
 only objects of their policy and pursuits. Hence, like most other 
 bordering nations, they would always be either involved in disputes 
 and war, or live in the constant apprehension of them.' 
 
 'The results of division were well sketched in Lincoln's inaugural, 
 when he wrote, " Physically speaking, we cannot separate. We cannot 
 remove our respective sections from each other, nor build an impassible 
 
24 ItfEQUALITY OF STATES. , ^^°-^ 
 
 The most sanguine advocates for three or four confed- 
 eracies cannot reasonably suppose that they would long 
 remain exactly on an equal footing in point of strength, 
 even if it was possible to form them so at first; but, 
 admitting that to be practicable, yet what human con- 
 trivance 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 prob- 
 ably distinguish the government of one above the rest, 
 and by which their relative equality in strength and 
 consideration would be destroyed. For it cannot be pre- 
 sumed that the same degree of sound policy, prudence, 
 and foresight would uniformly be observed by each of 
 these confederacies for a long succession of years. 
 
 Whenever, and from whatever cause, it might happen, 
 and happen it would, that any one of these nations or 
 confederacies should rise on the scale of political impor- 
 tance 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 coun- 
 tenance, if not to promote, whatever might promise to 
 diminish her importance; and would also restrain them 
 from measures calculated to advance or even to secure 
 her prosperity. Much time would not be necessary to 
 enable her to discern these unfriendly dispositions. She 
 would soon begin, not only to lose confidence in her 
 neighbors, but also to feel a disposition equally unfavor- 
 able to them. Distrust naturally creates distrust, and by 
 
 wall between them. A husband and wife may be divorced, and go out 
 of the presence and beyond the reach of each other ; but the different 
 parts of our country cannot do this. They cannot but remain face to 
 face ; and intercourse, either amicable or hostile, must continue between 
 them. Is it possible, then, to make that intercourse more advantageous 
 or more satisfactory after separation than before ? Can aliens make trea- 
 ties easier than friends can make laws ? Can treaties be more faithfully 
 enforced between aliens than laws can among friends? Suppose you go 
 to war, you cannot fight always ; and when after much loss on both 
 sides, and no gain on either, you cease fighting, the identical questions as 
 to terms of intercourse are again upon you." — Editor. 
 
J»y] ALIENATION OF STATES. 25 
 
 nothing is good-will and kind conduct more speedily 
 changed than by invidious jealousies and uncandid im- 
 putations, whether expressed or implied. 
 
 The North is generally the region of strength, and' 
 many local circumstances render it probable that the 
 most Northern of the proposed confederacies would, at a 
 period not very distant, be unquestionably more formi- 
 dable than any of the others. No sooner would this 
 become evident than the Northern Hive would excite the 
 same ideas and sensations in the more southern parts of 
 America which it formerly did in the southern parts of 
 Europe. Nor does it appear to be a rash conjecture that 
 its young swarms might often be tempted to gather 
 honey in the more bloomingfields 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 appre- 
 hend 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 
 injuries; in short, that they would place us exactly in the 
 situations in which some nations doubtless wish to see 
 us, ■^\z., formidable only to each other. ^ 
 
 From these considerations it appears that those gentle- 
 men are greatly mistaken who suppose that alliances 
 offensive and defensive might be formed between these 
 confederacies, and would produce that combination and 
 union of wills, of arms, and of resources, which would be 
 necessary to put and keep them in a formidable state of 
 defense against foreign enemies. 
 
 ' The truth of this view was well indicated by the attitude of the coun- 
 try then most favorable to us, the French government writing to its 
 American agents as follows : "I think as you do, that the preservation 
 of the Congress would suit us, but what perhaps suits us better is that 
 the United States should not acquire the piDlitical consistence of which 
 they are susceptible." (To French Charge, July 21, 1783.) " It suits 
 France that the United States should remain in their present state, 
 because if they should acquire the political consistence of which they are 
 susceptible, they would soon acquire a force or a power which they would 
 be very ready to abuse." (To Moustier, September 27, 1787.) — Editor. 
 
26 RIVALRY OF CONTIGUOUS STATES. [No. 5 
 
 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? 
 SeeNos. The proposed confederacies will be distinct i 
 land 13. nations. Each of them would have its com- 
 merce with foreigners to regulate by distinct treaties; and 
 as their productions and commodities are different and 
 proper for different markets, so would those treaties be 
 essentially different. Different commercial concerns must 
 create different interests, and of course different degrees 
 of political attachment to and connection with different 
 foreign nations. Hence it might and probably would 
 happen that the foreign nation with whom the Southern 
 confederacy might be at war would be the one with 
 whom the Northern confederacy would be the most desir- 
 ous of preserving peace and friendship. An alliance so 
 contrary to their immediate interest would not therefore 
 be easy to form, nor, if formed, would it be observed and 
 fulfilled with perfect good faith.' 
 
 Nay, it is far more probable that in America, as in 
 Europe, neighboring nations, acting under the impulse of 
 opposite interests and unfriendly passions, would fre- 
 quently be found taking different sides. Considering our 
 distance from Europe, it would be more natural for these 
 confederacies to apprehend danger from one another 
 than from distant nations, and therefore that each of 
 them should be more desirous to guard against the others 
 by aid of foreign alliances, than to guard against for- 
 eign dangers by alliances between themselves. And here 
 let us not forget how much more easy it is to receive for- 
 eign fleets into our ports, and foreign armies into our 
 country, than it is to persuade or compel them to depart. 
 How many conquests did the Romans and others make 
 
 ' The appeals of the Confederate States to Great Britain and France 
 during the Civil War are an evidence of the truth of this, and their 
 friendly attitude towards the South, with the sympathy for the North 
 shown by Russia, proves how quickly European alliances and coalitions 
 would follow upon any creation of rival confederacies on this continent. — 
 Editor. 
 
Jay] DIVISION LEADS TO FOREIGN HOSTILITIES. 2? 
 
 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 sover- 
 eignties would tend to secure us against the hostilities 
 and improper interference of foreign nations. 
 
 PUBLIUS. 
 
 No. 6. (Independent Journal, November 14, 1787.) Hamilton. 
 
 SEPARATE CONFEDERACIES SURE TO END IN 
 DISSENSION BETWEEN STATES. 
 
 Certainty of interstate contests — Causes of hostility among nations 
 — Wars produced by personal influence — Alleged pacific genius of re- 
 publics — Republics as much addicted to war as monarchies — Examples 
 of Sparta, Athens, Rome, Carthage, Venice, Holland, and Britain — As 
 many popular as royal wars — Wars between France and England — 
 No reason to expect cordiality between the stales if separated — Vici- 
 nage constitutes nations natural enemies. 
 
 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 de- 
 lineate dangers of a different and, perhaps, still more 
 alarming kind — those which will in all probability flow 
 from dissensions between the States themselves, and from 
 domestic factions and convulsions. These have already 
 in some instances been slightly anticipated; but they 
 deserve a more particular and more full investigation. 
 
 A man must be far gone in Utopian speculations who 
 can seriously doubt that if these States should either be 
 wholly disunited, or only united in partial confederacies, 
 the subdivisions into which they might be thrown would 
 have frequent and violent contests with each other. To 
 presume a want of motives for such contests as an 
 
28 CAUSES FOR WARS. [No. 6 
 
 argument against their existence, would be to forget 
 that men are ambitious, vindictive, and rapacious. To 
 look for a continuation of harmony between a number of 
 independent, unconnected sovereignties in the same 
 neighborhood, would be to disregard the uniform course 
 of human events, and to set at defiance the accumulated 
 experience of ages. 
 
 The causes of hostility among nations are innumerable. There 
 are some which have a general and almost constant operation upon 
 the collective bodies of society. Of this description are the love 
 of power or the desire of pre-eminence and dominion — the jeal- 
 ousy of power, or the desire of equality and safety. There are 
 others which have a more circumscribed though an equally opera- 
 tive influence within their spheres. Such are the rivalships and 
 competitions of commerce between commercial nations. And 
 there are others, not less numerous than either of the former, 
 which take their'origin entirely in private passions ; in the attach- 
 ments, enmities, interests, hopes, and fears of leading individuals in 
 the communities of which they are members. Men of this class, 
 whether the favorites of a king or of a people, have in too many 
 instances abused the confidence they possessed ; and assuming the 
 pretext of some public motive, have not scrupled to sacrifice 
 the national tranquillity to personal advantage or personal grat- 
 ification. 
 
 The celebrated Pericles, in compliance with the resentment of a 
 prostitute,* at the expense of much of the blood and treasure of 
 his countrymen, attacked, vanquished, and destroyed the city of 
 the Samians. The same man, stimulated 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 accusa- 
 tions 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 
 Peloponnesian war; which, after various vicissitudes, intermis- 
 
 *Aspasia ; vide "Plutarch's Life of Pericles." — PUBLIUS. 
 
 \ Ibid. — PUBLIUS. 
 
 i Ibid. — PUBLTOS. 
 
 § Ibid. Phidias was supposed to have stolen some public gold, with 
 the connivance of Pericles, for the embellishment of the statue of 
 Minerva. — PuBLjus. 
 
Hamilton] PERSONAL INFLUENCE IN WARS. 29 
 
 sions, and renewals, terminated in the ruin of the Athenian com- 
 monwealth. 
 
 The ambitious cardinal who was prime minister to Henry 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,t the petulance of 
 another,! and the cabals of a third,§ liad in the contemporary 
 policy, ferments, and pacifications, of a considerable part of 
 Europe, are topics that have been too often descanted upon not to 
 be generally known. 
 
 To multiply examples of the agency of personal considerations 
 in the production of great national events, either foreign or 
 domestic, according to their direction, would be an unnecessary 
 waste of time. Those who have but a superficial acquaintance 
 with the sources from which they are to be drawn will themselves 
 recollect a variety of instances ; and those who have a tolerable 
 knowledge of human nature will not stand in need of such lights 
 to form their opinion either of the reality or extent of that agency. 
 Perhaps, however, a reference tending to illustrate the general 
 principle, may with propriety be made to a case which has 
 See lately happened among ourselves. If Shays had not . 
 
 No, 6. been a desperate debtor, it is much to be doubted 
 
 whether Massachusetts would have been plunged into a civil war. 
 
 But notwithstanding the concurring testimony of ex- 
 perience in this particular, there are still to be found 
 visionary or designing men who stand ready to advocate 
 the paradox of perpetual peace between the States, 
 though dismembered and alienated from each other. 
 The genius of republics (say they) is pacific; the spirit 
 
 * Worn by the Popes.—PuBLius. 
 f Mme. de Maintenon. — PUBLIUS. 
 i Duchess of Marlborough. — PuBLius. 
 § Mme. de Pompadour. — PuBWUS. 
 
30 REPUBLICS NOT PEACEFUL. Wo. 6 
 
 of commerce has a tendency to soften the manners of 
 men, and to extinguish those inflammable humors which 
 have so often kindled into wars. Commercial republics 
 like ours will never be disposed to waste themselves in 
 ruinous contentions with each other. They will be 
 governed by mutual interest, and will cultivate a spirit 
 of mutual amity and concord. 
 
 Is it not (we may ask these projectors in politics) the 
 true interest of all nations to cultivate the same benevo- 
 lent and philosophic spirit? If this be their true interest, 
 have they in fact pursued it? Has it not, on the con- 
 trary, invariably been found that momentary passions, 
 and immediate interests, have a more active and im- 
 perious control over human conduct than general or 
 remote considerations of policy, utility, or justice? 
 Have republics in practice been less addicted to war than 
 monarchies? Are not the former administered by men 
 as well as the latter? Are there not aversions, predilec- 
 tions, rivalships, and desires of unjust acquisitions, that 
 affect nations as well as kings? Are not popular assem- 
 blies frequently subject to the impulses of rage, resent- 
 ment, 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 in- 
 dividuals? Has commerce hitherto done anything more 
 than change the objects of war? Is not the love of 
 wealth as domineering and enterprising a passion as that 
 of power or glory? Have there not been as many wars 
 founded upon commercial motives since that has become 
 the prevailing system of nations, as were before occa- 
 sioned by the cupidity of territory or dominion? Has 
 not the spirit of commerce, in many instances, adminis- 
 tered new incentives to the appetite, both for the one 
 and for the other? Let experience, the least fallible 
 guide of human opinions, be appealed to for an answer 
 to these inquiries. 
 
 Sparta, Athens, Rome, and Carthage were all republics ; two of 
 
Hamilton] COMMERCE A CAUSE FOR WAR. 31 
 
 them, Athens and Carthage, of the commercial kind. Yet were 
 they as often engaged in wars, offensive and defensive, as the 
 neighboring monarchies of the same times. Sparta was Httle 
 better than a well-regulated camp ; and Rome was never sated of 
 carnage and conquest. 
 
 Carthage, though a commercial republic, was the aggressor in 
 the very war that ended in her destruction. Hannibal had carried 
 her arms into the heart of Italy and to the gates of Rome, before 
 Scipio, in turn, gave him an overthrow in the territories of 
 Carthage, and made a conquest of the commonwealth. 
 
 Venice, in later times, figured more than once in wars of am- 
 bition, till, becoming an object of terror 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, tooli a leading and conspicuous part in the wars of 
 Europe. They had furious contests with England for the 
 dominion of the sea, and were among the most persevering and 
 most implacable of the opponents of Louis XIV. 
 
 In the government of Britain the representatives of the people 
 compose one branch of the national legislature. Commerce has 
 been for ages the predominant pursuit of that country. Few 
 nations, nevertheless, have been more frequently engaged in war ; 
 and the wars in which that kingdom has been engaged have, in 
 numerous instances, proceeded from the people. 
 
 There have been, if I may so express it, almost as many popular 
 as royal wars. The cries of the nation and the importunities of 
 their representatives have upon various occasions dragged their 
 monarchs into war, or continued them in it contrary to their 
 inclinations, and sometimes contrary to the real interests of the 
 state. In that memorable struggle for superiority between the 
 rival houses of Austria and Bourbon, which so long kept Europe 
 in a flame, it is well known that the antipathies of the English 
 against the French, seconding the ambition, or rather the avarice, 
 of a favorite leader,t 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 
 
 * The League of Cambray, comprehending the Emperor, the King of 
 France, the King of Aragon, and most of the Italian princes and states. 
 
 — PUBLIUS. 
 
 t The Duke of Marlborough.— PuBLlus. 
 
32 STATES MOT E)CEMPT PROM WARS. [No. d 
 
 measure grown out of commercial considerations — the desire of 
 supplanting and the fear of being supplanted, either in particular 
 branches of traffic or in the general advantages of trade and 
 navigation.' 
 
 From this summary of what has taken place in other 
 countries, whose situations have borne the nearest resem- 
 blance to our own, what reason can we have to confide 
 in those reveries which would seduce us into an expecta- 
 tion of peace and cordiality between the members of the 
 present confederacy, in a state of separation? Have we 
 not already seen enough of the fallacy and extravagance 
 of those idle theories which have amused us with 
 promises of an exemption from the imperfections, weak- 
 nesses, and evils incident to society in every shape? Is it 
 not time to awake from the deceitful dream of a golden 
 age, and to adopt as a practical maxim for the direction 
 of our political conduct that we, as well as the other 
 inhabitants of the globe, are yet remote from the happy 
 empire of perfect wisdom and perfect virtue? 
 
 Let the point of extreme depression to which our 
 national dignity and credit have sunk, let the inconven- 
 iences felt everywhere from a lax and ill adminis- 
 tration of government, let the revolt of a part of the 
 State of North Carolina," the late menacing disturbances 
 
 ' In the text of the editions of 1802 and 1818, the following additional 
 sentences occur at this point : "and sometimes even the more culpable 
 desire of sharing in the commerce of other nations without their consent. 
 The last war but two between Britain and Spain sprang from the 
 attempts of the English merchants to prosecute an illicit trade with the 
 Spanish Main. These unjustifiable practices on their part produced 
 severities on the part of the Spaniards toward the subjects of Great Britain 
 which were not more justifiable; because they exceeded the bounds of a 
 just retaliation and were chargeable with inhumanity and cruelty. Many 
 of the English who were taken on the Spanish coast were sent to dig in 
 the mines of Potosi ; and by the usual progress of a spirit of resentment, 
 the innocent were, after a while, confounded with the guilty in indis- 
 criminate punishment. The complaints of the merchants kindled a 
 violent flame throughout the nation, which soon after broke out in the 
 House of Commons, which was communicated from that body to the 
 ministry. Letters of reprisal were granted, and a war ensued, which in 
 its consequences overthrew all the alliances that but twenty years before 
 had been formed with sanguine expectations of the most beneficial fruits." 
 — Editor. 
 
 ''See Ramsay's "Annals of Tennessee," Charleston, 1853. — Editor. 
 
Hamilton] MEIGHBORHOOD PRODUCES ENMITY. 33 
 
 in Pennsylvania,' and the actual insurrections and 
 
 rebellions in Massachusetts,' declare ! 
 
 So far is the general sense of mankind from corre- 
 sponding with the tenets of those who endeavor to lull 
 asleep our apprehensions of discord and hostility between 
 the States, in the event of disunion, that it has from long 
 observation of the progress of society become a sort of 
 axiom in politics, that vicinity, or nearness of situation, 
 constitutes nations natural enemies. An intelligent 
 writer expresses himself on this subject to this effect: 
 "Neighboring nations [says he] are naturally enemies 
 of each other, unless their common weakness forces them 
 to league in a confederative republic, and their 
 constitution prevents the differences that neighborhood 
 occasions, extinguishing that secret jealousy which dis- 
 poses all states to aggrandize themselves at the expense 
 of their neighbors." * This passage, at the same time, 
 points out the evil and suggests the remedy. 
 
 PUBLIUS. 
 
 No. 7- (Jndependent Journal, November 17, 1787.) Hamilton. 
 
 CAUSES FOR DISSENSIONS BETWEEN STATES 
 IF SEPARATED. 
 
 Territorial disputes — Public territory — Wyoming controversy — Ver- 
 mont dispute — Competitions of commerce — Discriminating commercial 
 regulations — The New York impost — The national debt — Difficulties of 
 apportioning debt — Laws in violation of private contracts — Example of 
 Rhode Island — Domestic and foreign alliances — Certainty of European 
 entanglements. 
 
 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 
 
 * Vide " Principes des Negociations," par I'Abbe de Mably. — Publius. 
 
 'See Hoyt's "Brief of a Title in the Seventeen Tovifnships of the 
 county of Luzerne " (with bibliography) ; Harrisburg, 1879. — Editor. 
 
 ^ A full history of Shays' rebellion will be found in Minot's " History, 
 of the Insurrections in Massachusetts " ; Worcester, 1787. — Editor. 
 
34 TERRITORIAL DISPUTES. [No. 7 
 
 to this question to say — precisely the same inducements 
 which have, at different times, deluged in blood all the 
 nations in the world. But unfortunately for us, the 
 question admits of a more particular answer. There are 
 causes of differences within our immediate contempla- 
 tion, of the tendency of which, even under the restraints 
 of a federal constitution, we have had sufficient experi- 
 ence 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.' 
 gee Perhaps the greatest proportion of wars that 
 
 No. 38. have desolated the earth have sprung from 
 
 this origin. This cause would exist among us in full 
 force. We have a vast tract of unsettled territory 
 within the boundaries of the United States. There 
 still are discordant and undecided claims between 
 several of them, and the dissolution of the Union would 
 lay a foundation for similar claims between them all. 
 It is well known that they have heretofore had serious 
 and animated discussion concerning the rights to the 
 lands which were ungranted at the time of the Revolution, 
 and which usually went under the name of crown lands. 
 The States within the limits of whose colonial govern- 
 ments they were comprised have claimed them as their 
 property, the others have contended that the rights of 
 the crown in this article devolved upon the Union; 
 especially as to all that part of the Western territory 
 which, either by actual possession, or through the sub- 
 mission of the Indian proprietors, was subjected to the 
 jurisdiction of the King of Great Britain, till it was 
 
 ' To discuss here the long struggle over the public territory, beginning 
 long prior to the Revolution and continued until the end of the Civil War, 
 which was in truth, aside from temporary and local disagreements, but a 
 struggle of the various sections of the Union to maintain a balance of inter- 
 est between the North and South, or East and West, would require far too 
 much space. An outline history is brilliantly given in Welling's " The 
 Land Politics of the United States," New York, l888; at greater length in 
 Sato's " History of the Land Question in the United States " (Baltimore, 
 l886), and much material in relation to the land problems is to be found 
 in Donaldson's "The Public Domain" (Washington, 1884). — Editor. 
 
Hamilton] PUBLIC TERRITORY. 3S 
 
 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 pru- 
 dent policy of Congress to appease this controversy, by 
 prevailing upon the States to make cessions to the 
 United States for the benefit of the whole. This has 
 been so far accomplished as, under a continuation of the 
 Union, to afford a decided prospect of an amicable 
 termination of the dispute. A dismemberment of the 
 Confederacy, however, would revive this dispute, and 
 would create others on the same subject. At present a 
 large part of the vacant Western territory is by cession at 
 least, if not by any anterior right, the common property 
 of the Union. If that were at an end, the States which 
 made the cession on a principle of federal compromise, 
 would be apt when the motive of the grant had ceased, 
 to reclaim the lands as a reversion. The other States 
 would no doubt insist on a proportion, by right of 
 representation. Their argument would be that a grant 
 once made could not be revoked; and that the justice 
 of participating in territory acquired or secured by the 
 joint efforts of the Confederacy, remained undiminished. 
 If, contrary to probability, it should be admitted by all 
 the States, that each had a right to a share of this com- 
 mon stock, there would still be a difficulty to be sur- 
 mounted as to a proper rule of apportionment. Different 
 principles would be set up by different States for this 
 purpose; and as they would affect the opposite interests 
 of the parties, they might not easily be susceptible of a 
 pacific adjustment. 
 
 In the wide field of Western territory, therefore, we perceive an 
 ample theater for hostile pretensions, without any umpire or com- 
 mon judge to interpose between the contending parties. To 
 reason from the past to the future, we shall have good ground to 
 apprehend that the sword would sometimes be appealed to as the 
 arbiter of their differences. The circumstances of the dispute 
 between Connecticut and Pennsylvania, respecting the land at 
 Wyoming, admonish us not to be sanguine in expecting an easy 
 - accommodation of such differences. The articles of confederation 
 obliged the parties to submit the matter to the decision of a federal 
 
3^ LAHfD DISPUTES BETWEEN STATES. [No.? 
 
 court. The submission was made, and the court decided in favor 
 of Pennsylvania. But Connecticut gave strong indications of 
 dissatisfaction with that determination ; nor did she appear to 
 be entirely resigned to it, till, by negotiation and management, 
 something like an equivalent was found for the loss she supposed 
 herself to have sustained. Nothing here said is intended to con- 
 vey the slightest censure on the conduct of that State. She no 
 doubt sincerely believed herself to have been injuried by the 
 decision ; and States, like individuals, acquiesce with great reluct- 
 ance in determinations to their disadvantage. 
 
 Those who had an opportunity of seeing the inside of the 
 transactions which attended the progress of the controversy be- 
 tween this State and the district of Vermont, can vouch the oppo- 
 sition we experienced, as well from States not interested as from 
 those which were interested in the claim ; and can attest the danger 
 to which the peace 6f the Confederacy might have been exposed, had 
 this State attempted to assert its rights by force. Two motives pre- 
 ponderated in that opposition : one, a jealousy entertained of our 
 future power ; and the other, the interest of certain individuals of 
 influence in the neighboring States, who had obtained grants of 
 lands under the actual government of that district. Even the States 
 which brought forward claims, in contradiction to ours, seemed 
 more solicitous to dismember this State than to establish their own 
 pretensions. These were New Hampshire, Massachusetts, and 
 Connecticut. New Jersey and Rhode Island, upon all occasions, 
 discovered a warm zeal for the independence of Vermont ; and 
 Maryland, till alarmed by the appearance of a connection between 
 Canada and that State, entered deeply into the same views. 
 These being small States, saw with an unfriendly eye the perspec- 
 tive 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 fruit- 
 ful source of contention. The States less favorably cir- 
 cumstanced would be desirous of escaping from the 
 disadvantages of local situation, and of sharing in the 
 advantages of their more fortunate neighbors. Each 
 State, or separate confederacy, would pursue a system of 
 commercial policy peculiar to itself. This would occa- 
 sion distinctions, preferences, and exclusions, which 
 would beget discontent. The habits of intercourse, on 
 
Hamilton] COMMERCIAL RESTRICTIONS. ^7 
 
 the basis of equal privileges, to which we have been ac- 
 customed 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 cir- 
 cumstance. We should be ready to denominate injuries those 
 things which were in reality the justifiable acts of independent 
 sovereignties consulting a distinct interest. The spirit of 
 enterprise, which characterizes the commercial part of 
 America, has left no occasion of displaying itself unim- 
 proved. 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 haye of rendering 
 others tributary to them by commercial regulations would be 
 See impatiently submitted to by the tributary States. The 
 
 No, 22. relative situation of New York, Connecticut, and New 
 
 Jersey, would afford an example of this kind. New York, from 
 the necessities of revenue, must lay duties on her importations. 
 A great part of these duties must be paid by the inhabitants of 
 the two other States in the capacity of consumers of what we 
 import. New York would neither be willing nor able to forego 
 this advantage. Her citizens would not consent that a duty paid 
 by them should be remitted in favor of the citizens of her neigh- 
 bors ; nor would it be practicable, if there were not this impedi- 
 ment in the way, to distinguish the customers in our own markets. 
 Would Connecticut and New Jersey long submit >to be taxed by 
 New York for her exclusive benefit? Should we be long permitted 
 to remain in the quiet and undisturbed enjoyment of a metropohs, 
 from the possession of which we derived an advantage so odious 
 to our neighbors, and, in their opinion, so oppressive ? Should we 
 be able to preserve it against the incumbent weight of Connecticut 
 on the one side, and the co-operating pressure of New Jersey on 
 the other? These are questions that temerity alone will answer in 
 the affirmative. ' 
 
 ' A large part of the European goods consumed in the northern part of 
 New Jersey, and of the western parts of Connecticut and Massachusetts, 
 were imported by New York merchants and thus paid the duties levied 
 
38 PUBLIC DEBT. [No. 7 
 
 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 pro- 
 gressive extinguishment afterward, would be alike pro- 
 ductive of ill-humor and animosity. How would it be 
 possible to agree upon a rule of apportionment satisfac- 
 tory to all? There is scarcely any that can be proposed 
 which is entirely free from real objections. These, as 
 usual, would be exaggerated by the adverse interest of 
 the parties. There are even dissimilar views among the 
 States^as to the general principle of discharging the 
 public debt. Some of them, either less impressed with 
 the importance of national credit, or because their citi- 
 zens have little, if any, immediate interest in the ques- 
 tion, feel an indifference, if not a repugnance, to the 
 payment of the domestic debt at any rate. These would 
 be inclined to magnify the difficulties of a distribution. 
 Others of them, a numerous body of whose citizens are 
 creditors to the public beyond the proportion of the State 
 in the total amount of the national debt, would be strenu- 
 ous for some equitable and effective provision. The 
 procrastinations of the former would excite the resent- 
 ments of the latter. The settlement of a rule would, in 
 the meantime, be postponed by real differences of opinion 
 
 by the state of New York. As a result it was alleged that New York 
 • drew into its public purse from Connecticut alone a yearly sum variously 
 estimated at between $100,000 and $200,000. In the same manner 
 Newport levied a " tribute " on the eastern part of Connecticut. Both 
 New Jersey and ''Connecticut, therefore, were warmly Federal, and were 
 among the first to adopt the constitution, while the States of New York 
 and Rhode Island were correspondingly strongly Anti-federal. New 
 York was finally forced into ratification by the threat of her commercial 
 classes that rather than forego the benefits of this trade, certain to be 
 affected by federal duties, they would make New York city a separate 
 state and thfen join the Union ; and Rhode Island only assented when 
 the passing of a federal revenue bill insured her loss of the trade of 
 Connecticut. In the same manner every tariff bill that has markedly 
 taxed one part of the country for the benefit of another has always 
 stirred up sectional ill-feeling (the most notable instance being the 
 attempt of South Carolina to nullify the tariff of 1828), and became such 
 a source of discontent to the Southern jtates as to result in an insertion, 
 in the constitution of the Southern Confederacy, of a prohibition of all 
 protective taxes on imports. — Editor. 
 
Hamilton] APPORTIONMENT OF PUBLIC DEBT. 39 
 
 and affected delays. The citizens of the States interested 
 would clamor; foreign powers would urge for the satis- 
 faction 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 would as naturally be disinclined to a revision, 
 which was likely to end in an increase of their own 
 incumbrances. Their refusal would be too plausible a 
 pretext to the complaining States to withhold their con- 
 tributions, not to be embraced with avidity; and the 
 non-compliance of these States with their engagements 
 would be a ground of bitter discussion and altercation. 
 If even the rule adopted should in practice justify the 
 equality of its principle, still delinquencies in payments 
 on the part of some of the States would result from a 
 diversity of other causes — the real deficiency of resources; 
 the mismanagement of their finances; accidental dis- 
 orders in the management of the government; and, in 
 addition to the rest, the reluctance with which men com- 
 monly part with money for purposes that have outlived 
 the exigencies which produced them, and interfere with 
 the supply of immediate wants. Delinquencies, from 
 whatever causes, would be productive of complaints, 
 recriminations, and quarrels. There is, perhaps, nothing 
 more likely to disturb the tranquillity of nations than 
 their being bound to mutual contributions for any com- 
 mon object that does not yield an equal and coincident 
 benefit. For it is an observation, as true as it is trite, 
 that there is nothing men iliffer 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 citi- 
 zens are injured by them, may be considered as another 
 
4° ZAIVS VIOLATING CONTRACTS. [No. 7 
 
 probable source of hostility. We are not authorized to 
 expect that a more liberal or more equitable spirit would 
 preside over the legislations of the individual States 
 hereafter, if unrestrained by any additional checks, than 
 we have heretofore seen in too many instances disgrac- 
 ing their several codes. We have observed the disposi- 
 tion 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 oi parchment, 
 but of the sword, would chastise such atrocious breaches 
 of moral obligation and social justice. 
 
 The probability of incompatible alliances between the 
 different States or confederacies and different foreign 
 nations, and the effects of this situation upon the peace of 
 the whole, have been sufificiently unfolded in some pre- 
 ceding papers. From the view they have exhibited of 
 this part of the subject, this conclusion is to be drawn, 
 that America, if not connected at all, or only by the feeble 
 tie of a simple league, offensive and defensive, would, by 
 the operation of such jarring alliances, be gradually 
 entangled in all the pernicious labyrinths of European 
 politics and wars; and by the destructive contentions of 
 the parts into which she was divided, would be likely to 
 become a prey to the artifices and machinations of 
 powers equally the enemies of them all. Divide etimpera * 
 must be the motto of every nation that either hates or 
 fears us.f Publius. 
 
 * Divide and command. — Publius. 
 
 f In order that the whole subject of these papers may as soon as possi- 
 ble 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. — Publius. 
 
 ' Rhode Island, by issues of paper money and tender laws of unusual 
 depravity, had enacted practical public and private repudiation (see Case 
 of Trevett vs. Weeden, Providence, 1787, and Potter's " Account of the 
 Paper Money of Rhode Island," Providence, 1880), and in retaliation 
 Connecticut passed a law forbidding its courts to try cases of Rhode 
 Island creditors against Connecticut debtors. — Editor, 
 
Hamilton] tVAJ?S BETWEEN STATES. 41 
 
 No. 8. CNew York Packet, November so, 1787.) Hamilton. 
 
 CONSEQUENCES OF HOSTILITIES BETWEEN 
 STATES. 
 
 War between the states particularly distressing — Lack of standing 
 armies and fortified posts — Necessary introduction of standing armies — 
 Compeiitioh between the states in armaments — Examples of Greek repub- 
 lics — National danger unduly magnifies military power at expense of 
 civil — Example and peculiar felicity of Great Britain — Similiarity of 
 the United States — Needlessness of extensive military establishments. 
 
 To the People of the State of New York: 
 
 Assuming it therefore as an established truth that the 
 several States in case of disunion, or such combinations 
 of them as might happen to be formed out of the wreck 
 of the general Confederacy, would be subject to those 
 vicissitudes of peace and war, of friendship and enmity 
 with each other, which have fallen to the lot of all neigh- 
 boring nations not united under one government, let us 
 enter into a concise detail of some of the consequences 
 that would attend such a situation. 
 
 War between States, in the first period of their sepa- 
 rate existence, would be accompanied with much greater 
 distresses than it commonly is in those countries where 
 regular military establishments have long obtained. The 
 disciplined armies always kept on foot on the continent 
 of Europe, though they bear a malignant aspect to liberty 
 and economy, have, notwithstanding, been productive of 
 the signal advantage of rendering sudden conquests 
 impracticable, and of preventing that rapid desolation 
 which used to mark the progress of war prior to their 
 introduction. The art of fortification has contributed to 
 the same ends. The nations of Europe are encircled 
 with chains of fortified places, which mutually obstruct 
 invasion. Campaigns are wasted in reducing two or three 
 frontier garrisons, to gain admittance into an enemy's 
 country. Similar impediments occur at every step, to ex- 
 haust the strength and delay the progress of an invader. 
 
42 SAFETY A DIRECTOR OF NATIONAL CONDUCT. [No. 8 
 
 Formerly, an invading army would penetrate into the 
 heart of a neighboring country almost as soon as intelli- 
 gence of its approach could be received; but now a com- 
 paratively small force of disciplined troops, acting on the 
 defensive, with the aid of posts, is able to impede and 
 finally to frustrate the enterprises of one much more 
 considerable. The history of war, in that quarter of the 
 globe, is no longer a history of nations subdued and 
 empires overturned, but of towns taken and retaken; of 
 battles that decide nothing; of retreats more beneficial 
 than victories; of much effort and little acquisition. 
 
 In this country the scene would be altogether reversed. 
 The jealousy of military establishments would postpone 
 them as long as possible. The want of fortifications, 
 leaving the frontiers of one State open to another, would 
 facilitate inroads. The populous States would, with little 
 difficulty, overrun their less populous neighbors. Con- 
 quests would be as easy to be made as difificult to be 
 retained. War, therefore, would be desultory and pred- 
 atory. 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 
 external danger is the most powerful director of national 
 conduct. Even the ardent love of liberty will, after a 
 time, give way to its dictates. The violent destruction 
 of life and property incident to war, the continual effort 
 and alarm attendant on a state of continual danger, will 
 compel nations the most attached to liberty to resort for 
 repose and security to institutions which have a tendency 
 to destroy their civil and political rights. To be more 
 safe, they at length become willing to run the risk of 
 being less free.' 
 
 ' The present armaments of Europe are a pointed instance of the truth 
 of this idea, and it is to be noted that every addition to them is brought 
 about, not through any increased probability of war, but entirely through 
 mutual emulation. The truth can also be proved negatively by the fact 
 
Hamilton] STANDING ARMIES. 
 
 43 
 
 The institutions chiefly alluded to are standing armies and 
 the correspondent appendages of miHtary establishments. Stand- 
 SeeNos.24 '"^ armies, it is said, are not provided against in the 
 25, 29, 41, ' "ew Constitution ; and it is therefore inferred that 
 64, 74. they may exist under it.* Their existence, however, 
 
 from the very terms of the proposition, is, at most, problematical 
 and uncertain.' But standing armies, it may be replied, must 
 inevitably result from a dissolution of the Confederacy. Frequent 
 war and constant apprehension, which require a state of as con- 
 stant preparation, will infallibly produce them. The weaker 
 States or confederacies would first have recourse to them, to put 
 themselves upon an equality with their more potent neighbors. 
 They would endeavor to supply the inferiority of population and 
 resources by a more regular and effective system of defense, by 
 disciplined troops, and by fortifications. They would, at the same 
 time, be necessitated to strengthen the executive arm of gover.-,- 
 ment, in doing which their constitutions would acquire a pro- 
 gressive direction toward monarchy. It is of the nature of war to 
 iiicrease the executive at the expense of the legislative authority. 
 
 The expedients which have been mentioned would soon give the 
 States or confederacies that made use of them a superiority over 
 their neighbors. Small states, or states of less natural strength. 
 
 that the United States army in 1795, when we were menaced by strong 
 unfriendly governments possessing Canada and Louisiana, was nearly 
 3500, or approximately one soldier to every 1300 of inhabitants, while in 
 1896, with peace with Canada an almost certain factor, and with the sub- 
 stitution of a weak power on our southern frontier, our army numbered 
 but 25,000, or approximately one to every 2800 of inhabitants. And 
 that this decrease of ratio is not merely due to our transatlantic position 
 is shown by the armies of the republics to the south of us, where domes- 
 tic and foreign peace are far less secure. Thus Mexico felt called upon 
 to maintain (i8g6) an army of over 50,000 men actually serving, with 
 more than double that number in her effective reserve, and Brazil (1896) 
 had an army of nearly 25,000 men with a reserve of equal size. Noth- 
 ing can better prove that the standing armies of to-day are in no sense 
 the result of particular forms of government, but are merely the sacri- 
 fice of a given amount of manhood and money by each country, in absolute 
 ratio to the interior and exterior dangers with which each is threatened, in 
 order that life, property, and commerce, may have their necessary 
 security. — Editor. 
 
 * This objection will be fully examined in its proper place, and it will 
 be shown that the only natural precaution which could have been taken 
 on this subject has been taken ; and a much better one than is to be 
 found in any constitution that has been heretofore framed in America, 
 most of which contain no guard at all on this subject. — Publius. 
 
 ' In the text of 1802 : " This inference, from the very form of the 
 proposition, is, at best, problematical and uncertain." — Editor. 
 
44 INDUSTRY INCOMPATIBLE WITH MILITARISM. ^oA 
 
 under vigorous governments, and with the assistance of disciplined 
 armies, have often triumphed over large states, or states of greater 
 natural strength, which have been destitute of these advantages. 
 Neither the pride nor the safety of the more important States or 
 confederacies would permit them long to submit to this mortifying 
 and adventitious superiority. They would quickly resort to means 
 similar to those by which it had been effected, to reinstate them- 
 -selves 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 accom- 
 modated to this standard. 
 
 These are not vague inferences drawn from supposed or specu- 
 lative defects in a Constitution the whole power of which is lodged 
 in the hands of a people, or their representatives and delegates, 
 but they are solid conclusions drawn from the natural and neces- 
 sary progress of human affairs. 
 
 It may perhaps be asked by way of objection to this, why did 
 not standing armies spring up out of the contentions which so 
 often distracted the ancient republics of Greece .' Different 
 answers, equally satisfactory, may be given to this question. The 
 industrious habits of the people of the present day, absorbed in the 
 pursuits of gain, and devoted to the improvements of agriculture 
 and commerce, are incompatible with the condition of a nation of 
 soldiers, which was the true condition of the people of those 
 republics. The means of revenue which have been so greatly 
 multiphed 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 pro- 
 duced an entire revolution in the system of war, and have rendered 
 disciplined armies, distinct from the body of the citizens, the 
 inseparable companions of frequent hostility. 
 
 There is a wide difference, also, between military 
 establishments in a country seldom exposed by its situation 
 to internal invasions, and in one which is often subject 
 to them, and always apprehensive of them. The rulers of 
 the former can have no good pretext, if they are ever so 
 inclined, to keep on foot armies so numerous as must of 
 necessity be maintained in the latter. These armies 
 being in the first case, rarely, if at all, called into activity 
 for interior defense, the people are in no danger of being 
 
Hamilton] EVILS OF MILITARY SUPtiEMACY. 45 
 
 broken to military subordination. The laws are not 
 accustomed to relaxations in favor of military exigencies; 
 the civil state remains in full vigor, neither corrupted 
 nor confounded with the principles or propensities of the 
 other state. The smallness of the army renders the 
 natural strength of the community an overmatch for it; 
 and the citizens, not habituated to look up to the military 
 power for protection, or to submit to its oppressions, 
 neither love nor fear the soldiery; they view them with 
 a spirit of jealous acquiescence in a necessary evil, and 
 stand ready to resist a power which they suppose may be 
 exerted to the prejudice of their rights. The army 
 under such circumstances may usefully aid the magistrate 
 to suppress a small faction, or an occasional mob, or 
 insurrection; but it will be unable to enforce encroach- 
 ments against the united efforts of the great body of the 
 people. 
 
 In a country in the predicament last described, the 
 contrary of all this happens. The perpetual menac- 
 ings of danger oblige the government to be always pre- 
 pared to repel it; its armies must be numerous enough 
 for instant defense. The continual necessity for their 
 services enhances the importance of the soldier, and 
 proportionably degrades the condition of the citizen.' 
 The military state becomes elevated above the civil. 
 The inhabitants of territories often the theater of war 
 are unavoidably subjected to frequent infringements on 
 their rights, which serve to weaken their sense of those 
 rights; and by degrees the people are brought to con- 
 sider the soldiery not only as their protectors, but as 
 their superiors. The transition from this disposition to 
 that of considering them masters is neither remote nor 
 difficult; but it is very difficult to prevail upon a people 
 under such impressions to make a bold or effectual 
 resistance to usurpations, supported by the military 
 power. 
 
 ' The relation of the soldier to the citizen in Germany at present is a 
 striking proof of this theory. — Editor. 
 
46 INSULATED SITUATION AN ADVANTAGE. [No. 8 
 
 The kingdom of Great Britain falls within the first description. 
 An insular situation, and a powerful marine, guarding it in a great 
 measure against the possibility of foreign invasion, supersede the 
 necessity of a numerous army within the kingdom. A sufficient 
 force to make head against a sudden descent, till the militia could 
 have time to rally and embody, is all that has been deemed 
 requisite. No motive of national policy has demanded, nor would 
 public opinion have tolerated, a larger number of troops upon its 
 domestic establishments. There has been for a long time past 
 little room for the operation of the other causes which have been 
 enumerated»as the consequences of internal war. This peculiar 
 felicity of situation has, in a great degree, contributed to preserve 
 the liberty which that country to this day enjoys, in spite of the 
 prevalent venality and corruption. If, on the contrary, Britain had 
 been situated on the continent, and had been compelled, as she 
 would have been, by that situation, to make her military establish- 
 ments 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. 'Tis possible, 
 though not easy, that the people of that island may be enslaved 
 from other causes ; but it cannot be by the prowess of an army so 
 inconsiderable as that which has been usually kept up within the 
 kingdom. 
 
 If we are wise enough to preserve the Union we may 
 for ages enjoy an advantage similar to that of an insulated 
 situation. Europe is at a great distance from us. Her 
 colonies in our vicinity will be likely to continue too 
 much disproportioned in strengh to be able to give us 
 any dangerous annoyance. Extensive military establish- 
 ments cannot, in this position, be necessary to our 
 security. But if we should be disunited, and the integral 
 .parts should either remain separated, or, which is most 
 probable, should be thrown together into two or three 
 confederacies, we should be, in a short course of time, in 
 the predicament of the continental powers of Europe — 
 our liberties would be a prey to the means of defending 
 ourselves against the ambition and jealousy of each 
 other. 
 
 This is an idea not superficial or futile, but solid and 
 weighty. It deserves the most serious and mature con- 
 sideration of every prudent and honest man of whatever 
 
Hamilton] A BARRIER AGAIN'ST FACTION. 47 
 
 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 Constitu- 
 tion 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 ad- 
 versaries would quickly give place to the more substan- 
 tial forms of dangers, real, certain, and formidable. 
 
 PUBLIUS. 
 
 No. 9. (Jndepcndent Jotcrnat, November 21, 1787.) Hamilton. 
 
 THE UNION A SAFEGUARD AGAINST DOMES- 
 TIC DISTURBANCES. 
 
 Example of Greek and Italian republics — Arguments against republi- 
 can government and civil liberty — Improvements in the art of govern- 
 ment — Advantages of extended territory — Opinion of Montesquieu — 
 Necessity for subdivision implied in Montesquieu' s view — Federalization 
 an expedient for the extension of government — Quotation from Mon- 
 tesquieu-^Inaccurate distinction between confederation and consolidation 
 — Definition of a confederate republic — Federal character of proposed con- 
 stitution — Lycian confederacy. 
 
 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 
 Momestic faction and insurrection. It is impossible to 
 read the history of the petty republics of Greece and 
 Italy without feeling sensations of horror and disgust at 
 the distractions with which they were continually agitated, 
 and at the rapid succession of revolutions by which they 
 were kept in a state of perpetual vibration between the 
 extremes of tyranny and anarchy. If they exhibit occa- 
 sional calms, these only serve as short-lived contrasts to 
 the furious storms that are to succeed. If now and then 
 
48 SCIENCE OF POLITICS PROGRESSIVE. [No. 9 
 
 intervals of felicity open to view, we behold them with a 
 mixture of regret arising from the reflection that the 
 pleasing scenes before us are soon to be overwhelmed by 
 the tempestuous waves of sedition and party rage. If 
 momentary rays of glory break forth from the gloom, 
 while they dazzle us with a transient and fleeting bril- 
 liancy, they at the same time admonish us to lament that 
 the vices of government should pervert the direction and 
 tarnish the luster of those bright talents and exalted 
 endowments for which the favored soils that produced 
 them have been so justly celebrated. 
 
 From the disorders that disfigure the annals of those republics 
 the advocates of depotism have drawn arguments, not only against 
 the forms of republican government, but against the very princi- 
 ples of civil liberty. They have decried all free government as 
 inconsistent with the order of society, and have indulged themselves 
 in malicious exultation over its friends and partisans. Happily for 
 mankind, stupendous fabrics reared on the basis of liberty, which 
 have flourished for ages, have, in a few glorious instances, refuted 
 their gloomy sophisms. And, I trust, America will be the broad 
 and solid foundation of other edifices, not less magnificent, which 
 will be equally permanent monuments of their errors. 
 
 But it is not to be denied that the portraits they have 
 sketched of republican government were too just copies 
 of the originals from which they were taken. If it had 
 been found impracticable to have devised models of a 
 more perfect structure, the enlightened friends to liberty 
 would have been obliged to abandon the cause of that 
 species of government as indefensible. The science of 
 politics, however, like most other sciences, has received 
 great improvement. The efficacy of various principles is 
 now well understood, which were either not known at all, 
 or imperfectly known to the ancients. The regular dis- 
 See tribution of power into distinct departments; 
 
 No. 47. the introduction of legislative balances and 
 
 checks; the institution of courts composed of judges 
 holding their offices during good behavior; the repre- 
 gee sentation of the people in the legislature by 
 
 Nos, 58-61, deputies of their own election : these are wholly 
 new discoveries, or have made their principal progress 
 
Hamilton] MONTESQUIEU ON SMALL REPUBLICS. 49 
 
 towards perfection in modern times. They are means, 
 and powerful means by which the excellences of republican 
 government may be retained and its imperfections lessened 
 or avoided. To this catalogue of circumstances that 
 tend to the amelioration of popular systems of civil 
 government, I shall venture, however novel it may appear 
 to some, to add one more, on a principle which has been 
 made the foundation of an objection to the new Constitu- 
 tion; I mean the enlargement of the orbit within 
 which such systems are to revolve, either in respect to 
 the dimensions of a single State, or to the consolidation 
 SeeNos. of several smaller States into one great Con- 
 I0andl4. federacy. The latter is that which imme- 
 diately concerns the object under consideration. It will, 
 however, be of use to examine the principle in its appli- 
 cation to a single State, which shall be attended to in 
 another place. 
 
 The utility of a Confederacy, as well to suppress 
 faction and to guard the internal tranquillity of States, as 
 to increase their external force and security, is in reality 
 not a new idea. It has been practiced upon in different 
 countries and ages, and has received the sanction of the 
 most approved writers on the subjects of politics. The 
 opponents of the plan proposed have, with great assiduity, 
 cited and circulated the observations of Montesquieu on 
 the necessity of a contracted territory for a republican 
 government." But they seem not to have been apprised 
 
 ' This undoubtedly was designed as a reply to an extract from Montes- 
 quieu in the third letter of Cato (George Clinton) published in the New 
 York Journal, October 25, 1787 (Ford's " Essays on the Constitution," 
 p. 256) where Montesquieu is quoted as saying, " It is natural to a re- 
 public to have only a small territory, otherwise it cannot long subsist; 
 in a large one, there are men of large fortunes, and consequently of less 
 moderation; there are too great deposits to trust in the hands of a single 
 subject ; an ambitious person soon becomes sensible that he may be 
 happy, great, and glorious by oppressing his fellow-citizens, and that he 
 might raise himself to grandeur, on the ruins of his country. In large 
 republics, the public good is sacrificed to a thousand views; in a small 
 one, the interest of the public is easily perceived, better understood, and 
 more within the reach of every citizen; abuses have a less extent, and of 
 course are less protected — he also shows you, that the duration of the 
 republic of Sparta was owing to its having continued with the same ex- 
 
so SMALLNESS OF TERRITORY UNDESIRABLE. [No. 9 
 
 of the sentiments of that great man expressed in another 
 part of his work, nor to have adverted to the conse- 
 quences of the principle to which they subscribe with 
 such ready acquiescence. 
 
 When Montesquieu recommends a small extent for 
 republics, the standards he had in view were of dimen- 
 sions far sh9i,rt of the limits of almost every one of these 
 States. Neither Virginia, Massachusetts, Pennsylvania, 
 New York, North Carolina, nor Georgia can by any 
 means be compared with the models from which he 
 reasoned and to which the terms of his description apply. 
 If we therefore take his ideas on this point as the crite- 
 rion of truth, we shall be driven to the alternative either 
 of taking refuge at once in the arms of monarchy, or of 
 splitting ourselves into an infinity of little jealous, clash- 
 ing, tumultuous commonwealths, the wretched nurseries 
 of unceasing discord, and the miserable objects of uni- 
 versal pity or contempt. Some of the writers who have 
 come forward on the other side of the question seem to 
 have been aware of the dilemma; and have even been 
 bold enough to hint at the division of the larger States 
 as a desirable thing. Such an infatuated policy, such 
 a desperate expedient, might, by the multiplication of 
 petty offices, answer the views of men who possess not 
 qualifications to extend their influence beyond the narrow 
 circles of personal intrigue, but it could never promote 
 the greatness or happiness of the people of America. 
 
 Referring the examination of the principle itself to 
 
 tent of territory after all its wars; and that the ambition of Athens and 
 Lacedaemon to command and direct the union, lost them their liberties 
 and gave them a monarchy. " Though the last hundred years has made 
 any discussion of the theory unnecessary, yet it is interesting to cite an 
 opinion of Jefferson's, written immediately after the triumph of democ- 
 racy in 1801, when he wrote, " It furnishes a new proof of the falsehood 
 of Montesquieu's doctrine, that a republic can be preserved only in a 
 small territory. The reverse is the truth . Had our territory been even 
 a third only of what it is, we were gone. But while frenzy and delusion, 
 like an epidemic, gained certain parts, the residue remained sound and 
 untouched, and held on till their brethren could recover from the tem- 
 porary delusion; and that circumstance has given me great comfort." 
 — Editor. 
 
Hamilton] A CONFEDERATE REPUBLIC. S^ 
 
 another place, as has been already mentioned, it will be 
 sufficient to remark here that, in the sense of the author 
 who has been most emphatically quoted upon the occasion, 
 it would only dictate a reduction of the size of the more 
 considerable members of the Union, but would not mili- 
 tate against their being all comprehended in one con- 
 federate 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 opposition to a general Union of the States, that 
 he explicitly treats of a Confederate Republic as the 
 expedient for extending the sphere of popular govern- 
 ment, and reconciling th'e advantages of monarchy with 
 those of republicanism. 
 
 "It is very probable " (says he*), "that mankind would have 
 been obliged at length to live constantly under the government of 
 a single person, had they not contrived a kind of constitution that 
 has all the internal advantages of a republican, together with the 
 external force of a monarchical government. I mean a Con- 
 federate Republic. 
 
 " This form of government is a convention by which several 
 smaller states agree to become members of a larger one, which 
 they intend to form. It is a kind of assemblage of societies that 
 constitute a new one, capable of increasing, by means of new 
 associations, till they arrive to such a degree of power as to be 
 able to provide for the security of the united body. 
 
 " A republic of this kind, able to withstand an external force, 
 may support itself without any internal corruptions. The form 
 of this society prevents all manner of inconveniences. 
 
 " If a single member should attempt to usurp the supreme 
 authority, he could not be supposed to have an equal authority 
 and credit in all the confederate states. Were he to have too 
 great influence over one, this would alarm the rest. Were he to 
 subdue a part, that which would still remain free might oppose 
 him with forces independent of those which he had usurped, and 
 overpower him before he could be settled in his usurpation. 
 
 " Should a popular insurrection happen in one of the confeder- 
 ate 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 con- 
 
 * " Spirit of Laws,'' vol. i. book ix. chap, i, — Pubwvs, 
 
52 A CONFEDERACY DEFINED. [lJo-9 
 
 federacy may be dissolved, and the confederates preserve their 
 sovereignty. 
 
 " As this government is composed of small republics, it enjoys 
 the internal happiness of each ; and with respect to its external 
 situation, it is possessed, by means of the association, of all the 
 advantages of large monarchies." 
 
 I have thought it proper to quote at length these interesting 
 passages, because they contain a luminous abridgment of the prin- 
 cipal arguments in favor of the Union, and must effectually re- 
 move the false impressions which a misapplication of other parts 
 of the work was calculated to make. They have, at the same 
 time, an intimate connection with the more immediate design of 
 this paper ; which is, to illustrate the tendency of the Union to 
 repress domestic faction and insurrection. 
 
 A distinction, more subtle than accurate, has been 
 raised between a Confederacy and a consolidation of the 
 States. The essential characteristic of the first is said to 
 be the restriction of its authority to the members in 
 their collective capacities, without reaching to the indi- 
 viduals of whom they are composed. It is contended 
 that the national council ought to have no concern with 
 any object of internal administration. An exact equality 
 of suffrage between the members has also been insisted 
 upon as a leading feature of a confederate government. 
 These positions are, in the main, arbitrary; they are 
 supported neither by principle nor precedent. It has in- 
 deed happened that governments of this kind have gen- 
 erally 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 inves- 
 tigation, that, as far as the principle contended for has 
 prevailed, it has been the cause of incurable disorder and 
 imbecility in the government. 
 
 The definition of a Confederate Republic seems simply to 
 be "an assemblage of societies," or an association of two 
 or more states into one state. The extent, modifica- 
 tions, and objects of the federal authority are mere 
 
Hamilton] LYCIAN CONFEDERACY. S3 
 
 matters of discretion. So long as the separate organiza- 
 tion of the members be not abolished; so long as it exists, 
 by a constitutional necessity, for local purposes; though 
 it should bfe in perfect subordination to the general 
 authority of the union, it would still be, in fact and in 
 theory, an association of states, or a confederacy. The 
 proposed Constitution, so far from implying an abolition 
 of the State governments, makes them constituent parts 
 of the national sovereignty, by allowing them a direct 
 representation in the Senate, and leaves in their posses- 
 sion certain exclusive and very important portions of 
 sovereign power. This fully corresponds, in every 
 rational import of the terms, with the idea of a federal 
 government. 
 
 In the Lycian confederacy, which consisted of twenty-three 
 CITIES or republics, the largest were entitled to three votes in the 
 COMMON COUNCIL, those of the middle class to two, and the 
 smallest to one. The COMMON COUNCIL had the appointment of 
 all the judges and magistrates of the respective CITIES. This 
 was certainly the most delicate species of interference in their 
 internal administration ; for if there be anything that seems ex- 
 clusively appropriated to the local jurisdictions, it is the appoint- 
 ment of their own officers. Yet Montesquieu, speaking of this 
 association says : " Were I to give a model df an excellent Con- 
 federate Republic, it would be that of Lycia." Thus we perceive 
 that the distinctions insisted upon were not within the contemplav 
 tion of this enlightened civilian ; and we shall be lead to conclude, 
 that they are the novel refinements of an erroneous theory. 
 
 PUBLIUS. 
 
54 POPULAR GOVERNMENTS FACTIOUS. [Ko. 10 
 
 No. 10. (New York Daily Ad7jertiser,'!^ov.'Z2,tyi7.) MadlSOn. 
 
 ^ THE UNION A CHECK ON FACTION. 
 
 Tendency of popular gopernments to faction — Complaints of injustice 
 and instability in State governments — Definition of faction — Remedy of 
 faction — Curtailment of liberty — Causes of faction innate in man — Op- 
 posing interests— Legislation by majority akin to interested judgments 
 — Class legislation— Control of faction— Majority invasion of rights— 
 A pure democracy unable to control faction — A remedy in representative 
 government — Difference between a democracy and a republic — Advan- 
 tages of a delegated chosen body — Superiority of large over small republics 
 — Greater proportion of fit characters — Advantage of greater number of 
 electors — Necessity of acquaintance with local circumstances — Happy 
 combination of national and local governments in the United States — 
 Greater territory and population permitted by republican than democratic 
 government — Faction essentially local — Advantage of Union over States 
 as to local prejudices and schemes of injustices — The Union a retnedy for 
 diseases most incident to republics. 
 
 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 brealc and control the 
 violence of faction. The friend of popular governments 
 never finds himself so much alarmed for their character 
 and fate as when he contemplates their propensity to 
 this dangerous vice. He will not fail, therefore, to set 
 a due value on any plan which, without violating the 
 principles to which he is attached, provides a proper 
 cure for it. The instability, injustice, and confusion 
 introduced into the public councils, have, in truth, been 
 the mortal diseases under which popular governments 
 have everywhere perished; as they continue to be the 
 favorite and fruitful topics from which the adversaries to 
 liberty derive their most specious declamations. The 
 valuable improvements made by the American constitu- 
 tions on the popular models, both ancient and modern, 
 cannot certainly be too much admired; but it would be 
 an unwarrantable partiality to contend that they have 
 as effectually obviated the danger on this side as was 
 
Madison] OVERBEARING RULE OF MAJORITIES. ^^ 
 
 wished and expected. Complaints are everywhere 
 heard from our most considerate and virtuous citizens, 
 equally the friends of public and private faith, and of 
 public and personal liberty, that our governments are 
 too unstable, that the public good is disregarded in the 
 conflicts of rival parties, and that measures are too often 
 decided, not according to the rules of justice and the 
 rights of the minor party, but by the superior force of 
 an interested and overbearing majority.' However 
 anxiously we may wish that these complaints had no 
 foundation, the evidence of known facts will not permit 
 us to deny that they are in some degree true. It will be 
 found, indeed, on a candid review of our situation, that 
 some of the distresses under which we labor have been 
 erroneously charged on the operation of our govern- 
 ments; but it will be found, at the same time, that other 
 causes will not alone account for many of our heaviest 
 misfortunes; and, particularly, for that prevailing and 
 
 " This was the almost universal defect of the State governments prior to 
 the adoption of the Federal Constitution, and led Madison to assert that 
 " in our Government the real power lies in the majority of the com- 
 munity and the invasion of . . . rights is chiefly to be apprehended, 
 not from the acts of Government contrary to the sense of its constituents, 
 but from the acts in which the Government is the mere instrument of 
 the major number of the constituents." The fact is the more extraor- 
 dinary as several of the States had adopted bills of rights which should 
 have amply protected the life and property of the minority. Notable is 
 the experience of Virginia, which embodied in its constitution the elabo- 
 rate bill of rights framed by George Mason, yet in absolute contravention 
 of its various clauses the legislature at moments practically centered all 
 powers in its own hands. They suspended the sittings of the courts, de- 
 cided their own quorum so as to place the legislative power in the hands 
 of a minority of a majority ; twice attempted to annul all constitutional 
 authority by appointing a dictator ; limited the franchise ; enacted tender 
 and other ex post facto laws ; and attainted a man of high treason 
 and declared his life forfeited without process of law. Such conduct 
 produced a stinging protest from Jefferson (see quotation in Tlie 
 Federalist, No. 48). Not till the adoption of the Federal Constitution 
 with its restraints on State powers and a Supreme Court to enforce them, 
 was there any true check given to the State legislatures or true protection 
 given to minorities. It is to be noted that several of the South American 
 republics possess bills of rights and supreme courts to enforce them, 
 without the least attaining the same results, while, to the contrary, in 
 Great Britain, where the legislative authority is practically omnipotent, 
 the minority, as a whole, has been fairly dealt with in the last hundred 
 years. — Editor. 
 
56 LIBERTY AND FACTION. [No, 10 
 
 increasing distrust of public engagements, and alarm for 
 private rights, which are echoed from one end of the 
 continent to the other. These must be chiefly, if not 
 wholly, effects of the unsteadiness and injustice with 
 which a factious spirit has tainted our public adminis- 
 trations. 
 
 By a faction, I understand a number of citizens, 
 whether amounting to a majority or minority of the 
 whole, who are united and actuated by some common 
 impulse of passion, or of interest, adverse to the rights 
 of other citizens, or to the permanent and aggregate 
 interests of the community. 
 
 There are two methods of curing the mischiefs of 
 faction: the one, by removing its causes; the other, by 
 controlling its effects. 
 
 There are again two methods of removing the causes 
 of faction: the one, by destroying the liberty which is 
 essential to its existence; the other, by giving to every 
 citizen the same opinions, the same passions, and the 
 same interests. 
 
 It could never be more truly said than of the first 
 remedy, that it was worse than the disease. Liberty is 
 to faction what air is to fire, an aliment without which it 
 instantly expires. But it could not be less folly to 
 abolish liberty, which is essential to political life because 
 it nourishes faction, than it would -be to wish the annihi- 
 lation of air, which is essential to animal life, because it 
 imparts to fire its destructive agency. 
 
 The second expedient is as impracticable as the fitst 
 would be unwise. As long as the reason of man con- 
 tinues fallible, and he is at liberty to exercise it, different 
 opinions will be formed. As long as the connection 
 subsists between his reason and his self-love, his opinions 
 and his passions will have a reciprocal influence on each 
 other; and the former will be objects to which the latter 
 will attach themselves. The diversity in the faculties of 
 men, from which the rights of property originate, is not 
 less an insuperable obstacle to a uniformity of interests. 
 The protection of these faculties is the first object of 
 
Madison] PROPERTY A CAUSE OF PARTIES. 57 
 
 government. From the protection of different and un- 
 equal faculties of acquiring property, the possession of 
 different degrees and kinds of property, immediately 
 results; and from the influence of these on the senti- 
 ments and views of the respective proprietors, ensues 
 a division of the society into different interests and 
 parties. 
 
 The latent causes of faction are thus sown in the 
 nature of man; and we see them everywhere brought into 
 different degrees of activity, according to the different cir- 
 cumstances of civil society. A zeal for different opinions 
 concerning religion, concerning government, and many 
 other points, as well of speculation as of practice; an 
 attachment to different leaders ambitiously contending 
 for pre-eminence and power; or to persons of other 
 descriptions whose fortunes have been interesting to the 
 human passions, have, in turn, divided mankind into 
 parties, inflamed them with mutual animosity, and ren- 
 dered them much more disposed to vex and oppress each 
 other than to co-operate for their common good. So 
 strong is this propensity of mankind to fall into mutual 
 animosities that, where no substantial occasion presents 
 itself, the most frivolous and fanciful distinctions have 
 been sufficient to kindle their unfriendly passions and 
 excite their most violent conflicts. But the most com- 
 mon and durable source of factions has been the various 
 and unequal distribution of property. Those who hold 
 and those who are without property have ever formed 
 distinct interests in society. Those who are creditors, 
 and those who are debtors, fall under a like discrimina- 
 tion. A landed interest, a manufacturing interest, a 
 mercantile interest, a moneyed interest, with many 
 lesser interests, grow up of necessity in civilized nations, 
 and divide them into different classes actuated by dif- 
 ferent sentiments and views. The regulation of these 
 various and interfering interests forms the principal 
 task of modern legislation, and involves the spirit of 
 party and faction in the necessary and ordinary opera- 
 tions of the government. 
 
SS LEGISLATORS AS PARTISANS. [No. 10 
 
 No man is allowed to be a judge in his own cause, be- 
 cause his interest would certainly bias his judgment and, 
 not improbably, corrupt his integrity. With equal, nay 
 with greater reason, a body of men are unfit to be both 
 judges and parties at the same time; yet what are many 
 of the most important acts of legislation but so many 
 judicial determinations, not indeed concerning the rights 
 of single persons, but concerning the rights of large 
 bodies of citizens? And what are the different classes 
 of legislators but advocates and parties to the causes 
 which they determine? Is a law proposed concerning 
 private debts? It is a question to which the creditors 
 are parties on one side and the debtors on the other. 
 Justice ought to hold the balance between them. Yet 
 the parties are, and must be, themselves the judges; and 
 the most numerous party, or, in other words, the most 
 powerful faction, must be expected to prevail. Shall 
 domestic manufactures be encouraged, and in what 
 degree, by restrictions on foreign manufactures? are 
 questions which would be differently decided by the 
 landed and the manufacturing classes, and probably by 
 neither with a sole regard to justice and the public good. 
 The apportionment of taxes on the various descriptions 
 of property is an act which seems to require the most 
 exact impartiality; yet there is, perhaps, no legislative 
 act in which greater opportunity and temptation are 
 given to a predominant party to trample on the rules of 
 justice. Every shilling with which they overburden the 
 inferior number is a shilling saved to their own pockets. 
 
 It is in vain to say that enlightened statesmen will be 
 able to adjust these clashing interests, and render them 
 all subservient to the public good. Enlightened states- 
 men will not always be at the helm. Nor in many cases 
 can such an adjustment be made at all without taking 
 into view indirect and remote considerations, which will 
 rarely prevail over the immediate interest which one 
 party may find in disregarding the rights of another or 
 the good of the whole. 
 
 The inference to which we are brought is that the 
 
Madison] NO CURE TO FACTION IN PURE DEMOCRACY. 59 
 
 causes of faction cannot be removed, and that relief is 
 only to be sought in the means of controlling its effects. 
 
 If a faction consists of less than a majority, relief, is 
 supplied by the republican principle, which enables the 
 majority to defeat its sinister views by regular vote. It 
 may clog the administration, it may convulse the 
 society; but it will be unable to execute and mask its 
 violence under the forms of the Constitution. When a 
 majority is included in a faction, the form of popular 
 government, on the other hand, enables it to sacrifice 
 to its ruling passion or interest both the public good and 
 the rights of other citizens. To secure the public good 
 and private rights against the danger of such a faction, 
 and at the same time to preserve the spirit and the form 
 of popular government, is then the great object to which 
 our inquiries are directed. Let me add that it is the 
 great desideratum by which this form of government can 
 be rescued from the opprobrium under which it has so 
 long labored, and be recommended to the esteem and 
 adoption of mankind. 
 
 By what means is this object attainable? Evidently by 
 one of two only: Either the existence of the same 
 passion or interest in a majority at the same time must 
 be prevented, or the majority, having such coexistent 
 passion or interest, must be rendered, by their number 
 and local situation, unable to concert and carry into 
 effect schemes of oppression. If the impulse and the 
 opportunity be suffered to coincide, we well know that 
 neither moral nor religious motives can be relied on as 
 an adequate control. They are not found to be such on 
 the injustice and violence of individuals, and lose their 
 efficacy in proportion to the number combined together, 
 that is, in proportion as their efficacy becomes needful. 
 
 From this view of the subject it may be concluded 
 that a pure democracy, by which I mean a society con- 
 sisting of a small number of citizens, who assemble and 
 administer the government in person, can admit of no 
 cure for the mischiefs of faction. A common passion or 
 interest will, in almost every case, be felt by a majority 
 
6o DEMOCRACY AND REPUBLIC. [No. 10 
 
 of the whole; a communication and concert result from 
 the form of government itself; and there is nothing to 
 check the inducements to sacrifice the weaker party or an 
 obnoxious individual. Hence it is that such democracies 
 have ever been spectacles of turbulence and contention; 
 have ever been found incompatible with personal security 
 or the rights of property; and have in general been as 
 short in their lives as they have been violent in their 
 deaths. Theoretic politicians, who have patronized this 
 species of government, have erroneously supposed that 
 by reducing mankind to a perfect equality in their politi- 
 cal rights, they would, at the same time, be perfectly 
 equalized and assimilated in their possessions, their 
 opinions, and their passions. 
 
 A republic, by which I mean a government in which 
 the scheme of representation takes place, opens a different 
 prospect, and promises the cure for which we are seeking. 
 Let us examine the points in which it varies from pure 
 democracy, and we shall comprehend both the nature of 
 the cure and the efficacy which it must derive from the 
 Union. 
 
 The two great points of difference between a democracy 
 and a republic are: first, the delegation of the govern- 
 ment, in the latter, to a small number of citizens elected 
 by the rest; secondly, the greater number of citizens, 
 and greater sphere of country, over which the latter may 
 be extended. 
 
 The effect of the first difference is, on the one hand, 
 to refine and enlarge the public views, by passing them 
 through the medium of a chosen body of citizens, whose 
 wisdom may best discern the true interest of their country, 
 and whose patriotism and love of justice will be least 
 likely to sacrifice it to temporary or partial considera- 
 tions. Under such a regulation, it may well happen that 
 the public voice, pronounced by the representatives of 
 the people, will be more consonant to the public good 
 than if pronounced by the people themselves, convened 
 for the purpose. On the other hand, the effect may be 
 inverted. Men of factious tempers, of local prejudices, 
 
Madison] ADVANTAGE OF MANY ELECTORS. 6l 
 
 or of sinister designs, may, by intrigue, by corruption, 
 or by other means, first obtain the suffrages, and then 
 betray the interest, of the people. The question result- 
 ing is, whether small or extensive republics are more 
 favorable to the election of proper guardians of the 
 public weal; and it is clearly decided in favor of the latter 
 by two obvious considerations: 
 
 In the first place, it is to be remarked that, however 
 small the republic may be, the representatives must be 
 raised to a certain number, in order to guard against the 
 cabals of a few ; and that, however large it may be, they 
 must be limited to a certain number, in order to guard 
 against the confusion of a multitude. Hence, the num- 
 ber of representatives in the two cases not being in 
 proportion to that of the two constituents, and being 
 proportionally greater in the small republic, it follows 
 that, if the proportion of fit characters be not less in the 
 large than in the small republic, the former will present a 
 greater option, and consequently a greater probability of 
 a fit choice. 
 
 In the next place, as each representative will be chosen 
 by a greater number of citizens in the large than in the 
 small republic, it will be more difficult for unworthy 
 candidates to practice with success the vicious arts by 
 which elections are too often carried; and the suffrages 
 of the people, being more free, will be more likely to 
 center in men who possess the most attractive merit and 
 the most diffusive and established characters.' 
 
 It must be confessed that in this, as in most other cases, 
 there is a mean, on both sides of which inconveniences 
 will be found to lie. By enlarging too much the number 
 of electors, you render the representative too little 
 acquainted with all their local circumstances and lesser 
 interests; as by reducing it too much, you render him 
 unduly attached to these, and too little fit to comprehend 
 and pursue great and national objects. The federal Con- 
 
 ■ In this conclusion Madison neglected to consider the converse of his 
 proposition, that the greater the number of electors, the fewer there 
 would be who could personally know the candidate. — Editor. 
 
62 LOCAL NATURE OF FACTION. [No. 10 
 
 stitution forms a happy combination in this respect; the 
 great and aggregate interests being referred to the 
 national, the local and particular to the State legislatures. 
 
 The other point of difference is, the greater number of 
 citizens and extent of territory which may be brought 
 SeeNos. 9 within the compass of republican than of 
 and 14. democratic government; and it is this cir- 
 
 cumstance principally which renders factious combina- 
 tions less to be dreaded in the former than in the latter. 
 The smaller the society, the fewer probably will be the 
 distinct parties and interests composing it; the fewer the 
 distinct parties and interests, the more frequently will 
 a majority be found of the same party; and the smaller 
 the number of individuals composing a majority, and 
 the smaller the compass within which they are placed, the 
 more easily will they concert and execute their plans of 
 oppression. Extend the sphere, and you take in a greater 
 variety of parties and interests; you make it less probable 
 that a majority of the whole will have a common motive 
 to invade the rights of other citizens; or, if such a com- 
 mon motive exists, it will be more difficult for all who 
 feel it to discover their own strength and to act in unison 
 with each other. Besides other impediments, it may be 
 remarked that where there is a consciousness of unjust 
 or dishonorable purposes, communication is always 
 checked by distrust in proportion to the number whose 
 concurrence is necessary. 
 
 Hence it clearly appears that the same advantage 
 which a republic has over a democracy, in controlling the 
 effects of faction, is enjoyed by a large over a small 
 republic, is enjoyed by the Union over the States com- 
 posing it. Does the advantage consist in the substitu- 
 tion of representatives whose enlightened views and 
 virtuous sentiments render them superior to local prej- 
 udices and to schemes of injustice? It will not be 
 denied that the representation of the Union will be most 
 likely to possess these requisite endowments. Does it 
 consist in the greater security afforded by a greater 
 variety of parties against the event of any one party 
 
Madison] UNION CURBS POLITICAL DISEASES. 63 
 
 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 and accomplishment of the secret wishes of an 
 unjust and interested majority? Here, again, the extent 
 of the Union gives it the most palpable advantage. 
 
 The influence of factious leaders may kindle a flame 
 within their particular States, but will be unable to 
 spread a general conflagration through the other States. 
 A religious sect may degenerate into a political faction in 
 a part of the Confederacy; but the variety of s6cts dis- 
 persed 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 orproperty, 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 pro- 
 portion as such a malady is more likely to taint a par- 
 ticular county or district than an entire State. 
 
 In the extent and proper structure of the Union, 
 therefore, we behold a republican remedy for the dis- 
 eases 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. 
 
64 AMERICA COMMERCIALLY ADVElSrrUROUS. Wo. 11 
 
 . No. II. (rndefcndeni Journal, 'iiiowemberi^,T.jZT). Hamilton. 
 
 UTILITY OF UNION AS REGARDS COMMERCE 
 AND A NAVY. 
 
 Adventurous commercial character of America — Commercial jealousy 
 of Europe — A national commercial policy necessary to counteract Euro- 
 pean restrictions — Discrimination against Great Britain — Establishment 
 of a Federal navy — The United States likely to become the arbiter of 
 Europe in America — Disunion certain to make our commerce a prey — 
 Separation will enable maritime nations to prescribe the conditions of our 
 political existence — National commercial rights which will be lost by a 
 dissolution of the Confederacy — The fisheries — A navy a great national 
 object — Share of the South, Middle, and New England States in a navy — 
 Unrestrained intercourse between the States — Unlikelihood of free inter- 
 state commerce without unity — Ascendency in American affairs — Euro- 
 pean domination of the world — Buffon's and Raynal's theory of degeneracy 
 in America. 
 
 To the People of the State of New York: 
 
 The importance of the Union, in a commercial light, is 
 one of those points about which there is least room to 
 entertain a difference of opinion, and which has, in fact, 
 commanded the most general assent of men who have 
 any acquaintance with the subject. This applies as well 
 to our intercourse with foreign countries as with each 
 other. 
 
 There are appearances to authorize a supposition that the 
 adventurous spirit which distinguishes the commercial character 
 of America has already excited uneasy sensations in several of the 
 maritime powers of Europe. They seem to be apprehensive of our 
 too great interference in that carrying trade which is the sup- 
 port of their navigation and the foundation of their naval strength. 
 Those of them which have colonies in America look forward to 
 what this country is capable of becoming, with painful solicitude. 
 They foresee the dangers tliat may threaten their American 
 dominions from the neighborhood of States which have all the 
 dispositions, and would possess all the means, requisite to the 
 creation of a powerful marine. Impressions of this kind will 
 naturally indicate the policy of fostering divisions among us, and 
 of depriving us, as far as possible, of an active commerce in our 
 own bottoms. This would answer the threefold purpose of pre- 
 
Hamilton] PROHIBITORY REGULATIONS. 65 
 
 venting our interference in their navigation, of monopolizing the 
 profits of our trade, and of clipping the wings by which we might 
 soar to a dangerous greatness. Did not prudence forbid the 
 detail, it would not be difficult to trace, by facts, the workings of 
 this policy to the cabinets of ministers. 
 
 If we continue united, we may counteract a policy so unfriendly 
 to our prosperity in a variety of ways. By prohibitory regulations 
 extending at the same time throughout the States, we may oblige 
 foreign countries to bid against each other for the privileges of our 
 markets. This assertion will not appear chimerical to those who 
 are able to appreciate the importance of the markets of three mil- 
 lions of people — increasing in rapid progression, for the most part 
 exclusively addicted to agriculture, and likely from local circum- 
 stances to remain so — to any manufacturing nation ; and the 
 immense difference there would be to the trade and navigation of 
 such a nation, between a direct communication in its own ships, 
 and an indirect conveyance of its products and returns, to and 
 from America, in the ships of another country. Suppose, for 
 instance, we had a government in America capable of excluding 
 Great Britain (with whom we have at present no treaty of com- 
 merce) from all our ports ; what would be the probable operation 
 of this step upon her politics ? Would it not enable us to negoti- 
 gee ate, with the fairest prospect of success, for commer- 
 
 No. 32. cial privileges of the most valuable and extensive kind 
 
 in the dominions of that kingdom ? When these questions have 
 been asked upon other occasions, they have received a plausible, 
 but not a solid or satisfactory answer. It has been said that 
 prohibitions on our part would produce no change in the system 
 of Britain, because she could prosecute her trade with us through 
 the medium of the Dutch, who would be her immediate customers 
 and paymasters for those articles which were wanted for the 
 supply of our markets. But would not her navigation be materi- 
 ally injured by the loss of the important advantage of being her 
 own carrier in that trade } Would not the principal part of its 
 profits be intercepted by the Dutch, as a compensation for their 
 agency and risk .' Would not the mere circumstance of freight 
 occasion a considerable deduction ? Would not so circuitous an 
 intercourse facilitate the competitions of other nations, by enhancing 
 the price of British commodities in our markets, and by transfer- 
 ring to other hands the management of this interesting branch of 
 the British commerce ? 
 
 A mature consideration of the objects suggested by these ques- 
 tions will justify a belief that the real disadvantages to Britain 
 
66 FEDERAL NA VY. tNo. 11 
 
 from such a state of things, conspiring with the prepossessions 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 enjoy- 
 ment 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 immuni- 
 ties in our markets, would be likely to have a correspondent effect 
 on the conduct of other nations, who would not be inclined to see 
 themselves altogether supplanted in our trade. 
 
 A further resource for influencing the conduct of 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 effi- 
 cient government would put it in our power, at a period 
 not very distant, to create a navy which, if it could not 
 vie with those of the great maritime powers, would at 
 least be of respectable weight if thrown into the scale of 
 either of two contending parties. This would be more 
 peculiarly the case in relation to operations in the West 
 Indies. A few ships of the line, sent opportunely to the 
 reinforcement of either side, would often be sufficient to 
 decide the fate of a campaign on the event of which 
 interests of the greatest magnitude were suspended. 
 Our position is, in this respect, a most commanding one. 
 And if to this consideration we add that of the usefulness 
 of supplies from this country in the prosecution of mili- 
 tary operations in the West Indies, it will readily be per- 
 ceived that a situation so favorable would enable us to 
 bargain with great advantage for commercial privileges. 
 See No. A price would be set not only upon our 
 
 11, post. friendship, but upon our neutrality. By a 
 steady adherence to the Union, we may hope, ere long, to 
 become the arbiter of Europe in America, and to be able 
 to incline the balance of European competitions in this 
 part of the world as our interest may dictate. 
 
 But in the reverse of this eligible situation, we shall 
 discover that the rivalships of the parts would make 
 them checks upon each other, and would frustrate all the 
 
Hamilton] DiSUmoM KNTAlLS PASSIVE COMM^kCE. 67 
 
 tempting advantages which nature has kindly placed 
 within our reach. In a state so insignificant our com- 
 merce would be a prey to the wanton intermeddlings 
 of all nations at war with each other; who, having noth- 
 ing to fear from us, would with little scruple or remorse 
 supply their wants by depredations on our property as 
 often as it fell in their way. The rights of neutrality 
 will only be respected when they are* defended by an 
 adequate power. A nation despicable by its weakness 
 forfeits even the privilege of being neutral.' 
 
 Under a vigorous national government, the natural strength 
 and resources of the country, directed to a common interest, 
 would baffle all the combinations of European jealousy to 
 restrain our growth. This situation would even take away the 
 motive to such combinations, by inducing an impracticability of 
 success. An active commerce, an extensive navigation, and a 
 flourishing marine would then be the offspring of moral and 
 physical necessity. We might defy the little arts of the little 
 politicians to control or vary the irresistible and unchangeable 
 course of nature. 
 
 But in a state of disunion these combinations might exist and 
 might operate with success. It would be in the power of the 
 maritime nations, availing themselves of our universal impotence, 
 to prescribe the conditions of our political existence ; and as they 
 have a common interest in being our carriers, and still more in 
 preventing our becoming theirs, they would in all probability com- 
 bine to embarrass our navigation in such a manner as would in 
 effect destroy it, and confine us to a passive commerce. We 
 should then be compelled to content ourselves with the first price 
 of our commodities, and to see the profits of our trade snatched 
 from us to enrich our enemies and persecutors. That unequaled 
 spirit of enterprise which signalizes the genius of the American 
 merchants and navigators, and which is in itself an inexhaustible 
 mine of national wealth, would be stifled and lost, and poverty 
 and disgrace would overspread a country wliich, with wisdom, 
 might make herself the admiration and envy of the world. 
 
 There are rights of great moment to the trade of 
 America which are rights of the Union — I allude to the 
 fisheries, to the navigation of the Western lakes, and 
 
 ' This truth was quickly proved by the course of England and France 
 from 1794 until the War of 1812, for during that period our commerce 
 was a prey whenever either chose. — Editor. 
 
68 NAVY A NATIONAL OBJECT. [Ko. IX 
 
 to that of the Mississippi. The dissolution of the Con- 
 federacy would give room for delicate questions con- 
 cerning the future existence of these rights; which the 
 interest of more powerful partners would hardly fail to 
 solve to our disadvantage. The disposition of Spain 
 See with regard to the Mississippi needs no com- 
 
 iro,4. ment. 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 ex- 
 clude from the lists such dangerous competitors? 
 
 This branch of trade ought not to be considered as a 
 partial benefit. All the navigating States may, in dif- 
 ferent degrees, advantageously participate in it, and 
 under circumstances of a greater extension of mercantile 
 capital would not be unlikely to do it. As a nursery of 
 seamen it now is, or, when time shall have more nearly 
 assimilated the principles of navigation in the several 
 ■ States, will become, a universal resource. To the estab- 
 lishment of a navy it must be indispensable. 
 
 To this great national object, a navy, union will con- 
 tribute in various ways. Every institution will grow and 
 flourish in proportion to the quantity and extent of the 
 means concentered toward its formation and support. A 
 navy of the United States, as it would embrace the 
 resources of all, is an object far less remote than a navy 
 of any single State or partial confederacy, which would 
 only embrace the resources of a single part. It happens, 
 indeed, that different portions of confederated America 
 possess each some peculiar advantage for this. essential 
 establishment. The more southern States furnish in 
 greater abundance certain kinds of naval stores — tar, 
 pitch, and turpentine. Their wood for the construction 
 of ships is also of a more solid and lasting texture. The 
 difference in the duration of the ships of which the navy 
 
Hamilton] COMMERCE BETWEEN STATES. 6g 
 
 might be composed, if chiefly constructed of Southern 
 wood, would be of signal importance, either in the view 
 of naval strength or of national economy. Some of the 
 Southern and of the Middle States yield a greater plenty 
 of iron, and of better quality. Seamen must chiefly be 
 drawn from the Northern hive. The necessity of naval 
 protection to external or maritime commerce does not 
 require a particular elucidation, no more than the con- 
 duciveness 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 reciprocal wants at home, but for exportation to 
 foreign markets.' The veins of commerce in every part 
 will be replenished, and will acquire additional motion 
 and vigor from a free circulation of the commodities of 
 every part. Commercial enterprise will have much 
 greater scope, from the diversity in the productions of 
 different States. When the staple of one fails f'rom a bad 
 harvest or unproductive crop, it can call to its aid the 
 staple of another. The variety, not less than the value, 
 of products for exportation contributes to the activity of 
 foreign commerce. It can be conducted upon much 
 better terms with a large number of materials of a j;iven 
 value than with a smaller number of materials of the 
 same value, arising from the competitions of trade and 
 from the fluctuations of markets. Particular articles may 
 be in great demand at certain periods, and unsalable at 
 others; but if there be a variety of articles, it can 
 scarcely happen that they should all be at one time in the 
 latter predicament, and on this account the operations of 
 the merchant would be less liable to any considerable 
 obstruction or stagnation. The speculative trader will 
 at once perceive the force of these observations, and will 
 acknowledge that the aggregate balance of the commerce 
 
 ' Probably no single element has so much contributed to the pros- 
 perity of the United States as the fact that it is practically the largest 
 territory in the world in which unrestricted trade is permitted. — Editor. 
 
76 COMMEkClAL UNITY. i^o.W 
 
 of the United States would bid fair to be much more 
 favorable than that of the thirteen States without union 
 or with partial unions. 
 
 It may perhaps be replied to this that, whether the 
 States are united or disunited, there would still be an 
 intimate intercourse between them which would answer 
 the same ends; but this intercourse would be fettered, 
 interrupted, and narrowed by a multiplicity of causes, 
 which in the course of these papers have been amply 
 detailed. A unity of commercial, as well as political, 
 interests, can only result from a unity of government. 
 
 There are other points of view in which this subject 
 might be placed, of a striking and animating kind. But 
 they would lead us too far into the regions of futurity, 
 and would involve topics not proper for a newspaper dis- 
 cussion. I shall briefly observe that our situation 
 See No. 11 invites and our interests prompt us to aim at 
 ante. an ascendant in the system of American 
 
 affairs. ' The world may politically, as well as geographic- 
 
 ' In this idea is to be found an early expression of what has since come 
 to be loosely termed the Monroe Doctrine. But unquestionably this 
 very elastic principle, which to this day has never been precisely 
 defined, is in truth merely one expression of a fixed conviction in 
 the larger part of the people of the United States that European powers 
 shall eventually be wholly excluded from the two continents of America. 
 In 1783 Franklin urged upon the British peace-envoys the ceding of 
 Canada and Nova Scotia to the United States, on the grounds that all 
 true rapprochement between the two countries would be impossible so 
 long as those territories were retained by England, and time has proved 
 his view, for tliough kindred in blood with us, and with interests almost 
 identical, Great Britain is to-day in popular estimation our greatest 
 enemy. Scarcely less strong is the feeling against Spain, which from the 
 first has been of all European powers the one to which we owe the most 
 favors, yet toward which we have acted in a manner implying perpetual 
 national enmity. Warm as the national feeling has been toward France, 
 we aided St. Domingo to obtain its freedom by every possible, if sur- 
 reptitious device ; the moment news was received of Napoleon's 
 acquisition of Louisiana, Jefferson announced that "it is impossible that 
 France and the United States can continue long friends," and the ill- 
 feeling her occupation of Mexico produced is still memorable. Indeed, 
 Jefferson probably voiced, and continues to voice the instinctive feeling of 
 his countrymen when he declared that " our confederacy must be viewed as 
 the nest from which all America, North and South, is to be peopled," and 
 that " the object of both must be to exclude all European influence from 
 this hemisphere." He carried his concept so far, indeed, as even to 
 
Hamilton] EUROPEAN SUPREMACY. 71 
 
 ally, 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- 
 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 physical superiority, and have gravely 
 asserted that all animals, and with' them the human 
 species, degenerate in America — that even dogs cease to 
 bark after having breathed a while in our atmosphere.* 
 Facts have too long supported these arrogant pretensions 
 of the Europeans. It belongs to us to vindicate the 
 honor of the human race, and to teach that assuming 
 
 ' ' broach the idea that we consider the whole Gulf Stream as of our waters, 
 in which hostilities and cruising are to be frowned upon." 
 
 How far this policy is reasonable is not easily decided. On the one 
 hand, it is obvious that the American territories still held by European 
 powers are far better and more peacefully governed than those which 
 have achieved independence. To the contrary, it is certain that Europe 
 is far more liable to wars of material importance ; that the extension of 
 those wars to the western half of the world is almost inevitable so long 
 as they hold territories therein ; and that, moreover, these colonies are the 
 most potent cause of friction between the countries holding them and the 
 United States (instanced in the Fisheries and Behring Sea disputes with 
 Great Britain , and the Cuban difficulties with Spain). It is obvious that, in 
 more than one view, European possession of American territory consti- 
 tutes a menace to the peaceful policy of the United States. 
 
 It is to be regretted, in view of this policy, that President Cleveland 
 based his interference in the Venezuelan controversy on the ground of 
 danger to republican institutions, for the assumption appealed neither to 
 reason nor to humanity. Had he, in place of this pretext, taken the 
 position that the United States would hereafter insist that all disputes 
 between Europe and America must be arbitrated, and that in no case 
 would the United States allow European warfare to extend to this half of 
 the world, he would have taken a far more tenable position, have 
 advanced the interests of the United States, and have done a great service 
 to humanity. That this position is inevitable, and is in fact as much to 
 the interest of Europe as America, seems already settled in theory, and 
 the President who finally establishes it as a practice will rank his name 
 high in American history. — Editor. 
 
 * [Raynal's] " Recherches philosophiques sur les Americains." — 
 PuBLius. For a reply by Jefferson, see " Notes on Virginia " (Brooklyn, 
 1894) p. 99. — Editor. 
 
72 COMMERCE AND REVENUE. [No. 13 
 
 brother moderation. Union will enable us to do it. 
 Disunion will add anotlier victim to his triumphs. Let 
 Americans disdain to be the instruments of European 
 greatness! Let the thirteen States, bound together in a 
 strict and indissoluble Union, concur in erecting one 
 great American system, superior to the control of all 
 transatlantic force or influence, and able to dictate the 
 terms of the connection between the old and the new 
 world! PuBLius. 
 
 No. 12. (iV<a) K1W-/6 Fnir/J^/, November 27, 1787.) Hamilton. 
 
 UTILITY OF UNIONS AS REGARDS REVENUE. 
 
 Commerce the great source of national wealth — Commerce essential to 
 agriculture — Taxes must be apportioned to the quantity of money — Small 
 revenues of German Empire — Poverty of state treasuries — Taxation in 
 Great Britain — Duties the main dependence in America — Unpopularity 
 of excise and direct taxes — Duties best levied by general government — 
 State imposts will result in smuggling — Revenue patrols of France — 
 Unlikelihood of smuggling under national government — Disadvantage of 
 Britain as regards smuggling — State imposts — French and English 
 duties — Revenue from ardent spirits — National existence impossible with- 
 out revenue — Necessity for imposts — Unpopularity of excises and direct 
 taxation — Without an impost^ taxes will chiefly fall on Idnd. 
 
 To the People of the State of New York: 
 
 The effects of Union upon the commercial prosperity 
 of the States have been sufiSciently delineated. Its ten- 
 dency to promote the interests of revenue will be the 
 subject of our present inquiry. 
 
 The prosperity of commerce is now perceived and 
 acknowledged by all enlightened statesmen to be the 
 most useful as well as the most productive source of 
 national wealth, and has accordingly become a primary 
 object of their political cares. By multiplying the means 
 of gratification, by promoting the introduction and circu- 
 lation of the precious metals, — those darling objects of 
 human avarice and enterprise, — it serves to vivify and 
 
Hamilton] COMMERCE AND AGRICULTURE. 73 
 
 invigorate the channels of industry, and to make them 
 flow with greater activity and copiousness. The assid- 
 uous merchant, the laborious husbandman, the active 
 mechanic, and the industrious manufacturer — all orders 
 of men — look forward with eager expectation and growing 
 alacrity to this pleasing reward of their toils. The often- 
 agitated question between agriculture and commerce has, 
 from indubitable experience, received a decision which 
 has silenced the rivalship that once subsisted between 
 them, and has proved, to the satisfaction of their friends, 
 that their interests are intimately blended and inter- 
 woven. It has been found in various countries that, in 
 proportion as commerce has flourished, land has risen in 
 value. And how could it have happened otherwise? 
 Could that which procures a freer vent for the products 
 of the earth, which furnishes new incitements to the cul- 
 tivation 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 refine- 
 ment, is to lead men astray from the plainest truths of 
 reason and conviction. 
 
 The ability of a country to pay taxes must always be 
 proportioned, in a great degree, to the quantity of money 
 SeeNos. i"^ circulation, and to the celerity with which 
 30-36. it circulates. Commerce, contributing to 
 
 both these objects, must of necessity render the payment 
 of taxes easier, and facilitate the requisite supplies to the 
 treasury. The hereditary dominions of the Emperor of 
 Germany contain a great extent of fertile, cultivated, and 
 populous territory, a large proportion of which is situated 
 in mild and luxuriant climates. In some parts of this 
 territory are to be found the best gold and silver mines 
 in Europe. And yet, from the want of the fostering 
 
74 DIRECT 2- AXES UNPOPULAR. [No. 12 
 
 influence of commerce, that monarch can boast but slender 
 revenues. He has several times been compelled to owe 
 obligations to the pecuniary succors of other nations for 
 the preservation of his essential interests, and is unable, 
 upon the strength of his own resources, to sustain a long 
 or continued war. 
 
 But it is not in this aspect of the subject alone that Union will 
 be seen to conduce to the purpose of revenue. There are other 
 points of view, in which its influence will appear more immediate 
 and decisive. It is evident from the state of the country, from the 
 habits of the people, from the experience we have had on the 
 point itself, that it is impracticable to raise any very considerable 
 sums by direct taxation. Tax laws have in vain been multiplied ; 
 new methods to enforce the collection have in vain been tried ; 
 the public expectation has been uniformly disappointed, and the 
 treasuries of the States have remained empty. The popular sys- 
 tem of administration inherent in the nature of popular govern- 
 ment, coinciding with the real scarcity of money incident to a 
 languid and mutilated state of trade, has hitherto defeated every 
 experiment for extensive collections, and has at length taught the 
 different legislatures the folly of attempting them. 
 
 No person acquainted with what happens in other countries will 
 be surprised at this circumstance. In so opulent a nation as that 
 of Britain, where direct taxes from superior wealth must be much 
 more tolerable, and from the vigor of the government much more 
 practicable, than in America, far the greatest part of the national 
 revenue is derived from taxes of the indirect kind, from imposts, 
 and from excises. Duties on imported articles form a large branch 
 of this latter description. 
 
 In America it is evident that we must a long time depend for 
 the means of revenue chiefly on such duties. In most parts of it, 
 excises must be confined within a narrow compass. The genius 
 of the people will ill brook the inquisitive and peremptory spirit of 
 excise laws.' The pockets of the farmers, on the other hand, will 
 
 ' So unpopular was an excise tax in the last century that only three of 
 the colonies had levied it in colonial times, and not one state had dared 
 to use it as a source of revenue in the period from 1774 to 1787. In the 
 New York convention which ratified the constitution it was twice moved to 
 restrain wholly the national government from this form of taxation, and 
 two of the states, in their suggested amendments, wished all excises to 
 be apportioned on the states, leaving to each the question how to raise 
 its proportion. The reason of this unpopularity was due to the circum- 
 stance of the tax being practically the only one which fell on the prod- 
 uct of the small farmer, to whom ready money was always a rare 
 
Hamilton] STATE IMPOSTS IMPRACTICABLE. 75 
 
 reluctantly yield but scanty supplies, in the unwelcome shape of 
 impositions on their houses and lands ; and personal property is 
 too precarious and invisible a fund to be laid hold of in any other 
 way than by the imperceptible agency of taxes on consumption. 
 
 If these remarks have any foundation, that state of things which 
 will best enable us to improve and extend so valuable a resource 
 must be best adapted to our political welfare. And it cannot 
 admit of a serious doubt that this state of things must rest on the 
 basis of a general Union. As far as this would be conducive to 
 the interests of commerce, so far it must tend to the extension of 
 the revenue to be drawn from that source. As far as it would 
 contribute to rendering regulations for the collection of the duties 
 more simple and efficacious, so far it must serve to answer the pur- 
 poses 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 familiar habits of intercourse; — all these are cir- 
 cumstances that would conspire to render an illicit 
 trade between them a matter of little difficulty, and 
 would insure frequent evasions of the commercial regula- 
 tions of each other. The separate States or confedera- 
 cies would be necessitated by mutual jealousy to avoid 
 
 possession, all other taxes on consumption being levied on the mercantile 
 classes, who easily commanded the cash advance which the tax entailed. 
 Almost with the foundation of the national government, Hamilton ad- 
 vocated and obtained an excise tax, which in turn produced the Whisky 
 Rebellion. An excise was instituted in the War of 1812 and also in the 
 Civil War ; the latter became permanent, and now produces almost 
 half the government revenues. That it is no longer an unpopular tax is 
 due to the fact that the production of spirits, beer, and tobacco is now 
 controlled by great manufacturing corporations, which have no difficulty 
 in commanding ready money. Where the same conditions still exist 
 which formerly made the tax unpopular (the moonshine distilleries of the 
 Southern mountains), it is as much hated as ever. See articles of E. C. 
 James on Excises, and W. C. Ford on Internal Revenue, in Lalor's 
 " Cyclopasdia of Political Science." The same change in public opinion 
 has occurred in Great Britain. Johnson, in his Dictionary, defined Excise 
 as "a hateful tax levied upon commodities, and adjudged not by the 
 common judges of property, but wretches hired by those to whom 
 excise is paid," while now the beer tax is the one invariably used to 
 round out the yearly budget. — Editor. 
 
76 SMUGGLING CONTROLLABLE BY UNION. [No. 12 
 
 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 pre- 
 cautions by which the European nations guard the ave- 
 nues into their respective countries, as well by land as 
 by water; and which, even there, are found insufificient 
 obstacles to the adventurous stratagems of avarice. 
 
 In France, there is an army of patrols (as they are called) con- 
 stantly employed to secure their fiscal regulations against the 
 inroads of the dealers in contraband trade. Mr. Neckar computes 
 the number of these patrols at upwards of twenty thousand. This 
 shows the immense difficulty in preventing that species of traffic, 
 where there is an inland communication, and places in a strong 
 light the disadvantages with which the collection of duties in this 
 country would be encumbered, if by disunion the States should be 
 placed in a situation, with respect to each other, resembling that 
 of France with respect to her neighbors. The arbitrary and vexa- 
 tious 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 criti- 
 cal 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 destina- 
 tion. An ordinary degree of vigilance would be compe-. 
 tent to the prevention of any material infractions upon 
 the rights of the revenue. A few armed vessels, judi- 
 ciously 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 
 
Hamilton] REVENUE FROM SPIRITS. 77 
 
 United States lie at a great distance from Europe, and 
 at a considerable distance from all other places with 
 which they would have extensive connections of foreign 
 trade. The passage from them to us, in a few hours, or 
 in a single, night, as between the coasts of France and 
 Britain, and of other neighboring nations, would be 
 impracticable. This is a prodigious security against a 
 direct contraband with foreign countries; but a circui- 
 tous contraband to one State, through the medium of 
 another, would be both easy and safe. The difference 
 between a direct importation from abroad, and an indirect 
 importation through the channel of a neighboring State, 
 in small parcels, according to time and opportunity, with 
 the additional facilities of inland communication, must 
 be palpable to every man of discernment. 
 
 It is therefore evident that one national government 
 would be able, at much less expense, to extend the duties 
 on imports, beyond comparison, further than would be 
 practicable to the States separately, or to any partial 
 confederacies. Hitherto, I believe, it may safely be 
 asserted that these duties have not upon an average 
 exceeded in any State three per cent. In France they 
 are estimated to be about fifteen per cent, and in Britain 
 they exceed this proportion.* 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 quan- 
 tity imported into the United States may be estimated at 
 four millions of gallons; which, at a shilling per gallon, 
 would produce two hundred thousand pounds. That 
 article would well bear this rate of duty; and if it should 
 tend to diminish the consumption of it, such an effect 
 would be equally favorable to the agriculture, to the 
 economy, to the morals, and to the health of the society. 
 There is, perhaps, nothing so much a subject of national 
 extravagance as these spirits. 
 
 * If my memory be right they amount to twenty per cent. — PuBLlus. 
 
78 EXCISES UNPOPULAR. [No. 12 
 
 What will be the consequence, if we are not able to 
 avail ourselves of the resource in question in its full 
 extent? A nation cannot long exist without revenues. 
 Destitute of this essential support, it must resign its 
 independence and sink into the degraded condition of a 
 province. This is an extremity to which no government 
 will of choice accede. Revenue, therefore, must be had 
 at all events. In this country, if the principal part be 
 not drawn from commerce, it must fall with oppressive 
 weight upon land. It has been already intimated that 
 excises, in their true signification, are too little in unison 
 with the feelings of the people to, admit of great use 
 being made of that mode of taxation; nor, indeed, in 
 the States where almost the sole employment is agri- 
 culture, 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 con- 
 tributions by any other means than by taxes on con- 
 sumption. In populous cities, it may be enough the 
 subject of conjecture to occasion the oppression of indi- 
 viduals 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 neces- 
 sities 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 pos- 
 sessors 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 embarrass- 
 ments, 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 oppres- 
 sion of that valuable class of the citizens who are employed 
 in the cultivation of the soil. But public and private 
 distress will keep pace with each other in gloomy concert; 
 and, unite in deploring the infatuation of those counsels 
 which led to disunion. Publius. 
 
Hamilton] NATIONAL CIVIL LIST. 79 
 
 No. 13- (independent Jaurnal, 'Sovemher sS, ijSt .) Hamilton. 
 
 ADVANTAGES OF UNION FROM THE STAND- 
 POINT OF ECONOMY. 
 
 Smaller expense of civil list — Civil lists of separate confederacies — 
 Example of Great Britain — Probable lines of division of proposed con- 
 federacies — A Northern and a Southern league — Position of Pennsyl- 
 vania — Greater economy of one confederacy. 
 
 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 usually applied to another, and there will be so much the 
 less to be drawn from the pockets of the people. If the States are 
 united under one government, there will be but one national civil 
 list to support ; if they are divided into several confederacies, there 
 will be as many different national civil lists to be provided for — 
 and each of them, as to the principal departments, coextensive 
 with that which would be necessary for a government of the whole. 
 See The entire separation of the States into thirteen 
 
 No, 84. unconnected sovereignties is a project too extravagant 
 
 and too replete with danger to have many advocates. The ideas 
 of men who speculate upon the dismemberment of the empire seem 
 generally turned towards three confederacies — one consisting of the 
 four Northern, another of the four Middle, and a third of the five 
 Southern States. There is little probability that there would be a 
 greater number. According to this distribution, each confederacy 
 would comprise an extent of territory larger than that of the king- 
 dom of Great Britain. No well-informed man will suppose that 
 the affairs of such a confederacy can be properly regulated by a 
 government less comprehensive in its organs or institutions than 
 that which has been proposed by the Convention. When the 
 dimensions of a State attain to a certain magnitude, it requires the 
 same energy of government and the same forms of administration 
 which are requisite in one of much greater extent. This idea 
 admits not of precise demonstration, because there is no rule by 
 which we can measure the momentum of civil power necessaiy 
 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 
 
8o PROBABLE LEAGUE DIVISIONS. [No. 13 
 
 good, we shall see no reason to doubt that the like portion of 
 power would be sufficient to perform the same task in a society 
 far more numerous. Civil power, properly organized and exerted, 
 is capable of diffusing its force to a very great extent ; and can, in 
 a manner, reproduce itself in every part of a great empire by a 
 judicious arrangement of subordinate institutions. 
 
 The supposition that each confederacy into which the States 
 would be likely to be divided would require a government not less 
 comprehensive than the one proposed, will be strengthened by 
 another supposition, more probable than that which presents us 
 with three confederacies as the alternative to a general Union. If 
 See Nos. we attend carefully to geographical and commercial 
 
 1 and 5, considerations, in conjunction with the habits and 
 prejudices of the different States, we shall be led to conclude that 
 in case of disunion they will most naturally league themselves 
 under two governments. The four Eastern States, from all the 
 causes that form the links of national sympathy and connection, 
 may with certainty be expected to unite. New York, situated as 
 she is, would never be unwise enough to oppose a feeble and 
 unsupported flank to the weight of that confederacy. There are 
 other obvious reasons that would facilitate her accession to it. 
 New Jersey is too small a State to think of being a frontier, in 
 opposition to this still more powerful combination ; nor do there 
 appear to be any obstacles to her admission into it. Even 
 Pennsylvania would have strong inducements to join the Northern 
 league. An active foreign commerce, on the basis of her own 
 navigation, is her true policy, and coincides with the opinions and 
 dispositions of her citizens. The more Southern States, from 
 various circumstances, may not think themselves much interested 
 in the encouragement of navigation. They may prefer a system 
 which would give unlimited scope to all nations to be the carriers 
 as well as the purchasers of their commodities. Pennsylvania 
 may not choose to confound her interests in a connection so 
 adverse to her policy. As she must at all events be a frontier, 
 she may deem it most consistent with her safety to have her 
 exposed side turned towards the weaker power of the Southern 
 rather than towards the stronger power of the Northern Confed- 
 eracy. This would give her the fairest chance to avoid being the 
 Flanders of America. Whatever may be the determination of 
 Pennsylvania, if the Northern Confederacy includes New Jersey, 
 there is no likelihood of more than one confederacy to the south of 
 that State. 
 
 Nothing can be more evident than that the thirteen States will 
 
Madison] EXTENT OF TERRITORY. 8i 
 
 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 difierent 
 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. 
 
 No. 14. (AVio K<7>-/J /"acfe*, November 30, 1787.) MadisOtl, 
 
 OBJECTIONS TO THE EXTENT OF 
 TERRITORY. 
 
 An imaginary difficulty — Confusion of a republic with a democracy — 
 Error of celebrated democracies — Mechanical power of representation — 
 Natural limit of a democracy — Experience in representation under the 
 confederacy — Dimensions of the United States — Size of European coun- 
 tries — Limited jurisdiction of general government — Value of subordi- 
 nate governments in relation to size of territory — Eventual growth of 
 Union — Internal improvements facilitated — The more distant the State 
 the greater the need of national government — Warning against those 
 who favor disunion. 
 
 To the People of the State of New York: 
 
 We have seen the necessity of the Union, as our bul- 
 wark against foreign danger, as the conservator of peace 
 among ourselves, as the guardian of our commerce and 
 other common interests, as the only substitute for those 
 military establishments which have subverted the liber- 
 ties of the Old World, and as the proper antidote for the 
 diseases of faction, which have proved fatal to other 
 
82 REPUBLIC AND DEMOCRACY DEFINED. [No. 14 
 
 popular governments, and of which alarming symptoms 
 have been betrayed by our own. All that remains 
 within this branch of our inquiries is to take notice of 
 an objection that may be drawn from the great extent 
 of country which the Union embraces. A few obser- 
 vations on this subject will be the more proper, as it is 
 perceived that the adversaries of the new Constitution 
 are availing themselves of the prevailing prejudice with 
 regard to the practicable sphere of republican adminis- 
 tration, in order to supply by imaginary difficulties the 
 want of those solid objections which they endeavor in 
 vain to find. 
 
 The error which limits republican government to a 
 narrow district has been unfolded and refuted in preced- 
 SeeNos. ing papers. I remark here only that it seems 
 9 and 10. to owe its rise and prevalence chiefly to the 
 confounding of a republic with a democracy, applying to 
 the former reasonings drawn from the nature of the 
 latter. The true distinction between these forms was 
 also adverted to on a former occasion. It is that, in a 
 democracy, the people meet and exercise the government 
 in person; in a republic, they assemble and administer it 
 by their representatives and agents. A democracy, con- 
 sequently, 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 ab- 
 solute or limited monarchy, they have endeavored to 
 heighten the advantages, or palliate the evils of those 
 forms, by placing in comparison the vices and defects of 
 the republican, and by citing as specimens of the latter 
 the turbulent democracies of ancient Greece and modern 
 Italy. Under the confusion of names, it has been an 
 easy task to transfer to a republic observations applicable 
 to a democracy only; and among others, the observation 
 that it can never be established but among a small number 
 of people, living within a small compass of territory. 
 
Madison] NATURAL LIMIT OF REPUBLIC. 83 
 
 Such a fallacy may have been the less perceived, as 
 most of the popular governments of antiquity were of 
 See the democratic species; and even in modern 
 
 No. 88. 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 concentered, 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 func- 
 tions demand, and will include no greater number than 
 can join in those functions; so the natural limit of a 
 republic is that distance from the center which will 
 barely allow the representatives to meet as often as may 
 be necessary for the administration of public affairs. 
 Can it be said that the limits of the United States exceed 
 this distance? It will not be said by those who recollect 
 that the Atlantic coast is the longest side of the Union, 
 that during the term of thirteen years the representatives 
 of fhe States have been almost continually assembled, 
 and that the members from the most distant States are 
 not chargeable with greater intermissions of attendance 
 
 ' It would be difficult to state more clearly than has been done by 
 John Fiske, in the first chapter of his " Beginnings of New England," 
 the history of representative government. Briefly, he outlines what he 
 terms: ist, the Oriental idea, or "conquest without incorporation"; 
 2d, the Roman idea, or " conquest with incorporation, but without 
 representation " ; and 3d, the Teutonic or English idea, in which repre- 
 sentation was an acknowledged right. — Editor. 
 
§4 DIMENSIONS OF UNITED STATES. [No. 14 
 
 than those from the States in the neighborhood of Con- 
 gress. 
 
 That we may form a juster estimate with regard to this interest- 
 ing 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 31 degrees, on the west the 
 Mississippi, and on the north an irregular line, running in some 
 instances beyond the 45th degree, in others falling as low as the 
 42d. The southern shore of Lake Erie lies below that latitude. 
 Computing the distance between the 31st and 45th degrees, it 
 amounts to 973 common miles ; computing it from 31 to 42 
 degrees to 764^^ miles. Taking the mean for the distance, the 
 amount will be 868j^ miles. The mean distance from the Atlantic 
 to the Mississippi does not probably exceed 750 miles. On a com- 
 parison 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 assem- 
 bled ; or than Poland before the late dismemberment, where another 
 national diet was the depository of the supreme power. Passing 
 by France and Spain, we find that in Great Britain, inferior as it 
 may be in size, the representatives of the northern extremity of the 
 island have as far to travel to the national council as will be 
 required of those of the most remote parts of the Union. 
 
 Favorable as this view of the subject may be, some 
 observations remain which will place it in a light still 
 more satisfactory. 
 
 In the first place it is to be remembered that the gen- 
 eral government is not to be charged with the whole 
 power of making and administering laws. Its jurisdic- 
 tion is limited to certain enumerated objects, which con- 
 cern all the members of the republic, but which are not 
 to be attained by the separate provisions of any. The 
 subordinate governments, which can extend their care to 
 all those other objects which can be separately provided 
 for, will retain their due authority and activity. Were it 
 proposed by the plan of the Convention to abolish the 
 governments of the particular States, its adversaries 
 would have some ground for their objection; though it 
 would not be difficult to show that if they were abolished 
 the general government would be compelled, by the 
 
Madison] EVENTUAL GROWTH OF UNION. 85 
 
 principle of self-preservation, to reinstate them in their 
 proper jurisdiction. 
 
 A second observation to be made is that the immedi- 
 ate object of the federal Constitution is to secure the 
 union of the thirteen primitive States, which we know to 
 be practicable; and to add to them such other States as 
 may arise in their own bosoms, or in their neighbor- 
 hoods, which we cannot doubt to be equally practicable. 
 The arrangements that may be necessary for those 
 angles and fractions of our territory which lie on our 
 northwestern frontier must be left to those whom 
 further discoveries and experience will render more 
 equal to the task. 
 
 Let it be remarked, in the third place, that the inter- 
 course throughout the Union will be facilitated by new 
 improvements. Roads will everywhere be shortened, 
 and kept in better order; accommodations for travelers 
 will be multiplied and meliorated; an interior navigation 
 on our eastern side will be opened throughout, or nearly 
 throughout, the whole extent of the thirteen States. 
 The communication between the Western and Atlantic 
 districts, and between different parts of each, will be 
 rendered more and more easy by those numerous canals 
 with which the beneficence of nature has intersected our 
 country, and which art finds it so little difficult to connect 
 and complete. 
 
 A fourth and still more important consideration is 
 that, as almost every State will, on one side or other, be 
 a frontier, and will thus find, in a regard to its safety, an 
 inducement to make some sacrifices for the sake of the 
 general protection; so the States which lie at the greatest 
 distance from the heart of the Union, and which, of 
 course, may partake least of the ordinary circulation of 
 its benefits, will be at the same time immediately contig- 
 uous to foreign nations, and will consequently stand, on 
 particular occasions, in greatest need of its strength and 
 resources. It may be inconvenient for Georgia, or the 
 States forming our western or northeastern borders, to 
 send their representatives to the seat of government; 
 
86 DISUNION REPROBATED. [No. 14 
 
 but they would find it more so to struggle alone against 
 an invading enemy, or even to support alone the whole 
 expense of those precautions which may be dictated by 
 the neighborhood of continual danger. If they should 
 derive less benefit, therefore, from the Union in some 
 respects than the less distant States, they will derive 
 greater benefit from it in other respects, and thus the 
 proper equilibrium will be maintained throughout. 
 
 I submit to you, my fellow-citizens, these considerations, in full 
 confidence that the good sense which has so often marked your 
 decisions will allow them their due weight and effect ; and that you 
 will never suffer difficulties, however formidable in appearance, or 
 however fashionable the error on which they may be founded, to 
 drive you into the gloomy and perilous scene into which the advo- 
 cates 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 petulantly tells you that 
 the form of government recommended for your adoption is a 
 novelty in the political world ; that it has never yet had a place in 
 the theories of the wildest projectors ; that it rashly attempts 
 what it is impossible to accomplish. No, my countrymen, shut 
 your ears against this unhallowed language. Shut your hearts 
 against the poison which it conveys ; the kindred blood which flows 
 in the veins of American citizens, the mingled blood which they 
 have shed in defense of their sacred rights, consecrate their 
 Union, and excite horror at the idea of their becoming aliens, 
 rivals, enemies. And if novelties are to be shunned, believe me, 
 the most alarming of all novelties, the most wild of all projects, the 
 most rash of all attempts, is that of rending us in pieces, in order 
 to preserve our liberties and promote our happiness. But why is 
 the experiment of an extended republic to be rejected, merely 
 because it may comprise what is new .' Is it not the glory of the 
 people of America, that, whilst they have paid a decent regard to 
 the opinions of former times and other nations, they have not 
 suffered a blind veneration for antiquity, for custom, or for names, 
 to overrule the suggestions of their own good sense, the knowledge 
 of their own situation, and the lessons of their own experience ? 
 To this manly spirit, posterity will be indebted for the possession, 
 
Madison] RESULT OF THE REVOLUTION. 87 
 
 and the world for the example, of the numerous innovations dis- 
 played on the American theater, in favor of private rights and 
 public happines?. Had no important step been taken by the 
 leaders of the Revolution for which a precedent could not be dis- 
 covered, no government established of which an exact model did 
 not present itself, the people of the United States might, at this 
 moment, have been numbered among the melancholy victims 
 of misguided councils, must at best have been laboring under the 
 weight of some of those forms which have crushed the liberties of 
 the rest of mankind. Happily for America, happily, we trust, for 
 the whole human race, they pursued a new and more noble course. 
 They accomplished a revolution which has no parallel in the annals 
 of human society. They reared the fabrics of governments which 
 have no model on the face of the globe. They formed the design 
 of a great Confederacy, which it is incumbent on their successors 
 to improve and perpetuate. If their works betray imperfections, 
 we wonder at the fewness of them. If they erred most in the 
 structure of the Union, this was the work most difficult to be 
 executed ; this is the work which has been new modeled by the act 
 of your Convention, and it is that act on which you are now to 
 deliberate and to decide. Publius. 
 
 No. 15* (/«!/«/>««(/««< /OT?-«a/, December I, 1787.) Hamilton. 
 
 DEFECTS OF THE PRESENT CONFEDERA- 
 TION IN ITS DEPENDENCE ON THE STATE 
 GOVERNMENTS. 
 
 The insufficiency of the confederation a self-evident truth — Sketch of 
 existing national humiliation — Contradictory conduct of opposers of the 
 constitution — Necessity of a government that shall act on individuals — A 
 government acting on the state governments nothing' but an alliance — 
 Epidemic rage in Europe for leagues — A league versus a confederate 
 government in America — Distinction between a government acting on a 
 state and one acting on individuals — Common interest ineffectual to 
 obtain obedience to the Union — Origin of government — Centrifugal ten- 
 dency of all confederacies — National laws will not be enforced by state 
 governments — Various action of the thirteen states — Impotence of the 
 Congress — Example of the various states. 
 
 To the People of the State of New York: 
 
 In the course of the preceding papers I have endeavored, my 
 fellow-citizens, to place before you in a clear and convincing light. 
 
88 CONFEDERA TION INSUFFICIENT. [No. 15 
 
 the importance of Union to your political safety and happiness. I 
 have unfolded to you a complication of dangers to which you 
 would be exposed, should you permit that sacred knot which binds 
 the people of America together to be severed or dissolved by 
 ambition or by avarice, by jealousy or by misrepresentation. In 
 the sequel of the inquiry through which I propose to accompany 
 you, the truths intended to be inculcated will receive further con- 
 firmation from facts and arguments hitherto unnoticed. If the 
 road over which you will still have to pass should in some places 
 appear to you tedious or irksome, you will recollect that you are in 
 quest of information on a subject the most momentous which can 
 engage the attention of a free people, that the field through which 
 you have to travel is in itself spacious, and that the difficulties of 
 the journey have been unnecessarily increased by the mazes with 
 which sophistry has beset the way. It will be my aim to remove 
 the obstacles from your progress in as compendious a manner as it 
 can be done, without sacrificing utility to dispatch. , 
 
 In pursuance of the plan which I have laid down for 
 the discussion of the subject, the point next in order to 
 be examined is the " insufificiency of the present Con- 
 federation to the preservation of the Union." It may 
 perhaps be asked what need there is of reasoning or proof 
 to illustrate a position which is not either controverted or 
 doubted, to which the understandings and feelings of all 
 classes of men assent, and which in substance is admitted 
 by the opponents as well as by the friends of the new 
 Constitution. It must in truth be acknowledged that, 
 however these may differ in other respects, they in 
 general appear to harmonize in this sentiment, at least, 
 that there are material imperfections in our national sys- 
 tem,, and that something is necessary to be done to 
 rescue us from impending anarchy. The facts that sup- 
 port 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 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. 
 
Hamilton] NATIONAL HUMILIATION. 89 
 
 We may indeed with propriety be said to have reached almost 
 the last stage of national humiliation. There is scarcely any- 
 thing that can wound the pride or degrade the character of 
 an independent nation which we do not experience. Are there 
 engagements to the performance of which we are held by every tie 
 respectable among men } These are the subjects of constant and 
 unblushing violation. Do we owe debts to foreigners and to .our 
 own citizens contracted in a time of imminent peril for the 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 stipulations, ought long since to 
 have been surrendered .' These are still retained, to the prejudice 
 of our interests, not less than of our rights. Are we in a condition 
 to resent or to repel the aggression ? We have neither troops, nor 
 treasury, nor government.* Are we even in a condition to remon- 
 strate with dignity.? The just imputations on our own faith, in 
 respect to the same treaty, ought first to be removed. Are we 
 entitled by nature and compact to a free participation in the navi- 
 gation of the Mississippi? Spain excludes us from it. Is public 
 credit an indispensable resource in time of public danger? We 
 seem to have abandoned its cause as desperate and irretrievable. 
 Is commerce of importance to national wealth ? Ours is at the 
 lowest point of declension. Is respectability in the eyes of foreign 
 powers a safeguard against foreign encroachments ? The 
 imbecility of our government even forbids them to treat with us. 
 Our ambassadors abroad are the mere pageants of mimic 
 sovereignty. Is a violent and unnatural decrease in the value 
 of land a symptom of national distress ? The price of improved 
 land in most parts of the country is much lower than can be 
 accounted for by the quantity of waste land at market, and can 
 only be fully explained by that want of private and public confi- 
 dence, which is so alarmingly prevalent among all ranks, and 
 which has a direct tendency to depreciate property of every kind. 
 Is private credit the friend and patron of industry? That most 
 useful kind which relates to borrowing and lending is reduced 
 within the narrowest limits, and this still more from an opinion of 
 insecurity than from the scarcity of money. To shorten an 
 enumeration of particulars which can afford neither pleasure nor 
 instruction, it may in general be demanded, what indication is there 
 of national disorder, poverty, and insignificance that could befall a 
 community so peculiarly blessed with natural advantages as we 
 
 * " I mean for the Union."— Publius. 
 
90 IMPERIUM IN IMPERIO. [Ko. 15 
 
 are, which does not form a part of the dark catalogue of our public 
 misfortunes ? 
 
 This is the melancholy situation to which we trave been brought 
 by those very maxims and councils which would now deter us 
 from adopting the proposed Constitution ; and which, not content 
 with having conducted us to the brink of a precipice, seem resolved 
 to plunge us into the abyss that awaits us below. Here, my 
 countrymen, impelled by every motive that ought to influence an 
 enlightened people, let us make a firm stand for our safety, our 
 tranquillity, our dignity, our reputation. Let us at last break the 
 fatal charm which has too long seduced us from the paths of 
 felicity and prosperity. 
 
 It is true, as has been before observed, that facts, too 
 stubborn to be resisted, have produced a species of 
 general assent to the abstract proposition that there 
 exist material defects in our national system; but the 
 usefulness of the concession, on the part of the old 
 adversaries of federal measures, is destroyed by a stren- 
 uous opposition to a remedy, upon the only principles 
 that can give it a chance of success. While they admit 
 that the government of the United States is destitute of 
 energy, they contend against conferring upon it those 
 powers which are requisite to supply that energy. 
 They seem still to aim at things repugnant and 
 irreconcilable; at. an augmentation of federal authority, 
 without a diminution of State authority; at sovereignty 
 in the Union, and complete independence in the mem- 
 bers. They still, in fine, seem to cherish with blind 
 devotion the political monster of an imperium in imperio. 
 This renders a full display of the principal defects of the 
 Confederation necessary, in order to show that the evils 
 we experience do not proceed from minute or partial im- 
 perfections, but from fundamental errors in the structure 
 of the building, which cannot be amended otherwise than 
 by an alteration in the first principles and main pillars of 
 the fabric. 
 
 The great and radical vice in the construction of the 
 existing Confederation is in the principle of LEGISLA- 
 TION for STATES or GOVERNMENTS, in their COR- 
 PORATE or COLLECTIVE CAPACITIES, and as 
 
Hamilton] ALLIANCES BY TREATY. 91 
 
 contradistinguished from the INDIVIDUALS of which 
 they consist. Though this principle does not run through 
 all the powers delegated to the Union, yet it pervades 
 and governs those on which the efficacy of the rest 
 depends. Except as to the rule of apportionment, the 
 United States has an indefinite discretion to make 
 requisitions for men and money; but they have no 
 authority to raise either by regulations extending to the 
 individual citizens of America. The consequence of this 
 is that, though in theory their resolutions concerning 
 those objects are laws constitutionally binding on the 
 members of the Union, yet in practice they are mere 
 recommendations which the States observe or disregard 
 at their option. 
 
 It is a singular instance of the capriciousness of the 
 human mind that, after all the admonitions we have had 
 from experience on this head, there should still be found 
 men who object to the new Constitution for deviating 
 from a principle which has been found the bane of the 
 old, and which is in itself evidently incompatible with 
 the idea of government; a principle, in short, which, if 
 it is to be executed at all, must substitute the violent and 
 sanguinary agency of the sword for the mild influence of 
 the magistracy. 
 
 There is nothing absurd or impracticable in the idea of 
 a league or alliance between independent nations for 
 certain defined purposes precisely stated in a treaty 
 regulating all the details of time, place, circumstance, 
 and quantity; leaving nothing to future discretion; and 
 depending for its execution on the good faith of the 
 parties. Compacts of this kind exist among all civilized 
 nations, subject to the usual vicissitudes of peace and 
 war, of observance and non-observance, as the interests 
 or passions of the contracting powers dictate. In the 
 early part of the present century there was a 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 
 
92 NATIONAL AUTHORITY OVER CITIZENS. [No. 16 
 
 world, all the resources of negotiation were exhausted, 
 and triple and quadruple alliances were formed; but they 
 were scarcely formed before they were broken, giving an 
 instructive but afflicting lesson to mankind, how little 
 dependence is to be placed on treaties which have no 
 other sanction than the obligations of good faith, and 
 which oppose general considerations of peace and justice 
 to the impulse of any immediate interest or passion.' 
 
 If the particular States in this country are disposed to 
 stand in a similar relation to each other, and to drop the 
 project of a general discretionary superintendence, 
 the scheme would indeed be pernicious, and would entail 
 upon us all the mischiefs which have been enumerated 
 under the first head ; but it would have the merit of being, 
 at least, consistent and practicable. Abandoning all 
 views towards a confederate government, this would bring 
 us to a simple alliance offensive and defensive; and would 
 place us in a situation to be alternative friends and 
 enemies of each other, as our mutual jealousies and rival- 
 ships, nourished by the intrigues of foreign nations, 
 should prescribe to us. 
 
 But if we are unwilling to be placed in this perilous 
 situation ; if we still will adhere to the design of a national 
 government, or, which is the same thing, of a superin- 
 tending 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 govern- 
 ment; we must extend the authority of the Union to the 
 persons of the citizens — the only proper objects of 
 government. 
 
 Government implies the power of making laws. It is 
 essential to the idea of a law that it be attended with a 
 sanction; or, in other words, a penalty or punishment for 
 
 ' An extreme example of the value of treaties is furnished in the recent 
 revelations of Bismarck, by which it was shown that the German Empire, 
 while bound by the Dreibund to Austria and Italy, had at the same time 
 a secret treaty with Russia, v/hich nulUBed the most essential provisions 
 of the compact. — EDITOR. 
 
Hamilton] ENFORCEMENT OF LA WS. 93 
 
 disobedience. If there be no penalty annexed to dis- 
 obedience, the resolutions or commands which pretend 
 to be laws will, in fact, amount to nothing more than 
 advice or recommendation. This penalty, whatever it 
 may be, can only be inflicted in two ways: by the agency 
 of the courts and ministers of justice, or by military force ; 
 by the coercion of the magistracy, or by the coercion 
 of arms. The first kind can evidently apply only to men; 
 the last kind must, of necessity, be employed against 
 bodies politic, or communities, or States. It is evident 
 that there is no process of a court by which the observ- 
 ance of the laws can, in the last resort, be enforced. 
 Sentences may be denounced against them for violations 
 of their duty; but these sentences can only be carried 
 into execution by the sword. In an association where 
 the general authority is confined to the collective bodies 
 of the communities that compose it, every breach of the 
 laws must involve a state of war; and military execution 
 must become the only instrument of civil obedience. 
 Such a state of things can certainly not deserve the name 
 of government, nor would any prudent man choose to 
 commit his happiness to it. 
 
 There was a time when we were told that breaches by 
 the States of the regulations of the federal authority 
 were not to be expected; that a sense of common interest 
 would preside over the conduct of the respective mem- 
 bers, and would beget a full compliance with all the con- 
 stitutional 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 in- 
 ducements 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 disin- 
 
94 CENTRIFUGAL TENDENCIES. [No. 16 
 
 terestedness 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 deliber- 
 ations of all bodies of men, will often hurry the persons 
 of whom they are composed into improprieties and ex- 
 cesses for which they would blush in a private capacity. 
 
 In addition to all this there is in the nature of sovereign 
 power an impatience of control, that disposes those who 
 are invested with the exercise of it to look with an evil 
 eye upon all external attempts to restrain or direct its 
 operations. From this spirit it happens that, in every 
 political association which is formed upon the principle 
 of uniting in a common interest a number of lesser 
 sovereignties, there will be found a kind of eccentric 
 tendency in the subordinate or inferior orbs, by the 
 operation of which there will be a perpetual effort in each 
 to fly off from the common center. This tendency is not 
 difficult to be accounted for. It has its origin in the 
 love of power. Power controlled or abridged is almost 
 always the rival and enemy of that power by which it is 
 controlled or abridged. This simple proposition will 
 teach us how little reason there is to expect that the 
 persons intrusted with the administration of the affairs 
 of the particular members of a confederacy will at all 
 times be ready, with perfect good-humor and an unbiased 
 regard to the public weal, to execute the resolutions or 
 decrees of the general authority. The reverse of this 
 results from the constitution of human nature. 
 
 If, therefore, the measures of the Confederacy cannot 
 be executed without the intervention of the particular 
 administrations, there will be little prospect of their 
 being executed at all. The rulers of the respective 
 members, whether they have a constitutional right to do 
 it or not, will undertake to judge of the propriety of the 
 measures themselves. They will consider the conformity 
 
Hamilton] STA TES DELA Y LEGISLA TION. 95 
 
 of the thing proposed or required to their immediate 
 interests or aims; the momentary conveniences or in- 
 conveniences that would attend its adoption. All this 
 will be done; and in a spirit of interested and suspicious 
 scrutiny, without that knowledge of national circum- 
 stances 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 de- 
 cision. The same process must be repeated in every 
 member of which the body is constituted; and the execu- 
 tion 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 co-operate in the same views and 
 pursuits. 
 
 In our case, the concurrence of thirteen distinct sovereign wills 
 is requisite, under the Confederation, to the complete execution of 
 every important measure that proceeds from the Union. It has 
 happened as was to have been foreseen. The measures of the 
 Union have not been executed; the delinquencies of the States 
 have, step by step, matured themselves to an extreme, which has 
 at length arrested all the wheels of the national government and 
 brought them to an awful stand. Congress at this time scarcely 
 possesses the means of keeping up the forms of administration, till 
 the States can have time to agree upon a more substantial substi- 
 tute 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 dispropor- 
 tionate degrees of compliance with the requisitions of the Union. 
 The greater deficiencies of some States furnished the pretext of 
 example and the temptation of interest to the complying or to the 
 least delinquent States. Why should we do more in proportion 
 than those who are embarked with us in the same political voyage? 
 Why should we consent to bear more than our proper share of the 
 
96 CONPEDERACIES OP ANTIQUITY. [ifo, 16 
 
 common burden ? These were suggestions which human selfish- 
 ness could not withstand, and which even speculative men, who 
 looked forward to remote consequences, could not, without hesita- 
 tion, 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. 
 
 Publics. 
 
 No. l6. iNelxi York Packet, December, 4, 1787.) Hamilton. 
 
 DEFECT OF THE CONFEDERATION IN ITS 
 INABILITY TO COERCE. 
 
 The only constitutional remedy against delinquent states is force — 
 Impossibility of coercion — Sympathy between the states — Probable appeal 
 of states to foreign nations — A probable dissolution of the Union — 
 Unlikelihood of states supporting a national government — Certainty of 
 degeneration into a military despotism — Impossibility of coercing the larger 
 states — Military coercion <* signal for civil war — The new government 
 must extend to citizens — State resistance of national law — The distinction 
 between non-compliance and active resistance — The new constitution puts 
 state resistance in its true light — Employment of state agencies by national 
 government — No form of government safe from revolution. 
 
 To the People of the State of New York: 
 
 The tendency of the principle of legislation for States, 
 or communities, in their political capacities, as it has 
 been exemplified by the experiment we have made of it, 
 is equally attested by the events which have befallen all 
 other governments of the confederate kind, of which we 
 have any account, in exact proportion to its prevalence 
 in those systems. The confirmations of this fact will be 
 worthy of a distinct and particular examination. I shall 
 content myself with barely observing here that, of all 
 See the confederacies of antiquity which history 
 
 No. 18. has handed down to us, the Lycian and Ach^an 
 
 leagues, as far as there remain vestiges of them, appear 
 to have been most free from the fetters of that mistaken 
 principle, and were accordingly those which have best 
 
Hamiltonl COERCION OF STATES DIFFICULT. 97 
 
 deserved, and have most liberally received, the applaud- 
 ing suffrages of political writers. 
 
 This exceptionable principle may, as truly as emphat- 
 ically, be styled the parent of anarchy : it has been seen 
 that delinquencies in the members of the Union are its 
 natural and necessary offspring; and that, whenever they 
 happen, the only constitutional remedy is force, and the 
 immediate effect of the use of it, civil war. 
 
 It remains to. inquire how far so odious an engine of 
 government, in its application to us, would even be capa- 
 ble of answering its end. If there should not be a large 
 army constantly at the disposal of the national govern- 
 ment, 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 infrac- 
 tions of a league, in which the strongest combination 
 would be most likely to prevail, whether it consisted of 
 those who supported or of those who resisted the general 
 authority. It would rarely happen that the delinquency 
 to be redressed would be confined to a single member, 
 and if there were more than one who had neglected their 
 duty, similarity of situation would induce them to unite 
 for common defense. Independent of this motive of 
 sympathy, if a large and influential State should happen 
 to be the aggressing member, it would commonly have 
 weight enough with its neighbors to win over some of 
 them as associates to its cause. Specious arguments of 
 danger to the common liberty could easily be contrived; 
 plausible excuses for the deficiencies of the party could, 
 without difficulty, be invented to alarm the apprehensions, 
 inflame the passions, and conciliate the good-will, even 
 of those States which were not chargeable with any 
 violation or omission of duty. This would be the more 
 likely to take place as the delinquencies of the larger 
 members might be expected sometimes to proceed from 
 an ambitious premeditation in their rulers, with a view 
 to getting rid of all external control upon their designs 
 of personal aggrandizement; the better to effect which 
 it is presumable they would tamper beforehand with lead- 
 
98 UNION- NOT SUPPORTED. [No. 16 
 
 ing individuals ia 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 disin- 
 clined to encouraging the dissensions of a Confederacy 
 from the firm union of which they had so much to fear. 
 See note to When the sword is once drawn, the passions 
 No. 4. of men observe no bounds of moderation. 
 
 The suggestions of wounded pride, the instigations of 
 irritated resentment, would be apt to carry the States, 
 against which the arms of the Union were exerted, to 
 any extremes necessary to avenge the affront or to 
 avoid the disgrace of submission. The first war of this 
 kind would probably terminate in a dissolution of the 
 Union. 
 
 This may be considered as the violent death of the 
 Confederacy. Its more natural death is what we now 
 seem to be on the point of experiencing, if the federal 
 system be not speedily renovated in a more substantial 
 form. It is not probable, considering the genius of this 
 country, that the complying States would often be in- 
 clined 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 put- 
 ing themselves upon an equal footing with the delinquent 
 members by an imitation of their example. And the 
 guilt of all would thus become the security of all. Our 
 past experience has exhibited the operation of this spirit 
 in its full light. There would, in fact, be an insuperable 
 difficulty in ascertaining when force could with propriety 
 be employed. In the article of pecuniary contribution, 
 which would be the most usual source of delinquency, it 
 would often be impossible to decide whether it had pro- 
 ceded from disinclination or inability. The pretense of 
 the latter would always be at hand. And the case must 
 be very flagrant in which its fallacy could be detected 
 with sufficient certainty to justify the harsh expedient of 
 compulsion. It is easy to see that this problem alone, 
 as often as it should occur, would open a wide field for 
 the exercise of factious views, of partiality, and of op- 
 
Hamilton] LARGER STATES. 99 
 
 pression, 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 vi^hich could 
 only be kept in motion by the instrumentality of a large 
 army, continually on foot to execute the ordinary requisi- 
 tions 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 de- 
 generate into a military despotism; but it will be found 
 in every light impracticable. The resources of the 
 Union would not be equal to the maintenance of an 
 army considerable enough to confine the larger States 
 within the limits of their duty; nor would the means ever 
 be furnished of forming such an army in the first in- 
 stance.' Whoever considers the populousness and 
 strength of several of these States singly at the present 
 juncture, and looks forward to what they will become, 
 even at the distance of half a century, will at once dis- 
 miss as idle and visionary any scheme which aims at reg- 
 ulating their movements by laws to operate upon them 
 in their collective capacities, and to be executed by a 
 coercion applicable to them in the same capacities, » A 
 project of this kind is little less romantic than the mon- 
 ster-taming spirit which is attributed to the fabulous 
 heroes and demi-gods of antiquity. 
 
 Even in those confederacies which have been com- 
 posed of members smaller than many of our counties, 
 the principle of legislation for sovereign States, sup- 
 ported by military coercion, has never been fotjind ef- 
 fectual." It has rarely been attempted to be employed 
 
 ' Yet Saxony and Bavaria were virtually forced to become members of 
 the German Empire, and to this day it is questionable whether, if the 
 head of that Empire, Prussia, were successfully attacked by Russia or 
 France, Bavaria would not once again unite itself with Austria. — Editor. 
 
 '^ A case not altogether unlike this condition is to be found in Ireland, 
 where troops and a large royal constabulary have with difficulty been 
 able nominally to maintain the laws made for it by Parliament in the 
 last three hundred years. — Editor. 
 
100 NATIOMAL citizen-ship. [No. 16 
 
 but against the weaker members; and in most instances 
 attempts to coerce the refractory and disobedient have 
 been the signals of bloody wars, in which one half of the 
 confederacy has displayed its banners against the other 
 half. 
 
 The result of these observations to an intelligent mind 
 must be clearly this, that if it be possible at any rate to 
 construct a federal government capable of regulating the 
 common concerns and preserving the general tranquillity, 
 it must be founded, as to the objects committed to its 
 care, upon the reverse of the principle contended for by 
 the opponents of the proposed Constitution. It must 
 carry its agency to the persons of the citizens. It must 
 stand in need of no intermediate legislations; but 
 must itself be empowered to employ the arm of the ordi- 
 nary magistrate to execute its own resolutions. The maj- 
 esty 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 in- 
 dividuals; 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 
 havp 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 re- 
 proached. 
 
 The plausibility of this objection will vanish the mo- 
 ment we advert to the essential difference between a 
 mere non-compliance and a direct and active resist- 
 ance.' If the interposition of the State legislatures be 
 
 ' This distinction has been justified to a remarkable degree in history 
 Before the adoption of the federal constitution the states by merely pas- 
 
Hamilton] EXECUTION OP LA WS. 161 
 
 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 dis- 
 guised under affected but unsubstantial provisions, so as 
 not to appear, and of course -not to excite any alarm in 
 the people for the safety of the Constitution. The State 
 leaders may even make a merit of their surreptitious in- 
 vasions of it on the ground of some temporary conveni- 
 ence, exemption, or advantage. 
 
 But if the execution of the laws of the national govern- 
 ment should not require the intervention of the State 
 legislatures, if they were to pass into immediate opera- 
 
 sive action nullified such national laws and even treaties, as they chose ; 
 but with the creation of a government acting directly on the people, and 
 therefore requiring active resistance, the attempts to resist the national 
 on the part of the state governments, have been few and have seldom 
 been pushed to open resistance. In the Olmstead case (i8og) the 
 governor of Pennsylvania ordered out the militia, and successfully re- 
 sisted a process of the Supreme Court, and in the Creek and Cherokee 
 troubles (1825-1830), the state of Georgia was equally successful in op- 
 posing by force the Court's decrees. It is to be noted, however, that 
 both these nullifications were directed against the judicial department, 
 which necessarily is hampered in its powers by its being compelled to 
 rely upon the officials of another department for an actual enforce- 
 ment. No attempt of a state government or convention to nullify a law, 
 which was the duty of the executive department to execute, has ever suc- 
 ceeded. In 1798, though Virginia went to the length of purchasing 
 arms, her resistance as a political body to the Alien and Sedition laws 
 was limited to the passing of legislative resolutions ; and though in 1832 
 South Carolina actually embodied troops, the obnoxious tariff laws were 
 never for a moment suspended. A third type of nullification, — the re- 
 sistance to United States laws, not through the intervention of the state 
 governments, but through popular sentiment, — has succeeded best. For 
 three years the excise law of 1 791 was successfully resisted in Western 
 Pennsylvania. (See Hamilton's Works, iii. 575.) The embargo laws 
 of 1808 were successfully resisted in New England, because the local 
 courts and juries would not convict those who broke the law. The Fugi- 
 tive Slave law was largely nullified in the Northern states, and the at- 
 tempted enforcement of it must eventually have been abandoned, had 
 the Civil War not intervened. The same difficulty exists to-day in the 
 " moonshine " whisky sections of the South, where it is almost impos- 
 sible to secure convictions under the national revenue laws, from juries 
 of the locality. The most remarkable incident, however, is furnished by 
 the state of California, where the pressure of public opinion during the 
 Civil War was so strong that the United States greenbacks were never al- 
 lowed to circulate, despite their being a legal tender, that state remain- 
 ing on a gold basis throughout the war; and to this day, though the paper 
 money encounters no resistance, the use of it is very uncommon.— Editor. 
 
102 CONTROL OF SEDITION. Wo. 16 
 
 tion upon the citizens themselves, the particular govern- 
 ments could not interrupt their progress without an open 
 and violent exertion of an unconstitutional power. No 
 omissions nor evasions would answer the end. They 
 would be obliged to act, and* in such a manner as would 
 leave no doubt that they had encroached on the national 
 rights. An experiment of this nature would always be 
 hazardous in the face of a constitution in any degree 
 competent to its own defense, and of a people enlight- 
 ened enough to distinguish between a legal exercise and 
 an illegal usurpation of authority. The success of it 
 would require not merely a factious majority in the legis- 
 lature, but the concurrence of the courts of justice and 
 of the body of the people. If the judges were not em- 
 barked in a conspiracy with the legislature, they would 
 pronounce the resolutions of such a majority to be con- 
 trary to the supreme law of the land, unconstitutional 
 and void. If the people were not tainted with the spirit 
 of their State representatives, they, as the natural guard- 
 ians of the Constitution, would throw their weight into 
 the national scale and give it a decided preponderancy in 
 the contest. Attempts of this kind would not often be 
 made with levity or rashness, because they could seldom 
 be made without danger to the authors, unless in cases 
 of a tyrannical exercise of the federal authority. 
 
 If opposition to the national government should arise 
 from the disorderly conduct of refractory or seditious in- 
 dividuals, it could be overcome by the same means which 
 are daily employed against the same evil under the State 
 governments. The magistracy, being equally the minis- 
 ters of the law of the land, from whatever source it 
 might emanate, would doubtless be as ready to guard the 
 national as the local regulations from the inroads of 
 private licentiousness. As to those partial commotions 
 and insurrections which sometimes disquiet society, from 
 the intrigues of an inconsiderable faction, or from sudden 
 or occasional ill-humors that do not infect the great body 
 of the community, the general government could com- 
 mand more extensive resources for the suppression of 
 
Hamilton] LEGISLATION FOR INDIVIDUALS. 103 
 
 disturbances of that kind than would be in the power of 
 any single member. And as those mortal feuds which, 
 in certain conjunctures, spread a conflagration through a 
 whole nation, or through a very large proportion of it, 
 proceeding either from weighty causes of discontent given 
 by the government or from the contagion of some violent 
 popular paroxysm, they do not fall within any ordinary 
 rules of calculation. When they happen, they commonly 
 amount to revolutions and dismemberments of empire. 
 No form of government can always either avoid or con- 
 trol them. It is in vain to hope to guard against events 
 too mighty for human foresight or precaution, and it 
 would be idle to object to a government because it could 
 not perform impossibilities. 
 
 PUBLIUS. 
 
 No. 17- (/K*/i?«afe»;yOT<»-Ka/, December 5, 1787.) Hamilton. 
 
 REFUTATION OF THE ARGUMENT THAT A 
 GOVERNMENT BASED ON INDIVIDUALS WILL 
 BE TOO POWERFUL. 
 
 Unlikelihood that the national government will absorb the residuary 
 authority — Objects of national ambition — Local concerns not alluring 
 objects of general jurisdiction — Easier for the states to encroach on the 
 national authorities — Greater popularity of state government — Tendency 
 of mankind to neighborhood attachment — Local justice the most attractive 
 source of popular obedience and attachment — The national government 
 less immediately connected with the people — Example in feudal times — 
 The struggle between king and baron — Example of clanship in Scotland 
 — State governments compared with feudal baronies — Local governments 
 certain to possess the confidence of the people. 
 
 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 per- 
 haps 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 
 
104 NO ENCROACHMENT ON STATES. [No. 17 
 
 authorities which it might be judged proper to leave with 
 the States for local purposes. Allowing the utmost lati- 
 tude to the love of power which any reasonable man can 
 require, I confess I am at a loss to discover what tempta- 
 tion the persons intrusted with the administration of the 
 general government could ever feel to divest the States 
 of the authorities of that description. The regulation of 
 the mere domestic police of a State appears to me to hold 
 out slender allurements to ambition. Commerce, finance,, 
 negotiation, and war seem to comprehend all the objects 
 which have charms for minds governed by that passion; 
 and all the powers necessary to those objects ought, in 
 the first instance, to be lodged in the national depository. 
 The administration of private justice between the citi- 
 zens 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 legis- 
 lation — can never be desirable cares of a general jurisdic- 
 tion. 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 impor- 
 tance, 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 repre- 
 sentatives, or, in other words, the people of the several 
 States, would control the indulgenee of so extravagant an 
 appetite. It will always be far more easy for the State 
 See governments to encroach upon the national 
 
 No. 45. authorities, than for the national government 
 
 to encroach upon the State authorities. The proof of 
 this proposition turns upon the greater degree of influ- 
 
 ' Hamilton scarcely foresaw the creation of a Departnient of Agri- 
 culture. — Editor. 
 
Hamilton] LOCAL ATTACHMENT. 105 
 
 ence which the State governments, if they administer 
 their affairs with uprightness and prudence, will gener- 
 ally possess over the people; a circumstance which at the 
 same time teaches us that there is an inherent and 
 intrinsic weakness in all federal constitutions, and that too 
 much pains cannot be taken in their organization to give 
 them all the force which is compatible with the principles 
 of liberty. 
 
 The superiority of influence in favor of the particular 
 governments would result partly from the diffusive con- 
 struction of the national government, but chiefly from 
 the nature of the objects to which the attention of the 
 State administrations would be directed. 
 
 It is a known fact in human nature that its affections 
 are commonly weak in proportion to the distance or dif- 
 fusiveness of the object. Upon the same principle that 
 See a man is more attached to his family than to 
 
 Wo. 25. his neighborhood, to his neighborhood than 
 
 to the community at large, the people of each State would 
 be apt to feel a stronger bias towards their local govern- 
 ments than towards the government of the Union, unless 
 the force of that principle should be destroyed by a much 
 better administration of the latter. 
 
 This strong propensity of the human heart would find 
 powerful auxiliaries in the objects of State regulation. 
 
 The variety of more minute interests, which will neces- 
 sarily fall under the superintendence of the local adminis- 
 tations, 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 
 
io6 NATIONAL INTERESTS GENERAL. [No. 17 
 
 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 con- 
 cerns to which the sensibility of individuals is more 
 immediately awake, contributes more than any other cir- 
 cumstance to impressing upon the minds of the people 
 affection, esteem, and reverence towards the government. 
 This great cement of society, which will diffuse itself 
 almost wholly through the channels of the particular gov- 
 "ernments, independent of all other causes of influence, 
 would insure them so decided an empire over their re- 
 spective 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 exem- 
 plified 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 lan^ 
 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 sover- 
 eign within his particular demesnes. The consequences of 
 this situation were a continual opposition to authority of 
 the sovereign, and frequent wars between the great barons 
 
Hamilton] FEUDAL BARONIES. 107 
 
 or chief feudatories themselves. The power of the head 
 of the nation was commonly too weak, either to preserve 
 the public peace or to protect the people against the 
 oppressions of their immediate lords. This period of 
 European affairs is emphatically styled by historians the 
 times of feudal anarchy. 
 
 When the sovereign happened to be a man of vigorous and war- 
 like 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 suc- 
 cess 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 jus- 
 tice, preserved the fidelity and devotion of their retainers and fol- 
 lowers, the contests between them and the prince must almost 
 always have ended in their favor, and in the abridgment or sub- 
 version of the royal authority. 
 
 This is not an assertion founded merely in speculation or con- 
 jecture. Among other illustrations of its truth which might be 
 cited, Scotland will furnish a cogent example. The spirit of clan- 
 ship which was, at an early day, introduced into that kingdom, 
 uniting the nobles and their dependents by ties equivalent to those 
 of kindred, rendered the aristocracy a constant overmatch for the 
 power of the monarch, till the incorporation with England sub- 
 dued its fierce and ungovernable spirit, and reduced it within those 
 rules of subordination which a more rational and more energetic 
 system of civil polity had previously established in the latter 
 kingdom. 
 
 The separate governments in a confederacy may aptly 
 be compared with the feudal baronies ; with this advantage 
 in their favor, that, from the reasons already explained, 
 they will generally possess the confidence and good will 
 of the people, and with so important a support will be 
 able effectually to oppose all encroachments of the 
 national government. It will be well if they are not 
 
io8 GREEK CONFEDERACIES. [No. 18 
 
 able to counteract its legitimate and necessary authority. 
 The points of similitude consist in the rivalship of 
 power applicable to both, and in the concentration of 
 large portions of the strength of the community into 
 particular deposits, in one case at the disposal of indi- 
 viduals, 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 impor- 
 tant doctrine, an inattention to which has been the great 
 source of our political mistakes, and has given our jeal- 
 ousy a direction to the wrong side. This review shall 
 form the subject of some ensuing papers. 
 
 PUBLIUS. 
 
 N0.18.' (New York Packet,ntt:.^,1■,i^:) Hamilton and Madison. 
 EXAMPLES OF GREEK CONFEDERACIES. 
 
 Amphiciyonic council, its powers in history — The Acheean league. 
 
 To the People of the State of New York: 
 
 Among the confederacies of antiquity, the most considerable 
 was that of the Grecian republics associated under the Amphic- 
 ggg tyonic council. From the best accounts transmitted 
 
 No. 16. of this celebrated institution, it bore a very instruc- 
 
 ' " '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 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 the Press.' " 
 
 " The above note from the pen of Mr. Madison was written on the 
 margin of the leaf, commencing with the present number, in the copy 
 of the Federalist loaned by him to the publisher." — Note in the edition 
 of 1818. 
 
 " No. 18 is attributed to Mr. Hamilton and Mr. Madison jointly. A. 
 H. had drawn up something on the subjects of this (No. 18) and the two 
 next Nos. (ig and 20). On finding that J. M. was engaged in them with 
 larger materials, and with a view to a more precise delineation, he put 
 what he liad written into the hands of J. M. It is possible, though not 
 recollected, that something in the draught may have been incorporated 
 
H.andM.] AMPHICTYONIC COUNCIL. 109 
 
 live analogy to the present Confederation of the American 
 States.i 
 
 The members retained the character of independent and 
 sovereign states, and had equal votes in the federal council. This 
 council had a general authority to propose and resolve whatever it 
 judged necessary for the common welfare of Greece ; to declare 
 and carry on war ; to decide, in the last resort, all controversies 
 between the members ; to fine the aggressing party ; to employ 
 the whole force of the confederacy against the disobedient; to 
 admit new members. The Amphictyons were the guardians of 
 religion and of the immense riches belonging to the temple of 
 Delphos, where they had the right of jurisdiction in controversies 
 between the inhabitants and those who came to consult the oracle. 
 As a further provision for the efficacy of the federal powers, they 
 took an oath mutually to defend and protect the united cities, to 
 punish the violators of this oath, and to inflict vengeance on 
 sacrilegious despoilers of the temple. 
 
 In theory and upon paper, this apparatus of powers seems 
 amply sufficient for all general purposes. In several material 
 instances they exceed the powers enumerated in the articles of 
 confederation. The Amphictyons had in their hands the supersti- 
 tion of the times, one of the principal engines by which govern- 
 ment 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 
 
 into the numbers as printed ; but it was certainly not of a nature or 
 amount to affect the impression left on the mind of J. M., from whose 
 pen the papers went to the press, that they were of the class written by 
 him. As the historic materials of A. H., as far as they went, were 
 doubtless similar or the same with those provided by J. M., and as a 
 like application of them probably occurred to both, an impression might 
 be left on the mind of A. H. that the Nos. in question were written 
 jointly. These remarks are made as well to account for a statement to 
 that effect, if made by A. H., as in justice to J. M., who, always regard- 
 ing Ihem in a different light, had so stated them to an inquiring friend, 
 long before it was known or supposed that a different impression existed 
 anywhere." Madison's statement in paper entitled The Federalist. — 
 Editor. 
 
 ' In the " Letters and Other Writings of James Madison,'' 1865 (i. 293), 
 is printed a paper entitled ' ' Notes of Ancient and Modern Confedera- 
 cies," and from that paper the following accounts were drawn. The 
 history of the Greek confederacies is told at length in E. A. Freeman's 
 " History of Federal Government from the Foundation of the Achaian 
 League to the Disruption of the United States, " a work which, for obvious 
 reasons, was never completed. — Editor. 
 
no JEALOUSIES OF GREEK STATES. [No. 18 
 
 by deputies appointed wholly by the cities in their political capaci- 
 ties, and exercised over them In the same capacities. Hence the 
 weakness, the disorders, and finally the destruction of the con- 
 federacy. The more powerful members, instead of being kept in 
 awe and subordination, tyrannized successively over all the rest. 
 Athens, as we learn from Demosthenes, was the arbiter of Greece 
 seventy-three years. The Lacedcemonians 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 hireHngs of the 
 common enemy. The intervals of foreign war were filled up by 
 domestic vicissitudes, convulsions, and carnage. 
 
 After the conclusion of the war with Xerxes, it appears that the 
 Lacedaemonians required that a number of the cities should be 
 turned out of the confederacy for the unfaithful part they had 
 acted. The Athenians, finding that the Lacedaemonians would 
 lose fewer partisans by such a measure than themselves, and 
 would become masters of the public deliberations, vigorously 
 opposed and defeated the attempt. This piece of history proves 
 at once the inefficiency of the union, the ambition and jealousy of 
 its most powerful members, and the dependent and degraded con- 
 dition of the rest. The smaller members, though entitled by the 
 theory of their system to revolve in equal pride and majesty around 
 the common center, had become, in fact, satellites of the orbs of 
 primary magnitude. 
 
 Had the Greeks, says the Abb^ Milot, been as wise as they were 
 courageous, they would have been admonished by experience of 
 the necessity of a closer union, and would have availed themselves 
 of the peace which followed their success against the Persian arms, 
 to establish such a reformation. Instead of this obvious policy, 
 Athens and Sparta, inflated with the victories and the glory they 
 had acquired, became first rivals and then enemies, and did each 
 other infinitely more mischief than they had suffered from Xerxes. 
 Their mutual jealousies, fears, hatreds, and injui'ies 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 
 
H. andM.] ACHMAN LEAGUE. in 
 
 intei-nal dissensions, so these never fail to bring on fresh calamities 
 from abroad. The Phocians having plowed up some conse- 
 crated ground belonging to the temple of Apollo, the Amphictyonic 
 council, according to the superstition of the age, imposed a fine 
 on the sacrilegious offenders. The Phocians, being abetted by 
 Athens and Sparta, refused to submit to the decree. The Thebans, 
 with others of the cities, undertook to maintain the authority of 
 the Amphictyons, and to avenge the violated god. The latter, 
 being the weaker party, invited the assistance of Philip of Mace- 
 don, who had secretly fostered the contest. Philip gladly seized 
 the opportunity of executing the designs he had long planned 
 against the liberties of Greece. By his intrigues and bribes he 
 won over to his interests the popular leaders of several cities ; by 
 their influence and votes gained admission into the Amphictyonic 
 council ; and by his arts and his arms made himself master of the 
 confederacy. 
 
 Such were the consequences of the fallacious principle on which 
 this interesting establishment was founded. Had Greece, says a 
 judicious observer on her fate, been united by a stricter confedera- 
 tion, 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 Achffian league, as it is called, was another society of 
 Grecian republics which supplies us with valuable instruction. 
 
 The union here was far more intimate, and its organization 
 much wiser than in the preceding instance. It will accordingly 
 appear that, though not exempt from a similar catastrophe, it by no 
 means equally deserved it. 
 
 The cities composing this league retained their municipal juris- 
 diction, appointed their own officers, and enjoyed a perfect equality. 
 The senate, in which they were represented, had the • sole and 
 exclusive right of peace and war ; of sending and receiving 
 ambassadors ; of entering into treaties and alliances ; of appointing 
 a chief magistrate or praetor, as he was called, who commanded 
 their armies, and who, with the advice and consent of ten of the 
 senators, not only administered the government in the rece.ss of 
 the senate, but had a great share in its deliberations, when 
 assembled. According to the primitive constitution, there* were 
 two prsetors 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 
 
112 DISSOLUTION OF LEAGUE. \So. 18 
 
 left in uncertainty. It is said only that the cities were in a manner 
 compelled to receive the same laws and usages. When Lacedsemon 
 was brought into the league by Philopcemen, it was attended with 
 an abolition of the institutions and laws of Lycurgus, and an adop- 
 tion of those of the Achaeans. The Amphictyonic confederacy, 
 of which she had been a member, left her in the full exercise of 
 her government and her legislation. This circumstance alone 
 proves a very material difference in the genius of the two systems. 
 
 It is much to be regretted that such imperfect monuments 
 remain of this curious political fabric. Could its interior structure 
 and regular operation be ascertained, it is probable that more light 
 would be thrown by it on the science of federal government than 
 by any of the like experiments with which we are acquainted. 
 
 One important fact seems to be witnessed by all the historians 
 who take notice of Achaean affairs. It is that, as well after the 
 renovation of the league by Aratus as before its dissolution by the 
 arts of Macedon, there was infinitely more of moderation and 
 justice in the administration of its government, and less of violence 
 and sedition in the people, than were to be found in any of the 
 cities exercising singly all the prerogatives of sovereignty. The 
 Abb6 Mably, in his observations on Greece, says that the popular 
 government, which was so tempestuous elsewhere, caused no 
 disorders in the members of the Achsean republic, because it 
 was there tempered by the general authority and laws of the 
 confederacy. 
 
 We are not to conclude too hastily, however, that faction did not, 
 in a certain degree, agitate the particular cities ; much less that a 
 due subordination and harmony reigned in the general system. 
 The contrary is sufficiently displayed in the vicissitudes and fate of 
 the republic. 
 
 Whilst the Amphictyonic confederacy remained, that of the 
 Achasans, which comprehended the less important cities only, 
 linade little figure on the theater of Greece. When the former 
 became a victim to Macedon, the latter was spared by the policy 
 of Philip and Alexander. Under the successors of these princes, 
 however, a different policy prevailed. The arts of division were 
 practiced among the Achaeans. Each city was seduced into a 
 separate interest ; the union was dissolved. Some of the cities 
 fell under the tyranny of Macedonian garrisons ; others under that 
 of usurpers springing out of their own confusions. Shame and 
 oppression erelong awakened their love of liberty. A few cities 
 reunited. Their example was followed by others, as opportunities 
 were found of cutting off their tyrants. The league soon embraced 
 
H.andM.] SUBJUGATION OF ACHAT A. 113 
 
 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 confeder- 
 acy, when the jealousy and envy in Sparta and Athens, of the 
 rising glory of the Achaeans, threw a fatal damp on the enterprise. 
 The dread of the Macedonian power induced the league to court 
 the alliance of the kings of Egypt and Syria, who, as successors of 
 Alexander, were rivals of the king of Macedon. This policy was 
 defeated by Cleomenes, king of Sparta, who was led by his ambi- 
 tion to make an unprovoked attack on his neighbors, the Achaans, 
 and who, as an enemy to Macedon, had interest enough with the 
 Egyptian and Syrian princes to effect a breach of their engage- 
 ments with the league. The Achseans were now reduced to the 
 dilemma of submitting to Cleomenes, or of supplicating the aid of 
 Macedon, its former oppressor. The latter expedient was adopted. 
 The contests of the Greeks always afforded a pleasing opportunity 
 to that powerful neighbor of intermeddling in their affairs. A 
 Macedonian army quickly appeared. Cleomenes was vanquished. 
 The Achasans soon experienced, as often happens, that a victorious 
 and powerful ally is but another name for a master. All that their 
 most abject compliances could obtain from him was a toleration 
 of the exercise of their laws. Philip, who was now on the throne 
 of Macedon, soon provoked by his tyrannies fresh combinations 
 among the Greeks. The Achaeans, though weakened by internal 
 dissensions, and by the revolt of Messene, one of its members, being 
 joined by the jEtolians and Athenians, erected the standard of 
 opposition. Finding themselves, though thus supported, unequal 
 to the undertaking, they once more had recourse to the dangerous 
 expedient of introducing the succor of foreign arms. The Romans, 
 to whom the invitation was made, eagerly embraced it. Philip 
 was conquered ; Macedon subdued. A new crisis ensued to the 
 league. Dissensions broke out among its members. These the 
 Romans fostered. Callicrates and other popular leaders became 
 mercenary instruments for inveigling their countrymen. The more 
 effectually to nourish discord and disorder the Romans had, to the 
 astonishment of those who confided in their sincerity, already pro- 
 claimed 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 imbe- 
 
 * This was but another name more specious for the independence of 
 the members on the federal head.— PUBLIUS. 
 
1 14 GERMANIC BODY. Ko. 19 
 
 cility and distraction introduced, that the arms of Rome found 
 little difficulty in completing the ruin which their arts had com- 
 menced. 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 
 Achjean constitution, it emphatically illustrates the tendency of 
 federal bodies rather to anarchy among the members, than to 
 tyranny in the head. PUBLIUS. 
 
 No. 19. independent Journal, Dec. 8, 1787.) Hamilton and MadisOH. 
 
 EXAMPLES OF MEDIEVAL AND MODERN 
 CONFEDERACIES. 
 
 The German empire — Example of Poland — The Swiss confederacy. 
 
 To the People of the State of New York: 
 
 The examples of ancient confederacies, cited in my last paper, 
 have not exhausted the source of experimental instruction on this 
 subject. There are existing institutions, founded on a similar 
 principle, which merit particular consideration. The first which 
 presents itself is the Germanic body. 
 
 In the early ages of Christianity, Germany was occupied by 
 seven distinct nations, who had no common chief. The Franks, 
 one of the number, having conquered the Gauls, established the 
 kingdom which has taken its name from them. In the ninth cen- 
 tury, 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 sover- 
 eign jurisdiction and independence. The force of imperial 
 sovereignty was insufficient to restrain such powerful dependents, 
 or to preserve the unity and tranquillity of the empire. The most 
 
H. audM.] POWERS OF THE DIET. 115 
 
 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 sover- 
 eignty ; in the fifteenth they had little more than the symbols 
 and decorations of power. 
 
 Out of this feudal system, which has itself many of the important 
 features of a confederacy, has grown the federal system which 
 constitutes the Germanic empire. Its powers are vested in a diet 
 representing the component members of the confederacy: in the 
 emperor, who is the executive magistrate, with a negative on the 
 decrees of the diet ; and in the imperial chamber, and the aulic 
 council, two judiciary tribunals having supreme jurisdiction in 
 controversies which concern the empire, or which happen among 
 its members. 
 
 The diet possesses the general power of legislating for the em- 
 pire ; of making war and peace ; contracting alliances ; assessing 
 quotas of troops and money ; constructing fortresses ; regulating 
 coin ; admitting new members ; and subjecting disobedient mem- 
 bers to the ban of the empire, by which the party is degraded 
 from his sovereign rights and his possessions forfeited. The 
 members of the confederacy are expressly restricted from entering 
 into compacts prejudicial to the empire; from imposing tolls and 
 duties on their mutual intercourse, without the consent of the 
 emperor and diet; from altering the value of money ; from doing 
 injustice to one another ; or from affording assistance or retreat 
 to disturbers of the public peace. And the ban is denounced 
 against such as shall violate any of these restrictions. The mem- 
 bers 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 im- 
 portant 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 (or his support. 
 
II 6 FEUDS OF GERMANY. Wo. 19 
 
 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 representa- 
 tives and head of this confederacy, the natural supposition would 
 be that it must form an exception to the general character which 
 belongs to its kindred systems. Nothing would be further from 
 the reality. The fundamental principle on which it rests, that the 
 empire is a community of sovereigns, that the diet is a representa- 
 tion 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 oppres- 
 sion of the weak ; of foreign intrusions, and foreign intrigues ; of 
 requisitions of men and money disregarded, or partially com- 
 plied 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 em- 
 pire on his side, was seen engaged against the other princes and 
 states. In one of the conflicts, the emperor himself was put to 
 flight and very near being made prisoner by the elector of Saxony. 
 The late king of Prussia was more than once pitted against his 
 imperial sovereign ; and commonly proved an overmatch for him. 
 Controversies and wars among the members themselves have been 
 so common that the German annals are crowded with the bloody 
 pages which describe them. Previous to the peace of Westphalia, 
 Germany was desolated by a war of thirty years, in which the 
 emperor, with one half of the empire, was on one side, and Sweden, 
 with the other half, on the opposite side. Peace was at length 
 negotiated, and dictated by foreign powers ; and the articles of it, 
 to which foreign powers are parties, made a fundamental part of 
 the Germanic constitution. 
 
 If the nation happens, on any emergency, to be more united by 
 the necessity of self-defense, its situation is still deplorable. 
 Military preparations must be preceded by so many tedious dis- 
 cussions, arising from the jealousies, pride, separate views, and 
 clashing pretensions of sovereign bodies, that before the diet can 
 settle the arrangements, the enemy are in the field ; and before 
 the federal troops are ready to take it, are retiring into winter 
 quarters. 
 
H.andM.] MILITARY COERCION. 117 
 
 The small body of national troops, which has been judged 
 necessary in time of peace, is defectively kept up, badly paid, 
 infected with local prejudices, and supported by irregular and 
 disproportionate contributions to the treasury. 
 
 The impossibility of maintaining' order and dispensing justice 
 among these sovereign subjects produced the experiment of 
 dividing the empire into nine or ten circles or districts ; of giving 
 them an interior organization, and of charging them with the 
 mihtary 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 minia- 
 ture 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 im- 
 perial city of the circle of Suabia, the Abbe de St. Croix enjoyed 
 certain immunities which had been reserved to him. In the exer- 
 cise of these, on some public occasions, outrages were committed 
 on him by the people of the city. The consequence was that the 
 city was put under the ban of the empire, and the Duke of 
 Bavaria, though director of another circle, obtained an appoint- 
 ment to enforce it. He soon appeared before the city with a corps 
 of ten thousand troops, and finding it a fit occasion, as he had 
 secretly intended from the beginning, to revive an antiquated 
 claim, on the pretext that his ancestors had suffered the place to 
 be dismembered from his territory,* he took possession of it in his 
 own name, disarmed and punished the inhabitants, and reannexed 
 the city to his domains. 
 
 It may be asked, perhaps, what has so long kept this disjointed 
 machine from falling entirely to pieces ? The answer is obvious. 
 The weakness of most of the members, who are unwilling to 
 expose themselves to the mercy of foreign powers ; the weakness 
 of most of the principal members, compared with the formidable 
 powers all around them ; the vast weight and influence which the 
 emperor derives from his separate and hereditary dominions ; and 
 the interest he feels in preserving a system with which his family 
 pride is connected, and which constitutes him the first prince in 
 
 *Pfeffel, "Nouvel Abreg. Chronol. de I'Hist., etc., d'AUemagne," 
 says the pretext was to indemnify himself for the expense of the expedi- 
 tion. — PUBUUS. 
 
1 1 8 SWISS CANTONS. Wo. 19 
 
 Europe ;— these causes support a feeble and precarious Union; 
 whilst the repellent quality incident to the nature of sovereignty, 
 and which time continually strengthens, prevents any reform 
 whatever, founded on a proper consolidation. Nor is it to be 
 imagined, if this obstacle could be surmounted, that the neighbor- 
 ing powers would suffer a revolution to take place, which would 
 give to the empire the force and pre-eminence to which it is entitled. 
 Foreign nations have long considered themselves as interested in 
 the changes made by events in this constitution ; and have, on 
 various occasions, betrayed their policy of perpetuating its anarchy 
 and weakness. 
 
 If more direct examples were wanting, Poland, as a government 
 over local sovereigns, might not improperly be taken notice of. 
 Nor could any proof more striking be given of the calamities flow- 
 ing from such institutions. Equally unfit for self-government and 
 self-defense, it has long been at the mercy of its powerful neigh- 
 bors ; who have lately had the mercy to disburden it of one-third 
 of its people and territories. 
 
 The connection among the Swiss cantons scarcely amounts to a 
 confederacy ; though it is sometimes cited as an instance of the 
 stability of such institutions. 
 
 They have no common treasury ; no common troops even in 
 war; no common coin; no common judicatory, nor any other 
 common mark of sovereignty. 
 
 They are kept together by the peculiarity of their topographical 
 position ; by their individual weakness and insignificancy ; by the 
 fear of powerful neighbors, to one of which they were formerly 
 subject ; by the few sources of contention among a people of such 
 "simple and homogeneous manners ; by their joint interest in their 
 dependent possessions ; by the mutual aid they stand in need of, 
 for suppressing insurrections and rebellions, an aid expressly stipu- 
 lated, and often required and afforded ; and by the necessity of 
 some regular and permanent provision for accommodating dis- 
 putes among the cantons. The provision is, that the parties at 
 variance shall each choose four judges out of the neutral cantons, 
 who, in case of disagreement, choose an umpire. This tribunal, 
 under an oath of impartiality, pronounces definitive sentence which 
 all the cantons are bound to enforce. The competency of this 
 regulation may be estimated by a clause in their treaty of 1683, 
 with Victor Amadeus of Savoy, in which he obliges himself to 
 interpose as mediator in disputes between the cantons, and to 
 employ force, if necessary, against the contumacious party. 
 
 So far as the peculiarity of their case will admit of comparison 
 
H.andM.] UNITED NETHERLANDS. ti9 
 
 with that of the United States, it serves to confirm the principle 
 intended to be established. Whatever efficacy the union may 
 have had in ordinary cases, it appears that the moment a cause of 
 difference sprang up, capable of trying its strength, it failed. The 
 controversies on the subject of religion, which in three instances 
 have kindled violent and bloody contests, may be said, in fact, to 
 have severed the league. The Protestant and Catholic cantons 
 have since had their separate diets, where all the most important 
 concerns are adjusted, and which have left the general diet little 
 other business than to take care of the common ballages. 
 
 That separation had another consequence which merits atten- 
 tion. It produced opposite alliances with foreign powers : of 
 Berne, at the head of the Protestant association, with the United 
 Provinces ; and of Luzerne, at the head of the Catholic association, 
 with France. PUBLIUS. 
 
 No. 20. (iv^TO Kor/f i»ac/6«/, Dec. II, 1787.) Hamilton and MadisoH. 
 EXAMPLE OF THE UNITED NETHERLANDS. 
 
 Nature of government — Historical illustrations — The present con- 
 dition . 
 
 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 confirm- 
 ing 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 inde- 
 pendent cities. In all important cases, not only the provinces but 
 the cities must be unanimous. 
 
 The sovereigrity of the union is represented by the States-Gen- 
 eral, 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 appoint- 
 ment during pleasure. 
 
 The States-General have authority to enter into treaties and 
 alliances; to make war and peace: to raise armies and equip 
 fleets ; to ascertain quotas and demand contributions. In all 
 these cases, however, unanimity and the sanction of their con- 
 
120 POWERS OF THE STADTHOLDER. [No. 20 
 
 stituents 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 adminis- 
 tration. 
 
 The executive magistrate of the union is the Stadtholder, who is 
 now an hereditary prince. His principal weight and influence in 
 the republic are derived from this independent title ; from his 
 great patrimonial estates ; from his family connections with some 
 of the chief potentates of Europe ; and, more than all, perhaps, from 
 his being stadtholder in the several provinces, as well as for the 
 union ; in which provincial quality he has the appointment of town 
 magistrates under certain regulations, executes provincial decrees, 
 presides — when he pleases — in the provincial tribunals, and has 
 throughout the power of pardon. 
 
 As Stadtholder of the union, he has, however, considerable pre- 
 rogatives. 
 
 In his political capacity he has authority to settle disputes 
 between the provinces, when other methods fail ; to assist at the 
 deliberations of the States-General, and at their particular confer- 
 ences; to give audiences to foreign ambassadors, and to keep 
 agents for his particular affairs at foreign courts. 
 
 In his military capacity he commands the federal troops, pro- 
 vides for garrisons, and in general regulates military affairs ; dis- 
 poses of all appointments, from colonels to ensigns, and of the 
 governments and posts of fortified towns. 
 
 In his marine capacity he is Admiral General, and superintends 
 and directs everything relative to naval forces and other naval 
 affairs ; presides in the admiralties in person or by. proxy ; appoints 
 lieutenant admirals and other officers ; and establishes councils of 
 war, whose sentences are not executed till he approves them. 
 
 His revenue, exclusive of his private income, amounts to three 
 hundred thousand florins. The standing army which he com- 
 mands consists of about forty thousand men. 
 
 Such is the nature of the celebrated Belgic confederacy, as 
 delineated on parchment. What are the characters which prac- 
 tice has stamped upon it ? Imbecility in the government ; discord 
 
H.andM.] THE STATES-GENERAL. I2l 
 
 among the provinces ; foreign influence and indignities ; a precari- 
 ous existence in peace, and peculiar calamities from war. 
 
 It was long ago remarked by Grotius that nothing but the 
 hatred of his countrymen to the House of Austria kept them from 
 being ruined by the vices of their constitution. 
 
 The union of Utrecht, says another respectable writer, reposes 
 an authority in the States-General, seemingly sufficient to secure 
 harmony, but the jealousy in each province renders the practice 
 very different from the theory. 
 
 The same instrument, says another, obliges each province to 
 levy certain contributions ; but this article never could, and prob- 
 ably never will be executed, because the inland provinces, who 
 have little commerce, cannot pay an equal quota. 
 
 In matters of contribution, it is the practice to waive the articles 
 of the constitution. The danger of delay obliges the consenting 
 provinces to furnish their quotas without waiting for the others, 
 and then to obtain reimbursement from the others by deputations 
 which are frequent, or otherwise, as they can. The great wealth 
 and influence of the province of Holland enable her to effect both 
 these purposes. 
 
 It has more than once happened that the deficiencies had to be 
 ultimately collected at the point of the bayonet ; a thing practica- 
 ble, though dreadful, in a confederacy where one of the members 
 exceeds in force all the rest, and where several of them are too 
 small to meditate resistance ; but utterly impracticable in one 
 composed of members several of which are equal to each other 
 in strength and resources, and equal singly to a vigorous and 
 persevering defense. 
 
 Foreign ministers, says Sir William Temple, who was himself 
 a foreign minister, elude matters taken ad referendwn, by tam- 
 pering with the provinces and cities. In 1726 the treaty of Han- 
 over 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 concluded without the consent of Zea- 
 land. Even as recently as the last treaty of peace with Great 
 Britain, the constitutional principle of unanimity was departed 
 from. A weak constitution must necessarily terminate in dissolu- 
 tion, for want of proper powers, or the usurpation of powers 
 requisite for the public safety. Whether the usurpation, when 
 
124 DISSENSIONS IN THE NETHERLANDS. LNo, 20 
 
 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 assump- 
 tions of power, called for, on pressing exigencies, by a defective 
 constitution, than out of the full exercise of the largest constitu- 
 tional authorities. 
 
 Notwithstanding the calamities produced by the Stadtholder- 
 ship, it has been supposed that without his influence in the indi- 
 vidual provinces, the causes of anarchy manifest in the confederacy 
 would long ago have dissolved it. " Under such a government," 
 says the Abhi Mably, " the union could never have subsisted, if 
 the provinces had not a spring within themselves, capable of 
 quickening their tardiness, and compelling them to the same way 
 of thinking. This spring is the Stadtholder.'' It is remarked by 
 Sir William Temple, " that in the intermissions of the Stadtholder- 
 ship, Holland, by her riches and her authority, which drew the 
 others into a sort of dependence, supplied the place." 
 
 These are not the only circumstances which have controlled th^ 
 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. 
 
 Tlie 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 melan 
 choly and monitory lesson of history ; and, with the tear that dro] 
 for the calamities brought on mankind by their adverse opinio 
 and selfish passions, let our gratitude mingle an ejaculation 
 Heaven for the propitious concord which has distinguished th"? 
 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 adver- 
 saries 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 theii* destin*^ All 
 nations have their eyes fixed on the awful spectacle. T^»first 
 wish prompted by humanity is that this severe trial may isRie in 
 
Hamilton! DEFECTS IN CONFEDERATION. 123 
 
 such a revolution of their government as will establish their union, 
 and render it the parent of tranquiUity, freedom, and happiness; 
 the next, that the asylum under which, we trust, the enjoyment 
 of these l^lessings 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 contempla- 
 tion 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 unequivo- 
 cally pronounces in the present case, is that a sovereignty over 
 sovereigns, a government over governments, a legislation for com- 
 munities as contradistinguished from individuals, as it is a sole- 
 , cism in theory, so in practice it is subversive of the order and ends 
 of civil polity, by substituting violence in place of law, or the 
 destructive coercion of the sword in place of the mild and salutary 
 coercion of the magistracy. PUBLIUS. 
 
 No. 21. (^Independent Journal, December 12, 1787.) Hamilton. 
 
 SPECIFIC DEFECTS IN THE CONFEDERATION. 
 
 No sanction of laws — No mutual guaranty of state governments — Dan- 
 gerous possibility of despotism — Advantages of a national guaranty — 
 
 , System of quotas and its unfairness — Difficulty in finding n. basis of 
 taxation — Comparison between the states in respect to wealth — Complex 
 sources of wealth and taxable ability — Inequality of taxation sure to 
 destroy Union — The national government must raise its own revenues 
 
 Mk Tendency of taxation to distribute itself— Taxes on articles of con- 
 
 ^^umption prescribe their own limit — Distinction between indirect and 
 
 ^^mirect taxes — Difficulties involved with direct taxes. 
 
 'To the People of the State of New York: 
 
 Having in the three last numbers taken a summary 
 review of the principal circumstances and events which 
 have depicted the genius and fate of other confederate 
 governments, I shall now proceed in the enumera- 
 tion of the most important of those defects which have 
 hithfco disappointed our hopes from the system estab- 
 lishe« among ourselves. To form a safe and satisfac- 
 tory judgment of the proper remedy, it is absolutely 
 
124 WANT OF SANCTION TO LAWS. [No. SI 
 
 necessary that we should be well acquainted with the 
 extent and malignity of the disease. 
 
 The next most palpable defect of the subsisting Con- 
 federation is the total want of a sanction to its laws. 
 The United States, as now composed, have no powers to 
 exact obedience, or punish disobedience to their resolu- 
 tions, either by pecuniary mulcts, by a suspension or 
 divestiture of privileges, or by any other constitutional 
 mode. There is no express delegation of authority to 
 them to use force against delinquent members; and if 
 such a right should be ascribed to the federal head, as 
 resulting from the nature of the social compact between 
 the States, it must be by inference and construction, 
 in the face of that part of the second article, by which 
 it is declared, " that each State shall retain every power, 
 jurisdiction, and right, not expressly delegated to thei. 
 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 animadver- 
 sion 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 j 
 of the shadow of constitutional power to enforce the 
 execution of its own laws. It will appear, from the 
 specimens which have been cited, that the American 
 Confederacy, in this particular, stands discriminated 
 from every other institution of a similar kind, and ex- 
 hibits a new and unexampled phenomenon in the political 
 world. 
 
 The want of a mutual guaranty of the State go^rn- 
 ments is another capital imperfection in the federal plan. 
 There is nothing of this kind declared in the articles that 
 
Hamilton! CASE OF MASSACHUSETTS. 125 
 
 compose it; and to imply a tacit guaranty from consid- 
 erations 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 conse- 
 quences endanger the Union, does not so immediately 
 attack its existence as the want of a constitutional 
 sanction to its laws/ 
 
 Without a guaranty the assistance to be derived from 
 the Union in repelling those domestic dangers which 
 may sometimes threaten the existence of the State con- 
 stitutions, 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 encroach- 
 ments with indignation and regret. A successful faction 
 may erect a tyranny on the ruins of order and law, while 
 no succor could constitutionally be afforded by the 
 Union to the friends and supporters of the government. 
 The tempestuous situation from which Massachusetts 
 has scarcely emerged evinces that dangers of this kind 
 gee are not merely speculative. Who can deter- 
 
 No. 6. mine what might have been the issue of her 
 
 late convulsions, if the malcontents had been headed by 
 a Caesar or by a Cromwell ? Who can predict what effect 
 a despotism, established in Massachusetts, would have 
 upon the liberties of New Hampshire or Rhode Island, of 
 Connecticut or New York? 
 
 The inordinate pride of State importance has sug- 
 gested to some minds an objection to the principle of a 
 guaranty in the federal government, as involving an 
 officious interference in the domestic concerns of the 
 members. A scruple of this kind would deprive us of 
 one of the principal advantages to be expected from 
 union, and can only flow from a misapprehension of the 
 
 1 The Congress of the Confederation had taken one step toward such a 
 guaranty by inserting in the Ordinance for the Government of the 
 North- West Territory, a clause guaranteeing a republicap government 
 to the states to be formed out of that section. — Editor. 
 
126 INADEQUACY OF QUOTAS. [No. 21 
 
 nature of the provision itself. It could be no impedi- 
 ment to reforms of the State constitutions by a majority 
 of the people in a legal and peaceable mode. This right 
 would remain undiminished. The guaranty could only 
 operate against changes to be effected by violence. 
 Toward the prevention of calamities of this kind, too 
 many checks cannot be provided. The peace of society 
 and the stability of government depend absolutely on 
 the efificacy of the precautions adopted on this head. 
 Where the whole power of the government is in the 
 hands of the people, there is the less pretense for the use 
 of violent remedies in partial or occasional distempers of 
 the State. The natural cure for an ill-administration, 
 in a popular or representative constitution, is a change 
 of men. A guaranty by the national authority would be 
 as much leveled against the usurpations of rulers as 
 against the ferments and outrages of faction and sedition 
 in the community. 
 
 The principle of regulating the contributions of the 
 States to the common treasury by quotas is another 
 fundamental error in the Confederation. Its repug- 
 nancy 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 
 
 ' The history of the results of the quota system was sketched by 
 Hamilton, in his speech on the Report, as follows : 
 
 "The universal delinquency of the States during the war shall be 
 passed over with the bare mention of it. The public embarrassments 
 were a plausible apology for that delinquency ; and it was hoped the peace 
 would have produced greater punctuality. The experiment has disap- 
 pointed that hope to a degree which confounds the least sanguine. A 
 comparative view of the compliances of the several States for the five 
 last years will furnish a striking result. 
 
 " During that period, as appears by a statement on our files, New 
 Hampshire, North Carolina, South Carolina, and Georgia have paid ' 
 nothing. I say nothing, because the only actual payment is the trifling 
 sum of about seven thousand dollars by New Hampshire. South Caro- 
 lina indeed has credits, but these are merely by way of discount on the 
 supplies furnished by her during the war, in consideration of her peculiar 
 sufferings and exertions while the immediate theater of it. 
 
 " Connecticut and Delaware have paid about one-third of their requisi- 
 tions; Massachusetts, Rhode Island, and Maryland, about one-hsU ; 
 
Hamilton] LANDS AND POPULATION. 127 
 
 States. Those who have been accustomed to contem- 
 plate the circumstances which produce and constitute 
 national wealth, must be satisfied that there is no com- 
 mon standard or barometer by which the degrees of it can 
 be ascertained. Neither the value of lands nor the 
 numbers of the people, which have been successively 
 proposed as the rule of State contributions, has any pre- 
 tension 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 aggre- 
 gate 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-men- 
 tioned 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 
 
 Virginia about three-fifths ; Pennsylvania nearly the whole ; and New 
 York more than her quota. 
 
 ' ' These proportions are taken on the specie requisitions ; the indents 
 have been very partially paid, and in their present state are of little 
 account. 
 
 " The payments into the Federal treasury have declined rapidly each 
 year. The whole amount for three years past, in specie, has not exceeded 
 $1,400,000, of which New York has paid one hundred per cent, more 
 than her proportion. This sum, little more than $400,000 a year, it 
 will readily be conceived, has been exhausted in the support of the civil 
 establishments of the Union and the necessary guards and garrisons 
 of public arsenals, and on the frontiers ; without any surplus for pay- 
 ing any part of the debt, foreign or domestic, principal or interest. 
 
 " Things are continually growing worse ; the last year in particular 
 produced less than $200,000, and that from only two or three States. 
 Several of the States have been so long unaccustomed to pay, that they 
 seem no longer concerned even about the appearances of compliance. 
 
 ' ' Connecticut and New Jersey have almost formally declined paying 
 any longer. The ostensible motive is the non-concurrence of this State 
 in the impost system. The real one must be conjectured from the fact. 
 
 " Pennsylvania, if I understand the scope of some late resolutions, 
 means to discount the interest she pays upon her assumption to her own 
 citizens ; in which case there will be little coming from her to the United 
 States. This seems to be bringing matters to a crisis. 
 
 " The pecuniary support of the federal government has of late de- 
 volved almost entirely upon Pennsylvania and New York. If Pennsyl- 
 vania refuses to continue her aid, what will be the situation of New 
 York ? Are we willing to be the Atlas of the Union ? or are we willing 
 to see it perish ? " — Editor. 
 
128 Causes OP NATIONAL wealth. [No. 21 
 
 nations. If the like parallel were to be run between 
 several of the American States, it would furnish a like 
 result. Let Virginia be contrasted with North Carolina, 
 Pennsylvania with Connecticut, or Maryland with New 
 Jersey, and we shall be convinced that the respective 
 abilities of those States, in relation to revenue, bear 
 little or no analogy to their comparative stock in lands 
 or to their comparative population. The position may 
 be equally illustrated by a similar process between 
 the counties of the same State. No man who is 
 acquainted with the State of New York will doubt 
 that the active wealth of Kings County bears a much 
 greater proportion to that of Montgomery, than it 
 would appear to be if we should take either the total 
 value of the lands or the total number of the people as 
 a criterion ! 
 
 The wealth of nations depends upon an infinite variety 
 of causes. Situation, soil, climate, the nature of the 
 productions, the nature of the government, the genius 
 of the citizens, the degree of information they possess, 
 the state of commerce, of arts, of industry — these cir- 
 cumstances and many more, too complex, minute, or 
 adventitious to admit of a particular specification, occa- 
 sion differences hardly conceivable in the relative 
 opulence and riches of different countries. The conse- 
 quence clearly is that there can be no common measure 
 of national wealth, and, of course, no general or station- 
 ary 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 
 
 ' An example of this truth was the attempted nullification by South 
 Carolina of the protective tariff of 1832, which from her point of view 
 placed unfair burdens on the South for the benefit of the North. More 
 
Hamilton] ADJUSTMENT OF INEQUALITIES. 129 
 
 consent to remain associated upon a principle which dis- 
 tributes the public burdens with so unequal a hand, and 
 which was calculated to impoverish and oppress the 
 citizens of some States, while those of others would 
 scarcely be conscious of the small proportion of the 
 weight they were required to sustain. This, however, is 
 an evil inseparable from the principle of quotas and 
 requisitions. 
 
 There is no method of steering clear of this inconven- 
 ience, but by authorizing the national government to 
 raise its own revenues in its own way. Imposts, excises, 
 and, in general, all duties upon articles of consumption, 
 may be compared to a fluid which will, in time, find its 
 level with the means of paying them. The amount to 
 be contributed by each citizen will in a degree be at his 
 own option, and can be regulated by an attention to his 
 resources. The rich may be extravagant, the poor can 
 be frugal ; and private oppression may always be avoided 
 by a judicious selection of objects proper for such impo- 
 sitions. 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 attain- 
 able 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. 
 
 recently, the East was almost as unanimous in opposing what it deemed 
 an endeavor of the West and South to shift an undue share of taxa- 
 tion upon the former section, in the income tax, and though resistance 
 to the law was only openly shown in the courts, there can be no doubt 
 that a large portion of those who were liable to pay the tax were quite as 
 determined to nullify the law by evasions or actual falsification, as the 
 South Carolinians were in 1832, the sole difference being in the change 
 of methods made necessary by the intervening years. Both incidents go 
 to show how absolutely futile it is for one section to seek to impose dis- 
 criminating burdens on another, for it must end either in evasion of the 
 law, in eventual compromise, or in attempted separation. — Editor. 
 
136 TAXES On CdNSUMPTlOrf. [No. 21 
 
 It is a signal advantage of taxes on articles of con- 
 sumption 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 
 See four." If duties are too high, they lessen the 
 
 yo. 35. consumption; the collection is eluded; and 
 
 the product to the treasury is not so great as when they 
 are confined within proper and moderate bounds. This 
 forms a complete barrier against any material oppression 
 of the citizens by taxes of this class, and is itself a 
 natural limitation of the power of imposing them.' 
 
 Impositions of this kind usually fall under the denomi- 
 nation of indirect taxes, and must for a long time con- 
 stitute the chief part of the revenue raised in this 
 country. Those of the direct kind, which principally 
 relate to land and buildings, may admit of a rule of 
 apportionment. Either the value of land or the number 
 of the people may serve as a standard. The state of 
 agriculture and the populousness of a country have been 
 considered as nearly connected with each other. And, 
 as a rule, for the purpose intended, numbers, in the view 
 of simplicity and certainty, are entitled to a preference. 
 In every country it is a herculean task to obtain a valua- 
 tion 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. 
 
 ' Hamilton scarcely conceived the passage of a tariff bill framed pur- 
 posely ' ' for the reduction of revenue " by means of such excessive rates 
 of duties as to reduce the importations to a minimum. — Editor. 
 
Hamilton] liECVLAtiON OF (tOMMERCk. 13* 
 
 No. 22. (New York Packet, V)<tcaa!aax^,,i^^^:) Hamilton. 
 
 DEFECT OF THE ARTICLES OF CONFEDERA- 
 TION AS TO COMMERCE, ARMY, STATE 
 EQUALITY, JUDICIARY, AND CONGRESS. 
 
 Want offowerto regulate commerce — Commercial treaties impossible — 
 Separate prohibitions of certain states — Irritation between the states of the 
 United States — Commerce of Germany — Quotas of soldiers — Competition 
 and results in expense and bounties — Eqi^l suffr'age of the states a great 
 evil — A nd conJradicts_a_£undamental^Hax^^ 
 
 — Minority government — Resulting evils in Congress — A check on good 
 legislation as well as on bad — Result as to foreign nations — Republics 
 subject to foreign corruption — One advantage of monarchy — Example 
 of United Provinces — Crowning defect of the confederation a want 
 of judiciary powet — Necessity for a supreme tribune — Thirteen sepa- 
 rate courts an impossibility — Evils of a single assembly or congress — 
 The confederation ratified by the states, not by the people. 
 
 To the People of the State of New York: 
 
 In addition to the defects already enumerated in the 
 existing federal system, there are others of not less 
 importance, which concur in rendering it altogether 
 unfit for the administration of the affairs of the Union. 
 
 The want of a power to regulate commerce is by all 
 parties allowed to be of the number. The utility of such 
 a power has been anticipated under the first head of our 
 inquiries; and for this reason, as well as from the uni- 
 versal conviction entertained upon the subject, little 
 need be added in this place. It is indeed evident on the 
 most superficial view that there is no object, either as it 
 respects the interests of trade or finance, that more 
 strongly demands a federal superintendence. The want 
 of it has already operated as a bar to the formation of 
 beneficial treaties with foreign powers, and has given 
 occasions of dissatisfaction between the States. No 
 nation acquainted with the nature of our political asso- 
 ciation would be unwise enough to enter into stipulations 
 with the United States, by which they conceded privileges 
 
132 CONSISTENCY NEEDED. Wo. 22 
 
 of any importance to them, while they were apprised that 
 the engagements on the part of the Union might at any 
 moment be violated by its members, and while they 
 found from experience that they might enjoy every 
 advantage they desired in our markets, without granting 
 us any return but such as their momentary convenience 
 might suggest.' It is not, therefore, to be wondered 
 at that Mr. Jenkinson, in ushering into the House of 
 Commons a bill for regulating the temporary intercourse 
 between the two countries, should preface its introduc- 
 tion 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.* 
 
 *This, as nearly as I can recollect, was the sense of his speech on 
 introducing the last bill. — PuBLius. 
 
 ' In 1775 Parliament voted an entire cessation of trade with the re- 
 volted colonies, and these laws were in force when the treaty of peace 
 was signed in 1783. In that year Pitt introduced a bill to " admit the 
 Americans into the benefits of English commerce on terms of equality 
 with the English subject." As the initial departure from the " mercan- 
 tile system " of Great Britain, it encountered the most obstinate resist- 
 ance, and produced from Lord Sheffield his able " Observations on the 
 Commerce of the American States." This, together with the disunited 
 action of the various states, proved to the British government that they 
 could enjoy the commerce of the United States without making any con- 
 cessions whatsoever, and for more than twelve years the trade was 
 " provisionally " regulated by orders in council. In a report of a Com- 
 mittee of the Lords of the Privy Council on the Trade of Great Britain 
 with the United States, 1791 (Washington, 1888), this very question of 
 the practicality of prohibitions and restraints from the British stand- 
 point was discussed, and decided against, as certain to result in a loss of 
 trade to the restricting country equal to the injury done to the country 
 discriminated against. In America after the organization of the national 
 government, Hamilton supported an equally enlightened policy, but Jef- 
 ferson, in his report on Commerce {1793), advocated a contrary system, 
 which Madison attempted to carry out in Congress by his resolutions 
 of January 3, 1794. From that day there has frequently existed a 
 strongly anti-British party in Congress which has sought to force special 
 privileges from our greatest customer by legislation unfriendly to her 
 commerce and shipping. The most recent suggestions in this direction 
 have been to lay, 1st, additional taxes on British goods, unless Great 
 Britain adopts a bimetallic money, and 2d, special taxes on all goods 
 not imported in American ships. — Editor. 
 
Hamilton] CONFLICT OF STATE REGULATIONS. 133 
 
 Several States have endeavored, by separate prohibi- 
 tions, restrictions, and exclusions, to influence the con- 
 See duct of that kingdom in this particular, but 
 No. 11, 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 experi- 
 ment 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 
 gee different instances, given just cause of um- 
 
 Ko. 7. brage and complaint to others, and it is to be 
 
 feared that examples of this nature, if not restrained by 
 a national control, would be multiplied and extended till 
 they became not less serious sources of animosity and 
 discord than injurious impediments to the intercourse 
 between the different parts of the Confederacy. "The 
 commerce of the German empire* is in continual tram- 
 mels 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 per- 
 mit this description to be strictly applicable to us, yet 
 we may reasonably expect, from the gradual conflicts of 
 State regulations, that the citizens of each would at 
 length come to be considered and treated by the others 
 in no better light than that of foreigners and aliens. 
 
 The power of raising armies, by the most obvious 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 
 economical system of defense. It gave birth to a com- 
 petition between the States which created a kind of 
 
 * Encyclopedia, article " Empire."— Publius. 
 
134 STATE LEVIES OP TkOOPS. [Mo. 2S 
 
 auction for men. In order to furnish the quotas required 
 of them, they outbid each other till bounties grew to an 
 enormous and insupportable size.' The hope of a still 
 further increase afforded an inducement to those who 
 were disposed to serve to procrastinate their enlistment, 
 and disinclined them from engaging for any considerable 
 periods. Hence slow and scanty levies of men in the 
 most-critical emergencies of our affairs; short enlistments 
 at an unparalleled expense; continual fluctuations in the 
 troops, ruinous to their discipline and subjecting the 
 public safety frequently to the perilous crisis of a dis- 
 banded army. Hence, also, those oppressive expedients 
 for raising men which were upon several occasions prac- 
 ticed, and which nothing but the enthusiasm of liberty 
 would have induced the people to endure. 
 
 This method of raising troops is not more unfriendly 
 to economy and vigor than it is to an equal distribution 
 of the burden. The States near the seat of war, influenced 
 by motives of self-preservation, made efforts to furnish 
 their quotas, which even exceeded their abilities; while 
 those at a distance from danger were, for the most part, 
 as remiss as the others were diligent in their exertions. 
 The immediate pressure of this inequality was not in this 
 case, as in that of the contributions of money, alleviated 
 by the hope of a final liquidation. The States which did 
 not pay their proportions of money might at least be 
 charged with their deficiencies; but no account could be 
 formed of the deficiencies in the supplies of men. We 
 shall not, however, see much reason to regret the want 
 of this hope, when we consider how little prospect there 
 is that the most delinquent States will ever be able to 
 make compensation for their pecuniary failures. The 
 system of quotas and requisitions, whether it be applied 
 to men or money, is, in every view, a system of imbecility 
 in the Union, and of inequality and injustice among the 
 members. 
 
 The right of equal suffrage among the States is another 
 
 ' The same evil was manifested in the Civil War. — Editor. 
 
Hamilton] MAJORITY OF STATES. 13S 
 
 exceptionable part of the Confederation. Every idea of 
 proportion and every rule of fair representation con- 
 See spire to condemn a principle which gives to 
 No. 62. Rhode Island an equal weight in the scale of 
 power with Massachusetts, or Connecticut, or New York; 
 and to Delaware an equal voice in the national delibera- 
 tions with Pennsylvania, or Virginia, or North Carolina. 
 Its operation contradicts the fundamental maxim of 
 republican government, which requires that the sense of 
 the majority should prevail. Sophistry may reply that 
 sovereigns are equal, and that a majority of the votes of 
 the States will be a majority of confederated America. 
 But this kind of logical legerdemain will never counter- 
 act 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 America could not long be persuaded, upon 
 the credit of artificial distinctions and syllogistic subtle- 
 ties, 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 wel- 
 fare depend on union, ought readily to renounce a pre- 
 tension 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 
 
 * 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.— Pjjbljus, 
 
136 NEGATIVE OF MINORITY. [Wo. 22 
 
 unequal dimensions and populousness; nor is ttie infer- 
 ence 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 
 sufificiency of a vote of seven States, would extend its 
 operation to interests of the first magnitude. In addi- 
 tion to this, it is to be observed that there is a proba- 
 bility of an increase in the number of States, and no 
 provision for a proportional augmentation of the ratio of 
 votes. 
 
 But this is not all: what at first sight may seem a 
 remedy is, in reality, a poison. To give a minority a 
 negative upon the majority (which is always the case 
 where more than a majority is requisite to a decision) is, 
 in its tendency, to subject the sense of the greater num- 
 ber to that of the lesser. Congress, from the non-at- 
 tendance 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 toward 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, tur- 
 bulent, or corrupt junto, to the regular deliberations and 
 decisions of a respectable majority. In those emergen- 
 
 * Add New York and Connecticut to the foregoing seven, and they 
 will be less than a majority. — PuBLius. 
 
Hamilton] OBSTRUCTIVE LEGISLATION. 137 
 
 cies 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 for- 
 ward. If a pertinacious minority can control the opinion 
 of a majority, respecting the best mode of conducting it, 
 the majority, in order that something may be done, must 
 conform to the views of the minority; and thus the 
 sense of the smaller number will overrule that of the 
 greater, and give a tone to the national proceedings. 
 Hence tedious delays; continual negotiation and 
 intrigue; contemptible compromises of the public good. 
 And yet, in such a system, it is even happy when such 
 compromises can take place; for upon some occasions 
 things will not admit of accommodation; and then the 
 measures of government must be injuriously suspended, 
 or fatally defeated. It is often, by the impracticability 
 of obtaining the concurrence of the necessary number of 
 votes, kept in a state of inaction. Its situation must 
 always savor of weakness; sometimes border upon 
 anarchy. 
 
 It is not difficult to discover that a principle of this 
 kind gives greater scope to foreign corruption, as well 
 as to domestic faction, than that which permits the 
 sense of the majority to decide; though the contrary of 
 this has been presumed. The mistake has proceeded 
 from not attending with due care to the mischiefs that 
 may be occasioned by obstructing the progress of govern- 
 ment at certain critical seasons. When the concurrence 
 of a large number is required by the Constitution to the 
 doing of any national act, we are apt to rest satisfied 
 that all is safe, because nothing improper will be likely 
 to be done; but we forget how much good may be pre- 
 vented, 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. Sup- 
 
138 FOREIGN CORRUPTION. [No. 22 
 
 pose the necessity of our situation demanded peace, and the 
 interest or ambition of our ally led him to seek the prosecu- 
 tion of the war, with views that might justify us in mak- 
 ing separate terms. In such a state of things, this ally 
 of ours would evidently find it much easier, by his bribes 
 See No. and intrigues, to tie up the hands of govern- 
 
 59- ment from making peace, where two-thirds of 
 
 all the votes were requisite to that object, than where a 
 simple majority would suffice. In the first case, he 
 would have to corrupt a smaller number; in the last, a 
 greater number.' Upon the same principle, it would be 
 much easier for a foreign power with which we were at 
 war to perplex our councils and embarrass our exertions. 
 And, in a commercial view, we may be subjected to 
 similar inconveniences. A nation with which we might 
 have a treaty of commerce could with much greater 
 facility prevent our forming a connection with her com- 
 petitor in trade, though such a connection should be ever 
 so beneficial to ourselves. 
 
 Evils of this description ought not to be regarded as 
 imaginary. One of the weak sides of republics, among 
 their numerous advantages, is that they afford too easy 
 an inlet to foreign corruption. An hereditary monarch, 
 though often disposed to sacrifice his subjects to his 
 
 ' This dread of the inflaence of foreign governments was by no means 
 unreasonable. During the Revolutionary War the French minister fre- 
 quently interfered to influence Congressional action, and used secret serv- 
 ice funds to corrupt both congressmen and the press, securing for his 
 country, among other important advantages, an instruction to our peace 
 envoys not to agree to a treaty with Great Britain which did not satisfy 
 France, an instruction which fortunately was disregarded. In 1793, if 
 the private dispatches of Genet are to be believed, Jefferson, in his 
 enthusiasm for France, was supplying him with the most confidential 
 secrets of the cabinet, and, a year later, the French minister wrote his 
 government that Randolph, the Secretary of State, furnished him with 
 "precious" information and virtually asked for money. During this 
 period Great Britain, France, and Spain each had its particular writers 
 and journals in this country, and the Spanish plottings in the West, the 
 French minister's threat to appeal from the President to the people, and 
 his interference in the Presidential election of 1797, and, somewhat 
 later, the British intrigues in New England, all bear witness to how 
 lightly national sentiment was held by a substantial part of the people. 
 A foreign traveler of that time notes in this country that " there seemed 
 to be many English, many French, but few Araeriq^n?." After the en4 
 
Hamilton] SeTHAVaL OF TRUST. 139 
 
 ambition, has so great a personal interest in the govern- 
 ment and in the external glory of the nation, that it is not 
 easy for a foreign power to give him an equivalent for 
 what he would sacrifice by treachery to the state. The 
 world has accordingly been witness to few examples of 
 this species of royal prostitution, though there have been 
 abundant specimens of every other kind. 
 
 In republics, persons elevated from the mass of the 
 community by the suffrages of their fellow-citizens, to 
 stations of great pre-eminence and power, may find com- 
 pensations 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 corrup- 
 tion in republican governments. How much this contrib- 
 uted 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 
 
 of the War of 1812, which marked the termination of our vital interest 
 in European politics, the political questions became chiefly internal, and 
 with them this introduction of foreign influence disappeared, very quickly 
 followed by a reaction to the other extreme of intense dread of foreign 
 influence. Traces of this, aimed only at particular nations, and due to 
 temporary incidents, had already been shown by the enactment of the 
 Alien law of 1798, and by an anti-alien clause of the amendments to the 
 constitution proposed by the Hartford convention. But the great expres- 
 sion of it found vent in the " American " or, more commonly speaking, 
 the " Know Nothing" party, which began about 1835, and with varying 
 power manifested itself until the outbreak of the Civil War. A recurrence 
 of this feeling expresses itself to-day in the A. P. A. It is to be noted, ' 
 however, that these later movements served more or less as cloaks to the 
 otherwise impossible scheme to introduce religious intolerance into Ameri- 
 can politics. The most recent introduction of the question of foreign in- 
 fluence was due to a very harmless private letter, written by the British 
 minister in the campaign of 1888, which produced an outburst of indig- 
 nation sufficient to induce the President, for partisan rather than 
 diplomatic reasons, to request the recall of that minister. — Editor. 
 
14° ONE SUPREME TRIBUNAL. OTo. 22 
 
 major's commission for one of those deputies. And in 
 Sweden the parties were alternately bought by France 
 and England in so barefaced and notorious a manner that 
 it excited universal disgust in the nation, and was a 
 principal cause that the most limited monarch in Europe, 
 in a single day, without tumult, violence, or opposition, 
 became one of the most absolute and uncontrolled. 
 
 A circumstance which crowns the defects of the Con- 
 federation remains yet to be mentioned — the want of a 
 See No. judiciary power. Laws are a dead letter with- 
 
 I'B. out courts to expound and define their true 
 
 meaning and operation. The treaties of the United 
 States, to have any force at all, must be considered as 
 part of the law of the land. Their true import, as far as 
 respects individuals, must, like all other laws, be ascer- 
 tained by judicial determinations. To produce uniform- 
 ity in these determinations, they ought to be submitted, 
 in the last resort, to one supreme tribunal. And this 
 tribunal ought to be instituted under the same authority 
 which forms the treaties themselves. These ingredients 
 are both indispensable. If there is in each State a court 
 of final jurisdiction, there may be as many different final 
 determinations on the same point as there are courts. 
 There are endless diversities in the opinions of men. 
 We often see not only different courts, but the judges of 
 the same court differing from each other. To avoid the 
 confusion which would unavoidably result from the con- 
 tradictory decisions of a number of independent judi- 
 catories, all nations have found it necessary to establish 
 one court paramount to the rest, possessing a general 
 superintendence, and authorized to settle and declare in 
 the last resort a uniform rule of civil justice. 
 
 This is the more necessary where the frame of the 
 -government is so compounded that the laws of the whole 
 are in danger of being contravened by the laws of the 
 parts. In this case, if the particular tribunals are 
 invested with a right of ultimate jurisdiction, besides the 
 contradictions to be expected from difference of opinion, 
 there will be much to fear from the bias of local views 
 
Hamilton] VARIABLE LEGISLATION. 141 
 
 and prejudices, and from the interference of local regula- 
 tions. 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 toward 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 dif- 
 ferent legislatures, and as many different courts of final 
 jurisdiction, acting under the authority of those legisla- 
 tures.' The faith, the reputation, the peace of the whole 
 Union, are thus continually at the mercy of the preju- 
 dices, 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 pre- 
 conceived 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 
 
 ' On the subject of infractions of the British Treaty of 1783 by the 
 various State.?, see Hammond's and Jefferson's correspondence ("Ameri- 
 can State Papers, Foreign Relations," i. 193).— Editor. 
 
t4^ LIMITA TlONS OF CONGRESS. [»<>• 22 
 
 principles of good government to intrust it with those 
 additional powers which, even the moderate and more 
 rational adversaries of the proposed Constitution admit, 
 ought to reside in the United States/ If that plan 
 should not be adopted, and if the necessity of the Union 
 should be able to withstand the ambitious aims of those 
 men who may indulge magnificent schemes of personal 
 aggrandizement from its dissolution, the probability 
 would be that we should run into the project of confer- 
 ring supplementary powers upon Congress, as they are 
 now Qonstituted; and either the machine, from the 
 intrinsic feebleness of its structure, will molder into 
 pieces, in spite of our ill-judged efforts to prop it; or, by 
 successive augmentations of its force and energy, as 
 necessity might prompt, we shall finally accumulate, in a 
 
 ' The Continental Congress had illustrated the evils of a single legisla- 
 tive body. Frequently it had adopted resolutions only to repeal them 
 the next day, and in several cases had rejected, reconsidered, and 
 adopted, and again rejected in the course of a week, the same motion ; 
 the change being due to the arrival or departure of members, and to the 
 lack of any check. A want of stability had likewise been shown in 
 the single assembly body of Pennsylvania, the history of which had been 
 marked by extremely impulsive and variable legislation. The value of 
 a dual-bodied legislative power seems not merely to consist in the 
 additional check on hasty legislation which the delay of separate con- 
 sideration necessarily involves, but in a still greater degree, in the 
 inevitable competition in which they become involved. Both seek 
 public favor, and they therefore become rivals. Necessarily a measure 
 originated by one encounters in the other a stern criticism, and this is so 
 keen that frequently each house prepares its own bill, and having done 
 so, adheres to it with a positiveness that has compelled the introduction 
 of a new legislative element in the shape of a third or union chamber, 
 usually termed a compromise committee, made up of an equal number of 
 members from the two bodies, whose joint action in practice has become 
 almost dictatorial. The tendency the world over (in spite of Congres- 
 sional adoption of the " previous question" and the parliamentary intro- 
 duction of " closure," to say nothing of a steadily increasing power over 
 legislative action granted to presiding officers) is to make legislation 
 slower and otherwise more difficult. While this may have its apparent 
 disadvantages it is probable that the public gain far more than they lose, 
 for it is certain that, in sharply critical "moments, Congress can still act 
 with the greatest celerity (notably in their vote of the funds entailed by 
 the Venezuelan message), and the ordinary delay not merely gives more 
 time for consideration, but even prevents much legislation. The dis- 
 solution of each Congress is a grave to many thousand bills, which would 
 have been passed had they but been reached in the session ; their use- 
 lessness is well proven by subsequent events. — EDITOR. 
 
Hamilton] POPULAR CONSENT A TRUE BASIS. 143 
 
 single body, all the most important prerogatives of 
 sovereignty, and thus entail upon our posterity one of 
 the most execrable forms of government that human 
 infatuation ever contrived. Thus we should create in 
 reality that very tyranny which the adversaries of the 
 new Constitution either are, or affect to be, solicitous to 
 avert. 
 
 It has not a little contributed to the infirmities of the 
 existing federal system that it never had a ratification by 
 the PEOPLE. Resting on no better foundation than the 
 consent of the several legislatures, it has been exposed to 
 frequent and intricate questions concerning the validity 
 of its powers, and has, in some instances, given birth to 
 the enormous doctrine of a right of legislative repeal. 
 Owing its ratification to the law of a, State, it has been 
 contended that the same authority might repeal the law 
 by which it was ratified. However gross a heresy it may 
 be to maintain that a.parfy to a compact has a right to 
 revoke that compact, the doctrine itself has had respectable 
 advocates. The possibility of a question of this nature 
 proves the necessity of laying the foundations of our 
 national government deeper than in the mere sanction 
 of delegated authority. The fabric of American empire 
 ought to rest on the solid basis of the consent of the 
 PEOPLE. The streams of national power ought to flow 
 immediately from that pure, original fountain of all 
 legitimate authority. Publius. 
 
144 NEED OF A CONSTITUTION. Wo. 23 
 
 No, 23. (New York Journal, December 18, 1787.*) Hamilton. 
 
 NECESSITY OF A GOVERNMENT AT LEAST 
 EQUALLY ENERGETIC WITH THE ONE PRO- 
 POSED. 
 
 Objects to be provided for bynational government — Armies and fleets^^ 
 Condition under present confederation — Vain project of legislating 
 upon the States — Laws must be extended to individual citizens — The 
 essential point in a compound government a discrimination of power — 
 Fleets and armies from this point of view. 
 
 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. 
 
 This inquiry will naturally divide itself into three 
 branches: the objects to be provided for by the federal 
 government, the quantity of power necessary to the ac- 
 complishment of those objects, the persons upon whom 
 that power ought to operate. Its distribution and organ- 
 ization will more properly claim our attention under the 
 succeeding head. 
 
 The principal purposes to be answered by union are 
 these: the common defense of the members; the preser- 
 vation of the public peace, as well against internal con- 
 vulsions as external attacks; the regulation of commerce 
 with other nations and between the States; the superin- 
 tendence of our intercourse, political and commercial, 
 with foreign countries. 
 
 * ' ' Yesterday the manuscript copy of the subsequent was communicated 
 to the editor, with an assurance that his press should be preferred, in 
 future, for the first ushering into public view the succeeding numbers. 
 If the public are pleased to stigmatize the editor as a partial printer, in 
 the face of his reiterated assertions of ' being influenced by none,' what 
 more can be said ! This stigma he prefers to that of a slavish copyist ; 
 consequently, unless manuscripts are communicated, he will be con- 
 strained (however injudicious) still to crouch under the weighty charge of 
 partiality." — New York Journal, December 18, 1787. 
 
Hamilton] NATIONAL AUTHORITY. „ I4S 
 
 The authorities essential to the common .defense are 
 these: to raise armies; to build and equip fleets; to pre- 
 scribe rules for the government of both; to direct their 
 operations; to provide for their support. These powers 
 ought to exist without limitation, because it is impossible to 
 foresee or define the extent and variety of national exigencies, 
 or the correspondent extent and variety of the means which 
 may be necessary to satisfy them. The circumstances that 
 endanger the safety of nations are infinite, and for this 
 reason no constitutional shackles can wisely be imposed 
 on the power to which the care of it is committed. This 
 power ought to be coextensive with all the possible 
 combinations of such circumstances; and ought to be 
 under the direction of the same councils which are 
 appointed to preside over the common defense. 
 
 This is one of those truths which, to a correct and 
 unprejudiced mind, carries its own evidence along with 
 it; and may be obscured but cannot be made plainer by 
 argument or reasoning. It rests upon axioms as simple 
 as they are universal; the means ought to be proportioned 
 to the end; the persons from whose agency the attainment 
 of any end is expected ought to possess the means by 
 which it is to be attained. . 
 
 Whether there ought to be a federal government in- 
 trusted with the care of the common defense is a ques- 
 tion, in the first instance, open for discussion; but the 
 moment it is decided in the affirmative, it will follow that 
 that government ought to be clothed with all the powers 
 requisite to complete execution of its trust. And unless 
 it can be shown that the circumstances which may affect 
 the public safety are reducible within certain determinate 
 limits; unless the contrary of this position can be fairly 
 and rationally disputed, it must be admitted, as a neces- 
 sary consequence, that there can be no limitation of that 
 authority which is to provide for the defense and pro- 
 tection of the community, in any matter essential to its 
 efficacy — that is, in any matter essential to the forma- 
 tion, direction, or support of the national forces. 
 
 Defective as the present Confederation has been proved 
 
146 COMMON DEFENSE AND WELFARE. Wo. 23 
 
 to be, this principle appears to have been fully recognized 
 by the framers of it; though they have not made proper 
 or adequate provision for its exercise. Congress have 
 an unlimited discretion to make requisitions of men and 
 money; to govern the army and navy; to direct their 
 operations. As their requisitions are made constitu- 
 tionally binding upon the States, who are in fact under 
 the most solemn obligations to furnish the supplies 
 required of them, the intention evidently was that the 
 United States should command whatever resources were 
 by them judged requisite to the " common defense and 
 general welfare." It was presumed that a sense of their 
 true interests, and a regard to the dictates of good faith, 
 would be found sufiScient pledges for the punctual per- 
 formance of the duty of the members to the federal head. 
 
 The experiment has, however, demonstrated that this 
 expectation was ill-founded and illusory; and the obser- 
 vations made under the last head will, I imagine, have 
 sufficed to convince the impartial and discerning that 
 there is an absolute necessity for an entire change in the 
 first principles of the system; that if we are in earnest 
 about giving the Union energy and duration, we must 
 abandon the vain project of legislating upon the States 
 in their collective capacities; we must extend the laws 
 of the federal government to the individual citizens of 
 America; we must discard the fallacious scheme of quotas 
 and requisitions, as equally impracticable and unjust. 
 The result from all this is that the Union ought to be 
 invested with full power to levy troops; to build and 
 equip fleets; and to raise the revenues which will be 
 required for the formation and support of an army and 
 navy, in the customary and ordinary modes practiced in 
 other governments. 
 
 If the circumstances of our country are such as to 
 demand a compound instead of a simple, a confederate 
 instead of a sole, government, the essential point which 
 will remain to be adjusted will be to discriminate the 
 OBJECTS, as far as it can be done, which shall appertain 
 to the different provinces or departments of power; 
 
Hamilton] EFFECTIVE POWERS. 147 
 
 allowing to each the most ample authority for fulfilling 
 the objects committed to its charge. Shall the Union be 
 constituted the guardian of the common safety? Are 
 fleets and armies and revenues necessary to this purpose? 
 The government of the Union must be empowered to 
 pass all laws and to make all regulations which have 
 relation to them. The same must be the case in respect 
 to commerce and to every other matter to which its 
 jurisdiction is permitted to extend. Is the administra- 
 tion of justice between the citizens of the same State the 
 proper department of the local governments? These 
 must possess all the authorities which are connected with 
 this object and with every other that may be allotted to 
 their particular cognizance and direction. Not to confer 
 in each case a degree of power commensurate to the end 
 would be to violate the most obvious rules of prudence 
 and propriety, and improvidently to trust the great 
 interests of the nation to hands which are disabled from 
 managing them with vigor and success. 
 
 Who so likely to make suitable provisions for the public 
 defense as that body to which the guardianship of the 
 public safety is confided; which, as the center of infor- 
 mation, will best understand the extent and urgency of 
 the dangers that threaten; as the representative of the 
 WHOLE, will feel itself most deeply interested in the 
 preservation of every part; which, from the responsibility 
 implied in the duty assigned to it, will be most sensibly 
 impressed with the necessity of proper exertions; and 
 which, by the extension of its authority throughout the 
 States, can alone establish uniformity and concert in the 
 plans and measures by which the common safety is to be 
 secured? Is there not a manifest inconsistency in devolv- 
 ing upon the federal government the care of the general 
 defense, and leaving in the State governments the effective 
 powers by which it is to be provided for? Is not a want 
 of co-operation the infallible consequence of such a 
 system? And will not weakness, disorder, an undue 
 distribution of the burdens and calamities of war, an 
 unnecessary and intolerable increase Of expense, be its 
 
148 NATIONAL INTERESTS. [No. 23 
 
 natural and inevitable concomitants? Have we not had 
 unequivocal experience of its effects in the course of the 
 revolution which we have just accomplished? 
 
 Every view we may take of the subject, as candid in- 
 quirers after truth, will serve to convince us that it is 
 both unwise and dangerous to deny the federal govern- 
 ment an unconfined authority, as to all those objects 
 which are intrusted to its management. It will indeed 
 deserve the most vigilant and careful attention of the 
 people, to see that it be modeled in such a manner as 
 to admit of its being safely vested with the requisite 
 powers. If any plan which has been or may be 
 offered to our consideration, should not, upon a dispas- 
 sionate inspection, be found to answer this description, 
 it ought to be rejected. A government, the constitu- 
 tion of which renders it unfit to be trusted with all the 
 powers which a free people ought to delegate to any govern- 
 ment, would be an unsafe and improper depositary of the 
 NATIONAL INTERESTS. Wherever these can with pro- 
 priety be confided, the coincident powers may safely 
 accompany them. This is the true result of all just 
 reasoning upon the subject. And the adversaries of the 
 plan promulgated by the convention ought to have con- 
 fined themselves to showing that the internal structure 
 of the proposed government was such as to render it 
 unworthy of the confidence of the people. They ought 
 not to have wandered into inflammatory declamations 
 and unmeaning cavils about the extent of the powers. 
 The powers are not too extensive for the objects of 
 federal administration, or, in other words, for the man- 
 agement of our NATIONAL INTERESTS; nor can any satis- 
 factory 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 con- 
 tract our views and resort to the expedient of separate 
 
Hamilton] SIZE AN ARGUMENT FOR UNION. 149 
 
 confederacies, which will move within more practicable 
 spheres. For the absurdity must continually stare us in 
 the face of confiding to a government the direction of 
 the most essential national interests, without daring to 
 trust it to the authorities which are indispensable to 
 their proper and efficient management. Let us not 
 attempt to reconcile contradictions, but firmly embrace 
 a rational alternative. 
 
 I trust, however, that the impracticability of one 
 general system cannot be shown. I am greatly mistaken 
 if anything of weight has yet been advanced of this tend- 
 ency; 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 experi- 
 ence can be susceptible of. This, at all events, must be 
 evident, that the very difficulty itself, drawn from the 
 extent of the country, is the strongest argument in favor 
 of an energetic government; for any other can certainly 
 never preserve the union of so large an empire. If we 
 embrace the tenets of those who oppose the adoption of 
 the proposed Constitution, as the standard of our politi- 
 cal 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. 
 
15° STANDING ARMIES IN PEACE. INo. 24 
 
 No. 24. (.New York Journal, December 19, 1787.) Hamilton. 
 
 POWERS CONFERRED BY NEW CONSTITUTION 
 IN REGARD TO NATIONAL FORCES. 
 
 Alleged want of proper provision against the existence of standing 
 armies in time of peace — Restriction of the legislative authority as 
 regards military establishments an unheard-of principle — Where the 
 constitution vests 'control — Clauses in the state constitutions in regard 
 to standing army — The same clause in the articles of confederation — 
 Dangers threatening America — Necessity for western garrisons — 
 British and Spanish colonies — Protection of navy yards and arsenals. 
 
 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 direc- 
 tion of the national forces, I have met with but one 
 specific objection, which, if I understand it right, is this 
 See — that proper provision has not been made 
 
 No. 8. against the existence of standing armies in 
 
 time, of peace; an objection which I shall now endeavor 
 to show rests on weak and unsubstantial foundations. 
 
 It has indeed been brought forward in the mpst 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 con- 
 stitutions. The propriety of this remark will appear 
 the moment it is recollected that the objection under 
 consideration turns upon a supposed necessity of restrain- 
 ing 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 pre- 
 viously inspected the plan reported by the convention, 
 would be naturally led to one of two conclusions: either 
 
Hamilton! LEGISLA7VVE AUTHORITY. 151 
 
 that it contained a positive injunction that standing 
 armies should be kept up in time of peace; or that it 
 vested in the executive the whole power of levying 
 troops without subjecting his discretion, in any shape, 
 to the control of the legislature. 
 
 If he came afterward 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 Execu- 
 tive; that this legislature was to be a popular body, con- 
 sisting of the representatives of the people, periodically 
 elected; and that instead of the provision he had sup- 
 posed in favor of standing armies, there was to be found, 
 in respect to this object, an important qualification even 
 of the legislative discretion, in that clause which forbids 
 the appropriation of money for the support of an army 
 for any longer period than two years — a precaution 
 which, upon a nearer view of it, will appear to be a great 
 and real security against the keeping up of troops with- 
 out evident necessity. 
 
 Disappointed in his first surmise, the person I have 
 supposed would be apt to pursue his conjectures a little 
 further. He would naturally say to himself, it is impos- 
 sible that all this vehement and pathetic declamation can 
 be without some colorable pretext. It must needs be 
 that this people, so jealous of their liberties, have, in all 
 the preceding models of the constitutions which they 
 have established, inserted the most precise and rigid 
 precautions on this point, the omission of which, in the 
 new plan, has given birth to all this apprehension and 
 clamor. 
 
 If, under this impression, he proceeded to pass in 
 review the several State constitutions, how great 
 would be his disappointment to find that tivo only of 
 them* contained an interdiction of standing armies in 
 
 * This statement of the matter is taken from tire 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 
 
152 MILITARY ESTABLISHMENTS. Wo. 24 
 
 time of peace; that the other eleven had either observed 
 a profound silence on the subject, or had in express 
 terms admitted the right of the Legislature to authorize 
 their existence. 
 
 Still, however, he would be persuaded that there must 
 be some plausible foundation for the cry raised on this 
 head. He would never be able to imagine, while any 
 source of information remained unexplored, that it was 
 nothing more than an experiment upon the public cre- 
 dulity, 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 
 
 up." This is, in truth, rather a CAUTION 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 dan- 
 gerous to liberty, and ought not to be raised or kept up WITHOUT THE 
 CONSENT OF THE LEGISLATURE " ; which is a formal admission of the 
 authority of the Legislature. New York has no bills of rights, and her 
 constitution says not a word about the matter. No bills of rights 
 appear annexed to the constitutions of the other States, except the fore- 
 going, 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. — PUBLIUS. 
 
Hamiltonl EXCESS OF CONFIDENCE. 153 
 
 the United States. If he happened to be a man of quick 
 sensibility or ardent temper, he could now no longer 
 refrain from regarding these clamors as the dishonest 
 artifices of a sinister and unprincipled opposition to 
 a plan which ought at least to receive a fair and candid 
 examination from all sincere lovers of their country! 
 How else, he would say, could the authors of them have 
 been tempted to vent such loud censures upon that plan, 
 about a point in which it seems to have conformed itself 
 to the general sense of America as declared in its dif- 
 ferent forms of government, and in which it has even 
 superadded a new and powerful guard unknown to any 
 of them? If, on the contrary, he happened to be a man 
 of calm and dispassionate feelings, he would indulge 
 a sigh for the frailty of human nature, and would lament 
 that, in a matter so interesting to the happiness of mil- 
 lions, the true merits of the question should be perplexed 
 and entangled by expedients so unfriendly to an impar- 
 tial and right determination. Even such a man could 
 hardly forbear remarking that a conduct of this kind 
 has too much the appearance of an intention to mislead 
 the people by alarming their passions, rather than 
 to convince them by arguments addressed to their 
 understandings. 
 
 But however little this objection may be countenanced, 
 even by precedents among ourselves, it may be satisfac- 
 tory to take a nearer view of its intrinsic merits. From 
 a close examination it will appear that restraints upon 
 the discretion of the legislature in respect to military 
 establishments in time of peace would be improper to 
 be imposed, and if imposed, from the necessities of 
 society, would be unlikely to be observed. 
 
 Though a wide ocean separates the United States from Europe, 
 yet there are various considerations that warn us against an 
 excess of confidence or security. On one side of us, and stretch- 
 ing 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 estabh.shments subject to 
 the dominion of Spain. This situation and the vicinity of the 
 West India Islands, belonging to these two powers, create between 
 
154 WESTERN GARRISONS. [No. 24 
 
 them, in respect to their American possessions and in relation to 
 us, a common interest. The savage tribes on our Western fron- 
 tier ought to be regarded as our natural enemies, their natural 
 allies, because they have most to fear from us, and most to hope 
 from them. The improvements in the art of navigation have, as 
 to the facility of communication, rendered distant nations, in 
 a great measure, neighbors. Britain and Spain are among the 
 principal maritime powers of Europe. A future concert of views 
 between these nations ought not to be regarded as improbable. 
 The increasing remoteness of consanguinity is every day diminish- 
 ing 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 Hnks of political connection. These 
 circumstances, combined, admonish us not to be too sanguine in 
 considering ourselves as entirely out of the reach of danger. 
 
 Previous to the Revolution, and ever since the peace, 
 there has been a constant necessity for keeping small 
 garrisons on our Western frontier. No person can doubt 
 that these will continue to be indispensable, if it should 
 only be against the ravages and depredations of the 
 Indians. These garrisons must either be furnished by 
 occasional detachments from the militia or by permanent 
 corps in the pay of the government. The first is imprac- 
 ticable; and, if practicable, would be pernicious. The 
 militia would not long, if at all, submit to be dragged 
 from their occupations and families to perform that most 
 disagreeable duty in times of profound peace. And if 
 they could be prevailed upon or compelled to do it, the 
 increased expense of a frequent rotation of service, and 
 the loss of labor and disconcertion of the industrious 
 pursuits of individuals, would form conclusive objections 
 to the scheme. It would be as burdensome and injurious 
 to the public as ruinous to private citizens. The latter 
 resource of permanent corps in the pay of the govern- 
 ment 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. 
 
Hamilton] MAW A NECESSITY. 155 
 
 In proportion to our increase in strength, it is probable, nay, it 
 may be said certain, that Britain and Spain would augment their 
 military establishments in our neighborhood. If we should not be 
 willing to be exposed, in a naked and defenseless condition, to 
 their insults and encroachments, we should find it expedient to 
 increase our frontier garrisons in some ratio to the force by which 
 our Western settlements might be annoyed. There are, and will 
 be, particular posts, the possession of which will include the com- 
 mand of large districts of territory, and facilitate future invasions 
 of the remainder. It may be added that some of those posts will 
 be keys to the trade with the Indian nations. Can any man think 
 it would be wise to leave such posts in a situation to be at any 
 instant seized by one or the other of two neighboring and formida- 
 ble 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 dockyards and arsenals; and for the defense of these, 
 fortifications and probably garrisons. When a nation 
 has become so powerful by sea that it can protect its 
 dockyards by its fleets, this supersedes the necessity of 
 garrisons for that purpose; but where naval establish- 
 ments are in their infancy, moderate garrisons will, in 
 all likelihood, be found an indispensable security against 
 descents for the destruction of the arsenals and dock- 
 yards, and sometimes of the fleet itself. Publius. 
 
156 PROTECTION TO STATES. [No. 26 
 
 No. 25. (A^sjo r(;>-,S/o«r«<i/, December 21, 1787.) Hamilton. 
 
 ■/ 
 
 NATIONAL FORCES COMPARED WITH STATE 
 FORCES. 
 
 Necessity of national control of army and navy — Situation of states as 
 regards foreign enemies — Critical position of New York — State govern- 
 ments natural rivals of the national — Likelihood that tjie people will 
 support their local government — The states restrained from standing 
 forces — Want of definition in proposed negative on standing armies — 
 Impossibility of a conspiracy between the executive and the legislative 
 departments — Actual effect of a prohibition on standing armies — Inade- 
 quacy of the militia — Recent experience of Pennsylvania and Massa- 
 chusetts — Experience of the Lacedcemonians. 
 
 To the People of the State of New York: 
 
 It may perhaps be urged that the objects enumerated 
 in the preceding number ought to be provided for by the 
 State governments, under the direction of the Union. 
 But this would be in reality an inversion of the primary 
 principle of our political association, as it would' in prac- 
 tice transfer the care of the common defense from the 
 federal head to the individual members: a project op- 
 pressive 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 differ- 
 ent degrees, is therefore common, and the means of guarding 
 against it ought, in like manner, to be the objects of common 
 councils and of a common treasury. It happens that some States, 
 from local situation, are more directly exposed. New York is of 
 this class. Upon the plan of separate provisions, New York 
 would have to sustain the whole weight of the establishments 
 requisite to her immediate safety, and to the mediate or ultimate 
 protection of her neighbors. This would neither be equitable as 
 it respected New York, nor safe as it respected the other States. 
 Various inconveniences would attend such a system. The States 
 to whose lot it might fall to support the necessary establishments 
 would be as little able as willing, for a considerable time to come, 
 to bear the burden of competent provisions, The security of all 
 
Hamilton] SAFETY IN NATIONAL FORCES. 157 
 
 would thus be subjected to the parsimony, improvidence, or ina- 
 bility, of a part. If the resources of such part becoming more 
 abundant and extensive, its provisions should be proportionably 
 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 power- 
 ful. They would each choose to have some counterpoise, and 
 pretenses could easily be contrived. In this situation, military 
 establishments, nourished by mutual jealousy, would be apt to 
 swell beyond their natural or proper size ; and being at the sepa- 
 rate disposal of the members, they would be engines for the 
 abridgment or demolition of the national authority. 
 
 Reasons have been already given to induce a supposi- 
 tion that the State governments will too naturally be 
 prone to a rivalship with that of the Union, the founda- 
 tion of which will be the love of power; and that in any 
 contest between the federal head and one of its members 
 the people will be most apt to unite with their local 
 government.' If, in addition to this immense advantage, 
 the ambition of the members should be stimulated by the 
 separate and independent possession of military forces, 
 it would afford too strong a temptation and too great a 
 facility to them to make enterprises upon, and finally to 
 subvert, the constitutional authority of the Union. On 
 the other hand, the liberty of the people would be less safe 
 in this state of things than in that which left the national 
 forces in the hands of the national government. As 
 far as an army may be considered as a dangerous weapon 
 of power, it had better be in those hands of which the 
 people are most likely to be jealous than in those of which 
 they are least likely to be jealous. For it is a truth 
 which the experience of ages has attested, that the 
 people are always most in danger when the means of 
 injuring their rights are in the possession of those of 
 whom they entertain the least suspicion. 
 
 ' This was proved to an extraordinary degree at the outbreak of the 
 Civil War. With what was practical unity, the people of each state 
 adhered to their section, and even national office-holders and the army 
 and navy officers of the South rarely failed, though they sometimes hesi- 
 itated, to violate their previously taken oaths of allegiance to th? 
 United States,— Editor, 
 
IS8 MAINTENANCE IN TIME OF PEACE. [No. 25 
 
 The framers of the existing Confederation, fully aware 
 of the danger to the Union from the separate possession 
 of military forces by the States, have, in express terms, 
 prohibited them from having either ships or troops, 
 unless with the consent of Congress.' The truth is 
 that the existence of a federal government and military 
 establishments under State authority are not less at vari- 
 ence 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 rais- 
 ing armies as well as to keeping them up in a season of 
 tranquillity or not. If it be confined to the latter, it will 
 have no precise signification and it will be ineffectual for 
 the purpose intended. When armies are once raised, 
 what shall be denominated " keeping them up," contrary 
 to the sense of the Constitution? What time shall be 
 requisite to ascertain the violation? Shall it be a week, 
 a month, a year? Or shall we say they may be continued 
 as long as the danger which occasioned their being raised, 
 continues? This would be to admit that they might be 
 kept up in time of peace, against threatening or impending 
 danger, which would be at once to deviate from the literal 
 meaning of the prohibition, and to introduce an exten- 
 sive latitude of construction. Who shall judge of the 
 continuance of the danger? This must undoubtedly be 
 submitted to the national government, and the matter 
 would then be brought to this issue, that the national 
 government, to provide against apprehended danger, 
 might in the first instance raise troops, and might after- 
 ward keep them on foot as long as they supposed the 
 peace or safety of the community was in any degree of 
 
 ' None the less. South Carolina in 1832 raised twelve thousand " volun- 
 teers " in her preparations to resist the general government. — Editor, 
 
Hamilton] MUTUAL DEFENSELESSNESS. iS9 
 
 jeopardy. It is easy to perceive that a discretion so lati- 
 tudinary as this would afford ample room for eluding the 
 force of the provision. 
 
 The supposed utility of a provision of this kind can 
 only be founded on the supposed probability, or at least 
 possibility, of a combination between the executive and 
 the legislative, in some scheme of usurpation. Should 
 this at any time happen, how easy would it be to fabri- 
 cate pretenses of approaching danger! Indian hostilities, 
 instigated by Spain or Britain, would always be at hand. 
 Provocations to produce the desired appearances might 
 even be given to some foreign power, and appeased again 
 by timely concessions. If we can reasonably presume 
 such a combination to have been formed, and that the 
 enterprise is warranted by a sufficient prospect of suc- 
 cess, the army, when once raised, from whatever cause, 
 or on whatever pretext, may be applied to the execution 
 of the project. 
 
 If, to obviate this consequence, it should be resolved 
 to extend the prohibition to the raising of armies in time 
 of peace, the United States would then exhibit the most 
 extraordinary spectacle which the world has yet seen — 
 that of a nation incapacitated by its Constitution to pre- 
 pare for defense before it was actually invaded. As the 
 ceremony of a formal denunciat'on of war has of late 
 fallen into disuse, the presence of an enemy within our 
 territories must be waited for, as the legal warrant to the 
 government to begin its levies of men for the protection 
 of the State. We must receive the blow before we could 
 even prepare to return it. All that kind of policy by 
 which nations anticipate distant danger and meet the 
 gathering storm must be abstained from as contrary to 
 the genuine maxims of a free government. We must 
 expose our property and liberty to the mercy of foreign 
 invaders and invite them by our weakness to seize the 
 naked and defenseless prey, because we are afraid that 
 rulers, created by our choice, dependent on our will, might 
 endanger that liberty by an abuse of the means necessary 
 to its preservation. 
 
i6o MILITIA IN-a£>EQUAT£. [No. 2S 
 
 Here I expect we shall be told that the militia of the 
 country is its natural bulwark, and would be at all times 
 equal to the national defense. This doctrine, in sub- 
 stance, had like to have lost us our independence. It 
 cost millions to the United States that might have been 
 saved. The facts which, from our own experience, for- 
 bid a reliance of this kind are too recent to permit us to 
 be the dupes of such a suggestion. The steady opera- 
 tions of war against a regular and disciplined army can 
 only be successfully conducted by a force of the same 
 kind. Considerations of economy, not less than of sta- 
 bility and vigor, confirm this position. The American 
 militia, in the course of the late war, have, by their valor 
 on numerous occasions, erected eternal monuments to 
 their fame; but the bravest of them feel and know that 
 the liberty of their country could not have been estab- 
 lished by their efforts alone, however great and valuable 
 they were. War, like most other things, is a science to 
 be acquired and perfected by diligence, by perseverance, 
 by time, and by practice. 
 
 All violent policy, as it is contrary to the natural and experi- 
 enced course of human affairs, defeats itself. Pennsylvania, at this 
 instant, affords an example of the truth of this remark. The Bill 
 of Rights of that State declares that standing armies are danger- 
 ous to liberty and ought ijot to be kept up in time of peace. 
 Pennsylvania, nevertheless, in a time of profound peace, from the 
 existence of partial disorders in one or two of her counties, has 
 resolved to raise a body of troops ; and in all probability will keep 
 them up as long as there is any appearance of danger to the public 
 peace.' The conduct of Massachusetts affords a lesson on the 
 same subject, though on different ground. That State (without 
 waiting for the sanction of Congress, as the articles of the Con- 
 federation require) was compelled to raise troops to quell a domes- 
 tic insurrection, and still keeps a corps in pay to prevent a revival 
 of the spirit of revolt.'' The particular constitution of Massachu- 
 setts opposed no obstacle to the measure ; but the instance is still 
 of use to instruct us that cases are likely to occur under our gov- 
 ernment, as well as under those of other nations, which will some- 
 
 ' The Wyoming controversy. — Editor. 
 ^ To suppress Shays's rebellion. — Editor. 
 
Hamilton] SUBTERFUGES. i6l 
 
 times render a military force in time of peace essential to the 
 security of the society, and that it is therefore improper in this 
 respect to control the legislative discretion. It also teaches us, in 
 its application to the United States, how little the rights of a feeble 
 government are likely to be respected, even by its own constitu- 
 ents. And it teaches us, in addition to the rest, how unequal 
 parchment provisions are to a struggle with public necessity. 
 
 It was a fundamental maxim of the Lacedaemonian common- 
 wealth that the post of admiral should not be conferred twice on 
 the same person. The Peloponnesian confederates, having suf- 
 fered a severe defeat at sea from the Athenians, demanded 
 Lysander, who had before served with success in that capacity, to 
 command the combined fleets. The Lacedeemonians, to gratify 
 their allies, and yet preserve the semblance of an adherence to 
 their ancient institutions, had recourse to the flimsy subterfuge of 
 investing Lysander with the real power of admiral, under the 
 nominal title of vice admiral. This instance is selected from 
 among a multitude that might be cited to confirm the truth 
 already advanced and illustrated by domestic examples ; which is, 
 that nations pay little regard to rules and maxims calculated in 
 their very nature to run counter to the necessities of society. Wise 
 politicians will be cautious about fettering the government with 
 restrictions that cannot be observed, because they know that every 
 breach of the fundamental laws, though dictated by necessity, 
 impairs that sacred reverence which ought to be maintained in the 
 breast of rulers toward the constitution of a country, and forms a 
 precedent for other breaches where the same plea of necessity 
 does not exist at all, or is less urgent and palpable. 
 
 PUBUUS. 
 
1 62 POWEk AND PRIVILEGE. [Ko. 26 
 
 No. 26. (.Independent Journal, 'Decsmhe!C2'2,xjij.) Hamilton. 
 
 ABSURDITY OF RESTRAINING THE LEGISLA- 
 TIVE AUTHORITY AS TO NATIONAL DE- 
 FENSE. 
 
 Popular revolutions not able to apportion power and privilege — The 
 restraint on legislatures as to defense in the state constitutions — General 
 decision of America opposed to such restraint — History of the restriction 
 on standing army in Great Britain — Present condition in that country — 
 A n hereditary prejudice to standing armies in A merica — The state constitu- 
 tions — Clause in constitutions of Pennsyldnia and North Carolina — Bien- 
 nial appropriations under the new constitution for army — Absurdity of 
 the predictions of the subversion of American liberty — Impossibility of 
 greatly augmenting the army — Danger from the executive — Danger all 
 the greater in a disunited state. 
 
 To the People of the State of New York: 
 
 It was a thing hardly to be expected that in a popular 
 revolution the minds of men should stop at that happy 
 mean which marks the salutary boundary between power 
 and PRIVILEGE, and combines the energy of government 
 with the security of private rights. A failure in this 
 delicate and important point is the great source of the 
 inconveniences we experience, and if we are not cautious 
 to avoid a repetition of the error in our future attempts 
 to rectify and ameliorate our system, we may travel from 
 one chimerical project to another; we may try change 
 after change; but we shall never be likely to make any 
 material change for the better. 
 
 The idea of restraining the legislative authority in the 
 means of providing for the national defense is one of 
 those refinements which owe their origin to a zeal for 
 liberty more ardent than enlightened. We have seen, 
 however, that it has not had thus far an extensive prev- 
 alency; that even in this country, where it made its 
 first appearance, Pennsylvania and North Carolina are 
 the only two States by which it has been in any degree 
 patronized; and that all the others have refused to give 
 
Hamilton] DANGEROUS EXTREMES. 163 
 
 it the. least countenance; wisely judging that confidence 
 must be placed somewhere; that the necessity of doing 
 it is implied in the very act of delegating power; and 
 that it is better to hazard the abuse of that confidence 
 than to embarrass the government and endanger the 
 public safety by impolitic restrictions on the legislative 
 authority. The opponents of the proposed Constitution 
 combat, in this respect, the general decision of America; 
 and, instead of being taught by experience the propriety 
 of correcting any extremes into which we may have here- 
 tofore run, they appear disposed to conduct us into 
 Others still more dangerous and more extravagant. As if 
 the tone of government had been found too high or too 
 rigid, the doctrines they teach are calculated to induce us 
 to depress or to relax it, by expedients which, upon other 
 occasions, have been condemned or forborne. It may be 
 affirmed, without the imputation of invective, that if the 
 principles they inculcate on various points could so far 
 obtain as to become the popular creed, they would utterly 
 unfit the people of this country for any species of govern- 
 ment whatever. But a danger of this kind is not to be 
 apprehended. The citizens of America have too much 
 discernment to be argued into anarchy. And I am much 
 mistaken, if experience has not wrought a deep and 
 solemn conviction in the public mind that greater energy 
 of government is essential to the welfare and prosperity 
 of the community. 
 
 It may not be amiss in this place concisely to remark 
 the origin and progress of the idea which aims at the 
 exclusion of military establishments in time of peace. 
 Though in speculative minds it may arise from a con- 
 templation of the nature and tendency of such institu- 
 tions, fortified by the events that have happened in other 
 ages and countries, yet as a national sentiment it must 
 be traced to those habits of thinking which we derive 
 from the nation from whom the inhabitants of these 
 States have in general sprung. 
 
 In England, for a long time after the Norman Conquest, the 
 authority of the monarch was almost unlimited. Inroads were 
 
f 64 STANDING ARMIES IN ENCLANt) [JTo. 26 
 
 gradually made upon the prerogative, in favor of liberty, first by 
 the barons, and afterwards by the people, till the greatest part of 
 its most formidable pretensions became extinct. But it was not 
 till the revolution in 1688, which elevated the Prince of Orange to 
 the throne of Great Britain, that English liberty was completely 
 triumphant. As incident to the undefined power of making war, 
 an acknowledged prerogative of the crown, Charles II. had by his 
 own authority kept on foot in time of peace a body of five thou- 
 sand regular troops. And this number James II. increased to 
 thirty thousand, who were paid out of his civil list. At the revo- 
 lution, to abolish the exercise of so dangerous an authority, it 
 became an article of the Bill of Rights then framed, that " the 
 raising or keeping a standing army within the kingdom in time of 
 peace, unless with the consent of Parliament, was against law." 
 
 In that kingdom, when the pulse of liberty was at its highest 
 pitch, no security against the danger of standing armies was 
 thought requisite, beyond a prohibition of their being raised or 
 kept up by the mere authority of the executive magistrate. The 
 patriots who effected that memorable revolution were too tem- 
 perate, too well informed, to think of any restraint on the legislative 
 discretion. They were aware that a certain number of troops for 
 guards and garrisons were indispensable ; that no precise bounds 
 could be set to the national exigencies ; that a power equal to 
 every possible contingency must exist somewhere in the govern- 
 ment ; and that when they referred the exercise of that power to 
 the judgment of the legislature, they had arrived at the ultimate 
 point of precaution which was reconcilable with the safety of the 
 community. 
 
 From the same source, the people of America may be 
 said to have derived an hereditary impression of danger 
 to liberty from standing armies in time of peace. The 
 circumstances of a revolution quickened the public 
 sensibility on every point connected with the security of 
 popular rights, and in some instances raised the warmth 
 of our zeal beyond the degree which consisted with the 
 due temperature of the body politic. The attempts of 
 two of the States to restrict the authority of the legisla- 
 ture, in the article of military establishments, are of the 
 number of these instances. The principles which had 
 taught us to be jealous of the power of an hereditary 
 monarch were, by an injudicious excess, extended to the 
 representatives of the people in their popular assemblies. 
 
aamiltfln] SILEN^CE 6P STATE LEGISLATURES 165 
 
 Even in some of the States where this error was not 
 adopted we find unnecessary declarations that standing 
 armies ought not to be kept up in time of peace, with- 
 out THE CONSENT OF THE LEGISLATURE. I Call them 
 
 unnecessary, because the reason which had introduced a 
 similar provision into the English Bill of Rights is not 
 applicable to any of the State constitutions. The power 
 of raising armies at all, under those constitutions, can by 
 no construction be deemed to reside anywhere else than 
 in the legislatures themselves; and it was superfluous, if 
 not absurd, to declare that a matter should not be done 
 without the consent of a body which alone had the 
 power of doing it. Accordingly, in some of those con- 
 stitutions, — and, among others, in that of this State 
 of New York, which has been justly celebrated both in 
 Europe and America as one of the best of the forms 
 of government established in this country, — there is a 
 total silence upon the subject. 
 
 It is remarkable that, even in the two States which 
 seem to have meditated an interdiction of military estab- 
 lishments in time of peace, the mode of expression made 
 use of is rather cautionary than prohibitory. It is not 
 said that standing armies shall not be kept up, but that they 
 ought not to be kept up, in time of peace. This ambiguity 
 of terms appears to have been the result of a conflict be- 
 tween jealousy and conviction; between the desire of 
 excluding such establishments at all events, and the per- 
 suasion that an absolute exclusion would be unwise and 
 unsafe. 
 
 Can it be doubted that such a provision, whenever the 
 situation of public affairs was understood to require a 
 departure from it, would be interpreted by the legisla- 
 ture into a mere admonition, and would be made to 
 yield to the necessities or supposed necessities of the 
 State? Let the fast already mentioned with respect to 
 gjg Pennsylvania decide. What then (it may be 
 
 No. 25. asked) is the use of such a provision, if it 
 
 cease to operate the moment there is an inclination to 
 disregard it? 
 
l66 PROVISIONS FOR MILITARY FORCES. Wo. 26 
 
 Let us examine whether there be any comparison, in 
 point of efficacy, between the provision alluded to and 
 that which is contained in the new Constitution, for 
 restraining the appropriations of money for military pur- 
 poses to the period of two years. The former, by aim- 
 ing at too much, is calculated to effect nothing; the 
 latter, by steering clear of an imprudent extreme and 
 by being perfectly compatible with a proper provision 
 for the exigencies of the nation, will have a salutary and 
 powerful operation. 
 
 The legislature of the United States will be obliged, by 
 this provision, once at least in every two years, to delib- 
 erate upon the propriety of keeping a military force on 
 foot; to come to a new resolution on the point; and to 
 declare their sense of the matter by a formal vote in the 
 face of their constituents. They are not at liberty to 
 vest in the executive department permanent funds for 
 the support of an army, if they were even incautious 
 enough to be willing to repose in it so improper a con- 
 fidence. As the spirit of party in different degrees 
 must be expected to infect all political bodies, there will 
 be, no doubt, persons in the national legislature willing 
 enough to arraign the measures and criminate the views 
 of the majority. The provision for the support of a 
 military force will always be a favorable topic for decla- 
 mation. As often as the question comes forward, the 
 public attention will be roused and attracted to the sub- 
 ject by the party in opposition; and if the majority 
 should be really disposed to exceed the proper limits, 
 the community will be warned of the danger, and will 
 have an opportunity of taking measures to guard against 
 it. Independent of parties in the national legislature 
 itself, as often as the period of discussion arrived, the 
 State legislatures, who will always be not only vigilant 
 but suspicious and jealous guardians of the rights of the 
 citizens against encroachments from the federal govern- 
 ment, will constantly have their attention awake to the 
 conduct of the national rulers, and will be ready enough, 
 if anything improper appears, to sound the alarm to the 
 
Hamilton] CONSPIRACY IMPROBABLE. 167 
 
 people, and not only to be the voice, but, if necessary, 
 the ARM of discontent. 
 
 Schemes to subvert the liberties of a great community 
 require time to mature them for execution. An army so 
 large as seriously to menace those liberties could only 
 be formed by progressive augmentations; which would 
 suppose, not merely a temporary combination between 
 the legislature and executive, but a continued conspiracy 
 for a series of time. Is it probable that such a combina- 
 tion would exist at all? Is it probable that it would be 
 persevered in, and transmitted along through all the 
 successive variations in a representative body, which 
 biennial elections would naturally produce in both 
 houses? Is it presumable that every man, the instant 
 he took his seat in the national Senate or House of 
 Representatives, would commence a traitor to his con- 
 stituents and to his country? Can it be supposed that 
 there would not be found one man discerning enough 
 to detect so atrocious a conspiracy, or bold or honest 
 enough to apprise his constituents of their danger? If 
 such presumptions can fairly be made, there ought at once 
 to be an end of all delegated authority. The people 
 should resolve 'to recall all the powers they have here- 
 tofore parted with out of their own hands, and to divide 
 themselves into as many States as there are counties, in 
 order that they may be able to manage their own con- 
 cerns in person. 
 
 If such suppositions could even be reasonably made, 
 still the concealment of the design for any duration 
 would be impracticable. It would be announced by the 
 very circumstance of augmenting the army to so great 
 an extent in time of profound peace. What colorable 
 reason could be assigned in a country so situated, for 
 such vast augmentations of the military force? It is 
 impossible that the people could be long deceived; and 
 the destruction of the project, and of the projectors, 
 would quickly follow the discovery. 
 
 It has been said that the provision which limits the 
 appropriation of money for the support of an army to 
 
l68 DANGER GREATER IN DISUNION. [No. 86 
 
 the period of two years would be unavailing, because the 
 Executive, when once possessed of a force large enough 
 to awe the people into submission, would find resources 
 in that very force sufficient to enable him to dispense 
 with supplies from the acts of the legislature. But the 
 question again recurs, upon what pretense could he be 
 put in possession of a force of that magnitude in time of 
 peace? If we suppose it to have been created in conse- 
 quence of some domestic insurrection or foreign war, 
 then it becomes a case not within the principles of the 
 objection; for this is leveled against the power of keep- 
 ing up troops in time of peace. Few persons will be so 
 visionary as seriously to contend that military forces 
 ought not to be raised to quell a rebellion or resist an 
 invasion; and if the defense of the community under 
 such circumstances should make it necessary to have an 
 army so numerous as to hazard its liberty, this is one of 
 those calamities for which there is neither preventative 
 nor cure. It cannot be provided against by any possible 
 form of government; it might even result from a simple 
 league offensive and defensive, if it should ever be neces- 
 sary for the confederates or allies to form an army for 
 common defense. 
 
 But it is an evil infinitely less likely to attend us in a 
 united than in a disunited state; nay, it may be safely 
 asserted that it is an evil altogether unlikely to attend 
 us in the latter situation. It is not easy to conceive a 
 possibility that dangers so formidable can assail the 
 whole Union as to demand a force considerable enough 
 to place our liberties in the least jeopardy, especially 
 if we take into our view the aid to be derived from the 
 militia, which ought always to be counted upon as a 
 valuable and powerful auxiliary. But in a state of dis- 
 union (as has been fully shown in another place), the 
 contrary of this supposition would become not only 
 probable, but almost unavoidable. 
 
 PUBLIUS, 
 
Hamilton] ALLEGED POPULAR DISAFFECTION. 169 
 
 No. 27. (iV>M< Kj>-/6 />«£■&<, December 2S, 1787.) Hamilton. 
 
 IMPOSSIBILITY OF A NATIONAL GOVERNMENT 
 WITHOUT A NATIONAL FORCE. 
 
 Alleged disinclination of the people to federal authority — A peoples 
 obedience to a government proportioned to its goodness or badness — Likeli- 
 hood that the general government will be better administered than the 
 governments of the states — Especial value of the national senate — Greater 
 power of the nation in controlling sedition and faction — Government 
 should be felt by citizens — Certainty that a union will need to employ 
 forceless often than separate confederacies — The general government able 
 to use ordinary legal processes — Peculiar advantage enjoyed by national 
 laws. 
 
 To the People of the State of New York: 
 
 It has been urged, in different shapes, that a Constitu- 
 tion of the kind proposed by the convention cannot 
 operate without the aid of a military force to execute its 
 laws. This, however, like most other things that have 
 been alleged on that side, rests on mere general assertion 
 unsupported by any precise or intelligible designation of 
 the reasons upon which it is founded. As far as I have 
 been able to divine the latent meaning of the objectors, 
 it seems to originate in a presupposition that the people 
 will be disinclined to the exercise of federal authority in 
 any matter of an internal nature. Waiving any exception 
 that might be taken to the inaccuracy or inexplicitness of 
 the distinction between internal and external, let us 
 inquire what ground there is to presuppose that disin- 
 clination in the people. Unless we presume at the same 
 time that the powers of the general government will be 
 worse administered than those of the State government, 
 there seems to be no room for the presumption of ill will, 
 disaffection, or opposition in the people. I believe it 
 may be laid down as a general rule that their confidence 
 in and obedience to a government will commonly be 
 proportioned to the goodness or badness of its adminis- 
 tration. It must be admitted that there are exceptions 
 to this rule; but these exceptions depend so entirely on 
 
lyo UNION TO BE WELL ADMINISTERED. [No. 87 
 
 accidental causes that they cannot be considered as 
 having any relation to the intrinsic merits or demerits of 
 a constitution. These can only be judged of by general 
 principles and maxims. 
 
 Various reasons have been suggested, in the course of 
 these papers, to induce a probability that the general 
 government will be better administered than the particular 
 governments: the principal of which reasons are that the 
 extension of the spheres of election will present a greater 
 option or latitude of choice to the people; that through 
 the medium of the State legislatures — which are select 
 bodies of men, and which are to appoint the members of 
 the national Senate — there is reason to expect that this 
 branch will generally be composed with peculiar care and 
 judgment; that these circumstances promise greater 
 knowledge and more extensive information in the national 
 councils, and that they will be less apt to be tainted 
 by the spirit of faction, and more out of the reach of 
 those occasional ill humors, or temporary prejudices and 
 propensities which, in smaller societies, frequently con- 
 taminate the public councils, beget injustice and oppres- 
 sion of a part of the community, and engender schemes 
 which, though they gratify a momentary inclination or 
 desire, terminate in general distress, dissatisfaction, and 
 disgust. Several additional reasons of considerable force 
 to fortify that probability will occur when we come to 
 survey with a more critical eye the interior structure of 
 the edifice which we are invited to erect. It will be 
 sufficient here to remark that, until satisfactory reasons 
 can be assigned to justify an opinion that the federal 
 government is likely to be administered in such a manner 
 as to render it odious or contemptible to the people, 
 there can be no reasonable foundation for the supposi- 
 tion that the laws of the Union will meet with any greater 
 obstruction from them, or will stand in need of any other 
 methods to enforce their execution, than the laws of the 
 particular members. 
 
 The hope of impunity is a strong incitement to sedition; 
 the dread of punishment, a proportionably strong dis- 
 
Hamilton] RESPECT FOR NATIONAL AUTHORITY. 171 
 
 couragement to it. Will not the government of the 
 Union — which, if possessed of a due degree of power, can 
 call to its aid the collective resources of the whole Con- 
 federacy — be more likely to repress ^& former sentiment 
 and to inspire the latter, than that of a single State, which 
 can only command the resources within itself? A turbu- 
 lent faction in a State may easily suppose itself able to 
 contend with the friends to the government in that State; 
 but it can hardly be so infatuated as to imagine itself a 
 match for the combined efforts of the Union. If this 
 reflection be just, there is less danger of resistance from 
 irregular combinations of individuals to the authority of 
 the Confederacy than to that of a single member.' 
 
 I will in this place hazard an observation which will 
 not be the less just because to some it may appear new: 
 which is that the more the operations of the national 
 authority are intermingled in the ordinary exercise of 
 government, the more the citizens are accustomed to 
 meet with it in the common occurrences of their political 
 life; the more it is familiarized to their sight and to their 
 feelings; thefurther.it enters into those objects which 
 touch the most sensible chords and put in motion the 
 most active springs of the human heart; the greater will 
 be the probability that it will conciliate the respect and 
 attachment of the community. Man is very much a 
 creature of habit. A thing that rarely strikes his senses 
 will generally have but little influence upon his mind. 
 A government continually at a distance and out of sight 
 
 1 This has been curiously shown by the distinction in the public mind 
 between " Regulars" and " Militia." In both the great railroad strikes 
 of 1877 and 1894 the rioters resisted bitterly the local militia, but with 
 the appearance of United States troops, though they numbered no more 
 than the militia, actual resistance ceased. The same circumstance was 
 shown in the London " unemployed-riots " of 1888, when the feeling 
 of the mob toward the police was exceedingly bitter ; but the moment 
 the Guards appeared, the angry rioters began to jolce with them. The 
 psychological difference between resisting local administration and resist- 
 ing the nation is enormous, for the less a man knows, the more he is 
 governed by his imagination. So long as secession was under discussion 
 as a constitutional question, the masses could take no part, but when 
 the flag was fired on, they understood the issue more clearly than many 
 of the leaders. — Editor. 
 
172 LESS NEED OF FORCE BY VIRION. [No. 27 
 
 can hardly be expected to interest the sensations of the 
 people.' The inference is that the authority of the 
 Union, and the affections of the citizens toward it, will 
 be strengthened rather than weakened by its extension 
 to what are called matters of internal concern; and will 
 have less occasion to recur to force, in proportion to the 
 familiarity and comprehensiveness of its agency. The 
 more it circulates through those channels and currents in 
 which the passions of mankind naturally flow, the less 
 will it require the aid of the violent and perilous expedi- 
 ents of compulsion. 
 
 One thing at all events must be evident, that a govern- 
 ment like the one proposed would bid much fairer to 
 avoid the necessity of using force than that species of 
 league contended for by most of its opponents, the 
 authority of which should only operate upon the States 
 in their political or collective capacities. It has been 
 ggg shown that in such a Confederacy there can 
 
 No. 16. be no sanction for the laws but force; that 
 
 frequent delinquencies in the members are the natural 
 
 ' This mental attitude furnishes the text to one of the most brilliant 
 sections of Bagehot's "English Constitution," in which he points out 
 that the government of England is dual, possessing a " dignified part " and 
 an " efificient part "; the former being supplied by the sovereign, and the 
 latter by the working administration. The dignified part, he maintains, 
 commands that loyalty and reverence by which alone the larger part 
 of the people is controlled ; the lack of this he considers a great 
 defect in Presidential government. Yet the example of Great Britain 
 itself during the Commonwealth, if not of France and the United 
 States, should have shown him that what truly commands the loyalty and 
 reverence of a people is the real nationality of which, in England, the 
 sovereign happens to be the most obvious expression. Seeley in his 
 " Life of Stein" draws the distinction that Napoleon was able repeatedly 
 to conquer Italy, Germany, and Austria because there was, in those coun- 
 tries at that time, no true sense of nationality ; but in Spain and Russia, 
 where the contrary was true. Napoleon failed signally. Yet all these 
 countries were equally equipped with royalty. How the sense of loyalty 
 has grown in the United States, not through reverence for a figurehead, 
 but through a greater and greater consciousness of actual nationality, is a 
 most interesting study. Von Hoist marvels at the outburst of ' ' worship 
 of the constitution " which developed almost with its adoption, and now- 
 adays there is much satirical writing about the sentiment for " the flag"; 
 yet each form of loyalty is but a surface expression of a far deeper feeling, 
 corresponding exactly to what Bagehot superficially believed to be merely 
 a reverence for the Queen. — Editor. 
 
Hamilton] EXECUTION- OP SUPREME LAW. 173 
 
 offspring of the very frame of the government; and that 
 as often as these happen, they can only be redressed, if 
 at all, by war and violence. 
 
 The plan reported by the convention, by extending the 
 authority of the federal head to the individual citizens of 
 the several States, will enable the government to employ 
 the ordinary magistracy of each in the execution of its 
 laws. It is easy to perceive that this will tend to destroy, 
 in the common apprehension, all distinction between the 
 sources from which they might proceed; and will give 
 the federal government the same advantage for securing 
 a due obedience to its authority which is enjoyed by the 
 government of each State, in addition to the influence on 
 public opinion which will result from the important con- 
 sideration of its having power to call to its assistance and 
 support the resources of the whole Union. It merits 
 particular attention in this place, that the laws of the 
 Confederacy, as to the enumerated and legitimate objects 
 of its jurisdiction, will become the supreme law of the 
 land, to the observance of which all officers — legislative, 
 executive, and judicial, in each State — will be bound by 
 the sanctity of an oath. Thus the legislatures, courts, 
 and magistrates of the respective members will be in- 
 corporated into the operations of the national government 
 as far as its just and constitutional authority extends, and 
 will be rendered auxiliary to the enforcement of its laws.* 
 Any man who will pursue by his own reflections the con- 
 sequences of this situation will perceive that there is 
 good ground to calculate upon a regular and peaceable 
 execution of the laws of the Union, if its powers are 
 administered with a common share of prudence. If we 
 will arbitrarily suppose the contrary, we may deduce any 
 inferences we please from the supposition; for it is cer- 
 tainly possible, by an injudicious exercise of the authori- 
 ties of the best government that ever was, or ever can be 
 instituted, to provoke and precipitate the people into 
 
 * The sophistry which has been employed, to show that this will tend 
 to the destruction of the State governments, will, in its proper place, be 
 fully detected. — Publius. 
 
174 MALADIES OF BODY POLITIC. [No. 28 
 
 the wildest excesses. But though the adversaries of the 
 proposed Constitution should presume that the national 
 rulers would be insensible to the motives of public good 
 or to the obligations of duty, I would still ask them how 
 the interests of ambition or the views of encroachment 
 can be promoted by such a conduct? 
 
 PUBLIUS. 
 
 No. 28. (/K<;<?>e«rf««;!/o«r«iiA December 26, 1787.) Hamilton. 
 
 CONDITIONS WHICH NECESSITATE A 
 NATIONAL FORCE. 
 
 Insurrections a malady inseparable from the body politic — An insur- 
 rection a danger to all government — Experience of Massachusetts and 
 Pennsylvania — New York versus Vermont — Separate confederacies subject 
 to same conditions as the Union — A full answer to objection is that the 
 power is in the hands of the representatives of the people — Certain success 
 of popular resistance to usurpation — Advantage of large territory and 
 of state government — Impossibility of a large standing army. 
 
 To the People of the State of New York: 
 
 That there may happen cases in which the national 
 government may be necessitated to resort to force, can- 
 not be denied. Our own experience has corroborated 
 the lessons taught by the examples of other nations; 
 that emergencies of this sort will sometimes arise in all 
 societies, however constituted; that seditions and insur- 
 rections are, unhappily, maladies as inseparable from the 
 body politic as tumors and eruptions from the natural 
 body; that the idea of governing at all times by the sim- 
 ple force of law (which we have been told is the only 
 admissible principle of republican government) has no 
 place but in the reveries of those political doctors whose 
 sagacity disdains the admonitions of experimental 
 instruction. 
 
 Should such emergencies at any time happen under 
 the national government, there could be no remedy but 
 force. The means to be employed must be proportioned 
 
Hamilton] LOCAL INSURRECTION. 175 
 
 to the extent of the mischief. If it should be a slight 
 commotion in a small part of a State, the militia of the 
 residue would be adequate to its suppression; and the 
 natural presumption is that they would be ready to do 
 their duty. An insurrection, whatever may be its imme- 
 diate cause, eventually endangers all government. Re- 
 gard to the public peace, if not to the rights of the Union, 
 would engage the citizens to whom the contagion 
 had not communicated itself, to oppose the insurgents; 
 and if the general government should be found in prac- 
 tice conducive to the prosperity and felicity of the 
 people, it were irrational to believe that they would be 
 disinclined to its support. 
 
 If, on the contrary, the insurrection should pervade a 
 whole State, or a principal, part of it, the employment of 
 a different kind of force might become unavoidable. It 
 appears that Massachusetts found it necessary to raise 
 troops for repressing the disorders within that State; 
 that Pennsylvania, from the mere apprehension of com- 
 motions among a part of her citizens, has thought proper 
 to have recourse to the same measure. Suppose the 
 State-of New York had been inclined to re-establish her 
 lost jurisdiction over the inhabitants of Vermont, could 
 she have hoped for success in such an enterprise from 
 the efforts of the militia alone? Would she not have 
 been compelled to raise and to maintain a more regular 
 force for the execution of her design? If it must then 
 be admitted that the necessity of recurring to a force 
 different from the militia, in cases of this extraordinary 
 nature, is applicable to the State governments them- 
 selves, why should the possibility that the national 
 government might be under a like necessity, in similar 
 extremities, be made an objection to its existence? Is it 
 not surprising that men who declare an attachment to 
 the Union in the abstract should urge as an objection 
 to the proposed Constitution what applies with tenfold 
 weight to the plan for which they contend; and what, as 
 far as it has any foundation in truth, is an inevitable con- 
 sequence of civil society upon an enlarged scale? Who 
 
176 INSUFFICIENCY OF MILITIA. [So. 28 
 
 would not prefer that possibility to the unceasing agita- 
 tions and frequent revolutions which are the continual 
 scourges of petty republics? 
 
 Let us pursue this examination in another light. Sup- 
 pose, in lieu of one general system, two, or three, or 
 even four Confederacies were to be formed, would not 
 the same difiSculty oppose itself to the operations of 
 either of these Confederacies? Would not each of them 
 be exposed to the same casualties; and when these hap- 
 pened, be obliged to have recourse to the same expedi- 
 ents for upholding its authority which are objected to in 
 a government for all the States? Would the militia, in 
 this supposition, be more ready or more able to support 
 the federal authority than in the case of a general union? 
 All candid and intelligent men must, upon due considera- 
 tion, acknowledge that the principle of the objection is 
 equally applicable to either of the two cases; and that, 
 whether we have one government for all the States, or 
 different governments for different parcels of them, or 
 even if there should be an entire separation of the States, ' 
 there might sometimes be a necessity to make use of a 
 force constituted differently from the militia, to preserve 
 the peace of the community and to maintain the just 
 authority of the laws against those violent invasions of 
 them which amount to insurrections and rebellions. 
 
 Independent of all other reasonings upon the subject, 
 it is a full answer to those who require a more peremp- 
 tory provision against military establishments in time 
 of peace, to say that the whole power of the proposed 
 government is to be in the hands of the representatives 
 of the people. This is the essential, and, after all, only 
 efficacious security for the rights and privileges of the 
 people which is attainable in civil society.* 
 
 If the representatives of the people betray their con- 
 stituents, there is then no resource left but in the 
 exertion of that original right of self-defense which is 
 
 * Its full efficacy will be examined hereafter. — Publius. 
 ' In the text of the edition of 1S02, "or if there should be as many- 
 unconnected governments as there are States." — Editor. 
 
Hamilton] USURPERS IN SINGLE STATE. 177 
 
 paramount to all positive forms of government, and 
 which against the usurpations of the national rulers may 
 be exerted with infinitely better prospect of success than 
 against those of the rulers of an individual state. In a 
 single state, if the persons intrusted with supreme power 
 become usurpers, the different parcels, subdivisions, or 
 districts of which it consists, having no distinct govern- 
 ment in each, can take no regular measures for defense. 
 The citizens must rush tumultuously to arms, without con- 
 cert, without system, without resource — except in their 
 courage and despair. The usurpers, clothed with the 
 forms of legal authority, can too often crush the opposi- 
 tion in embryo. The smaller the extent of the territory, 
 the more difficult will it be for the people to form a regu- 
 lar or systematic plan of opposition, and the more easy will 
 it be to defeat their early efforts. Intelligence can be 
 more speedily obtained of their preparations and move- 
 ments, and the military force in the possession of the 
 usurpers can be more rapidly directed against the part 
 where the opposition has begun. In this situation there 
 must be a peculiar coincidence of circumstances to insure 
 success to the popular resistance. 
 
 The obstacles to usurpation and the facilities of resist- 
 ance increase with the increased extent of the state, 
 provided the citizens understand their rights and are 
 disposed to defend them. The natural strength of the 
 people in a large community, in proportion to the arti- 
 ficial strength of the government, is greater than in a 
 small, and of course more competent to a struggle with 
 the attempts of the government to establish a tyranny. 
 But in a confederacy the people, without exaggeration, 
 may be said to be entirely the masters of their own fate. 
 Power being almost always the rival of power, the 
 general government will at all times stand ready to 
 check the usurpations of the state governments, and 
 these will have the same disposition towards the general 
 government. The people, by throwing themselves into 
 either scale, will infallibly make it preponderate. If 
 their rights are invaded by either, they can make use of 
 
178 EXTENT OF NATION A SECURITY. [No. 28 
 
 the other as the instrument of redress. How wise will 
 it be in them, by cherishing the union, to preserve to 
 themselves an advantage which can never be too highly 
 prized ! 
 
 It may safely be received as an axiom in our political 
 system that the State governments will, in all possible 
 contingencies, afford complete security against invasions 
 of the public liberty by the national authority. Projects 
 of usurpation cannot be masked under pretenses so 
 likely to escape the penetration of select bodies of men 
 as of the people at large. The legislatures will have 
 better means of information. They can discover the 
 danger at a distance; and possessing all the organs of 
 civil power, and the confidence of the people, they can 
 at once adopt a regular plan of opposition, in which they 
 can combine all the resources of the community. They 
 can readily communicate with each other in the different 
 States, and unite their common forces for the protection 
 of their common liberty. ' 
 
 The great extent of the country is a further security. 
 We have already experienced its utility against the 
 attacks of a foreign power. And it would have precisely 
 the same effect against the enterprises of ambitious rulers 
 in the national councils. If the federal army should be 
 able to quell the resistance of one State, the distant 
 States would have it in their power to make head with 
 fresh forces. The advantages obtained in one place 
 must be abandoned to subdue the opposition in others; 
 and the moment the part which had been reduced to sub- 
 mission was left to itself, its efforts would be renewed, 
 and its resistance revive. 
 
 ' This has been disproved in history. In the high tide of federalism 
 Sedgwick noted that the democrats were ' ' getting the State Govts 
 into their hands to play them like batteries on the U. S. govt," 
 but no united action could be secured. Frequently the state legis- 
 latures have protested against the action of the national government, 
 and have furthermore, when their own interests were at stake (as in the 
 Creek case), not scrupled to oppose by force the will of the national 
 government. But not once has a state come to the aid of another 
 actually resisting the national authority while still holding itself a mem- 
 ber of the Union. — Editor. 
 
Hamilton] LARGE ARMY IMPOSSIBLE. 179 
 
 We should recollect that the extent of the military 
 force must, at all events, be regulated by the resources 
 of the country. For a long time to come it will not be 
 possible to maintain a large army; and as the means of 
 doing this increase, the population and natural strength 
 of the community will proportionably increase. When 
 will the time arrive that the federal government can raise 
 and maintain an army capable of erecting a despotism 
 over the great body of the people of an immense empire, 
 who are in a situation, through the medium of their 
 State governments, to take measures for their own de- 
 fense, with all the celerity, regularity, and system of 
 independent nations? The apprehension may be con- 
 sidered as a disease, for which there can be found no 
 cure in the resources of argument and reasoning. 
 
 PUBLIUS. 
 
 No. 29 [35]-' (Independent Journal, January 8, 1788.) Hamilton. 
 
 THE POWER OF REGULATING THE MILITIA. 
 
 A natural incident to common defense — Uniformity in the militia 
 beneficial — Limited powers of national government concerning state 
 forces — Contention concerning posse comitatus — Absurdity of the militia 
 proving a danger if controlled by general government — Certain grievance 
 of frequent military exercises — Advantage of select corps — The states 
 certain to have a preponderant influence over the militia — Example of 
 publications against the constitution — Exaggerated suggestions concerning 
 misuse of militia — Conduct of militia in case of attempted despotism — The 
 general government alone able to use the militia to protect the states. 
 
 To the People of the State of New York: 
 
 The power of regulating the militia, and of command- 
 ing its services in times of insurrection and invasion, are 
 
 ' This essay appeared as No. XXXV. in the original publication in 
 the newspapers, and is therefore here misplaced chronologically. In 
 the collected edition of 1788, however, it is printed as No. XXIX., 
 which gives it its proper place according to subject, and for this reason 
 the order of the first edition has been followed. Henceforth similar 
 variations will be noted as above, — Editor, 
 
i8o UNIFORMITY OF MILITIA. [Ho. 89 (38) 
 
 natural incidents to the duties of superintending the 
 common defense, and of watching over the internal 
 peace of the Confederacy. 
 
 It requires no skill in the science of war to discern 
 that uniformity in the organization and discipline of the 
 militia would be attended with the most beneficial effects, 
 whenever they were called into service for the public 
 defense. It would enable them to discharge the duties 
 of the camp and of the field with mutual intelligence and 
 concert — an advantage of peculiar moment in the opera- 
 tions of an army; and it would fit them much sooner to 
 acquire the degree of proficiency in military functions 
 which would be essential to their usefulness. This de- 
 sirable uniformity can only be accomplished by confiding 
 the regulation of the militia to the direction of the 
 national authority. It is, therefore, with the most evi- 
 dent propriety that the plan of the convention proposes 
 to empower the Union "to provide for organizing, arm- 
 ing, and disciplining the militia, and for governing such 
 part of them as may be employed in the service of the 
 United States, reserving to the States respectively the appoint- 
 ment of the officers, and the authority of training the militia 
 according to the discipline prescribed by Congress." 
 
 Of the different grounds which have been taken in op- 
 position to the plan of the convention, there is none that 
 was so little to have been expected, or is so untenable in 
 itself, as the one from which this particular provision 
 has been attacked. If a well-regulated militia be the 
 most natural defense of a free country, it ought certainly 
 to be under the regulation and at the disposal of that 
 body which is constituted the guardian of the national 
 security. If standing armies are dangerous to liberty, 
 an efficacious power over the militia, in the body to whose 
 care the protection of the State is committed, ought as 
 far as possible to take away the inducement and the pre- 
 text to such unfriendly institutions. If the federal 
 government can command the aid of the militia in those 
 emergencies which call for the military arm in support 
 of the civil magistrate, it can the better dispense with 
 
Hamilton} POSSE COMITATUS. i8i 
 
 the employment of a different kind of force. If it cannot 
 avail itself of the former, it will be obliged to recur to 
 the latter. To render an army unnecessary will be a 
 more certain method of preventing its existence than a 
 thousand prohibitions upon paper. 
 
 In order to cast an odium upon the power of calling 
 forth the militia to execute the laws of the Union, it has 
 been remarked that there is nowhere any provision in 
 the proposed Constitution for calling out the posse comi- 
 TATUS, to assist the magistrate in the execution of his 
 duty; whence it has been inferred that military force 
 was intended to be his only auxiliary. There is a strik- 
 ing incoherence in. the objections which have appeared, 
 and sometimes even from the same quarter, not much 
 calculated to inspire a very favorable opinion of the sin- 
 cerity or fair dealing of their authors. The same persons 
 who tell us, In one breath, that the powers of the federal 
 government will be despotic and unlimited, inform us, in 
 the next, that it has not authority suflScient even to call 
 out the POSSE COMITATUS. The latter, fortunately, is as 
 much short of the truth as the former exceeds it. It 
 would be as absurd to doubt that a right to pass all laws 
 necessary and proper to execute its declared powers would 
 include that of requiring the assistance of the citizens to 
 the officers who may be intrusted with the execution of 
 those laws, as it would be to believe that a right to enact 
 laws necessary and proper for the imposition and collec- 
 tion of taxes would involve that of varying the rules of 
 descent and of the alienation of landed property, or of 
 abolishing the trial by jury in cases relating to it. It 
 being therefore evident that the supposition of a want of 
 power to require the aid of the posse comitatus is 
 entirely destitute of color, it will follow that the conclu- 
 sion which has been drawn from it, in its application 'to 
 the authority of the federal government over the militia, 
 is as uncandid as it is illogical. What reason could 
 there be to infer that force was intended to be the sole 
 instrument of authority, merely because there is a power 
 to make use of it when necessary? What shall we think 
 
1 82 DISCIPLINE OF MILITIA. [No. 29 (85) 
 
 of the motives which could induce men of sense to reason 
 in this manner? How shall we prevent a conflict between 
 charity and judgment? 
 
 By a curious refinement upon the spirit of republican 
 jealousy, we are even taught to apprehend danger from 
 the militia itself, in the hands of the federal government. 
 It is observed that select corps may be formed, com- 
 posed of the young and ardent, who may be rendered 
 subservient to the views of arbitrary power.' What plan 
 for the regulation of the militia may be pursued by the 
 national government is impossible to be foreseen. But 
 so far from viewing the matter in the same light with 
 those who object to select corps as dangerous, were the 
 Constitution ratified, and were I to deliver my sentiments 
 to a member of the federal legislature from this State on 
 the subject of a militia establishment, I should hold to 
 him, in substance, the following discourse : 
 
 " The project of disciplining all the militia of the United 
 States is as futile as it would be injurious, if it were capa- 
 ble of being carried into execution. A tolerable expert- 
 ness in military movements is a business that requires 
 time and practice. It is not a day, or even a week, that 
 will suffice for the attainment of it. To oblige the great 
 body of the yeomanry, and of the other classes of the 
 citizens, to be under arms for the purpose of going 
 through military exercises and evolutions, as often as 
 
 ' In 1805 Jefferson proposed this very scheme of a classified militia, 
 and wag so eager for it that he drafted a bill, and endeavored to force it 
 through Congress (see " Writings of Jefferson," Ford's edition, viii. 409), 
 but it was defeated by his own party, through fear of the uses to which 
 the "young and ardent "might be put. The unpopularity of the war 
 of 1812 served largely to make ridiculous and break down the old 
 militia laws, which compelled universal drill once or twice a year ; and 
 this feeling slowly extended throughout the country, until at the begin- 
 ning of the Civil War little was left of the old idea of a manhood militia. 
 Finally the older method has been entirely superseded by a volunteer 
 militia made up almost wholly of the "young and ardent," and with this 
 development has come the very improvement here suggested, for the new 
 National Guard, unlike the old country militia, have become not merely 
 expert troops, but have, in proportion to their improved discipline, sunk 
 their "local " views and prejudices in an esprit de corps which has made 
 the best of them as trustworthy as regulars in quelling the discontent of 
 their own neighborhoods. — Editor. 
 
Hamilton] SUBSTITUTE FOR STANDING ARMY. 183 
 
 might be necessary to acquire the degree of perfection 
 which would entitle them to the-character of a well-regu- 
 lated militia, would be a real grievance to the people, 
 and a serious public inconvenience and loss. It would 
 form an annual deduction from the productive labor of 
 the country, to an amount which, calculating upon the 
 present numbers of the people, would not fall far short 
 of the whole expense of the civil establishments of all 
 the States. To attempt a thing which would abridge the 
 mass of labor and industry to so considerable an extent 
 would be unwise: and the experiment, if made, could not 
 succeed, because it would not long be endured. Little 
 more can reasonably be aimed at, with respect to the 
 people at large, than to have them properly armed and 
 equipped; and in order to see that this be not neglected, 
 it will be necessary to assemble them once or twice in 
 the course of a year. 
 
 "But though the scheme of disciplining the whole 
 nation must be abandoned as mischievous or impractica- 
 ble; yet it is a matter of the utmost importance that a 
 well-digested plan should, as soon as possible, be adopted 
 for the proper establishment of the militia. The atten- 
 tion of the government ought particularly to be directed 
 to the formation of a select corps of moderate extent, 
 upon such principles as will really fit them for service in 
 case of need. By thus circumscribing the plan, it will be 
 possible to have an excellent body of well-trained militia, 
 ready to take the field whenever the defense of the State 
 shall require it. This will not only lessen the call for 
 military establishments, but if circumstances should at 
 any time oblige the government to form an army of any 
 magnitude, that army can never be formidable to the 
 liberties of the people while there is a large body of 
 citizens, little, if at all, inferior to them in discipline and 
 the use of arms, who stand ready to defend their own 
 rights and those of their fellow-citizens. This appears 
 to me the only substitute that can be devised for a stand- 
 ing army, and the best possible security against it, if it 
 should exist." 
 
184 APPOINTMENT OF OFFICERS. [No. 29(36) 
 
 Thus differently from the adversaries of the proposed 
 Constitution should I reason on the same subject, 
 deducing arguments of safety from the very sources 
 which they represent as fraught with danger and perdi- 
 tion. But how the national legislature may reason on the 
 point, is a thing which neither they nor I can foresee. 
 
 There, is something so far-fetched and so extravagant 
 in the idea of danger to liberty from the militia, that one 
 is at a loss whether to treat it with gravity or with 
 raillery; whether to consider it as a mere trial of skill, 
 like ,the paradoxes of rhetoricians; as a disingenuous 
 artifice to instill prejudices at any price; or as the serious 
 offspring of political fanaticism. Where, in the name of 
 common sense, are our fears to end if we may not trust 
 our sons, our brothers, our neighbors, our fellow-citizens? 
 What shadow of danger can there be from men who are 
 daily mingling with the rest of their countrymen, and 
 who participate with them in the same feelings, senti- 
 ments, habits, and interests? What reasonable cause of 
 apprehension can be inferred from a power in the Union 
 to prescribe regulations for the militia, and to command, 
 its services when necessary, while the particular States 
 are to have the sole and exclusive appointment of the officers? 
 If it were possible seriously to indulge a jealousy of the 
 militia upon any conceivable establishment under the 
 federal government, the circumstance of the officers 
 being in the appointment of the States ought at once to 
 extinguish it. There can be no doubt that this cir- 
 cumstance will always secure to them a preponderating 
 influence over the militia. 
 
 In reading many of the publications against the Con- 
 stitution, a man is apt to imagine that he is perusing 
 some ill-written tale or romance, which, instead of 
 natural and agreeable images, exhibits to the mind noth- 
 ing but frightful and distorted shapes — 
 
 " Gorgons, hydras, and chimeras dire "; 
 
 discoloring and disfiguring whatever it represents, and 
 transforming everything it touches into a monster. 
 
Hamilton] MISUSE OF MILITIA. 185 
 
 A sample of this is to be observed in the exaggerated 
 and improbable suggestions which have taken place 
 respecting the power of calling for the services of the 
 militia. That of New Hampshire is to be marched to 
 Georgia, of Georgia to New Hampshire, of New York to 
 Kentucky, and of Kentucky to Lake Champlain. Nay, 
 the debts due to the French and Dutch are to be paid in 
 militiamen instead of louis d'ors and ducats. At one 
 moment there is to be a large army to lay prostrate the 
 liberties of the people; at another moment the militia of 
 Virginia are to be dragged from their homes five or six 
 hundred miles to tame the republican contumacy of 
 Massachusetts; and that of Massachusetts is to be trans- 
 ported an equal distance to subdue the refractory 
 haughtiness of the aristocratic Virginians, Do the per- 
 sons who rave at this rate imagine that their art or their 
 eloquence can impose any conceits or absurdities upon 
 the people of America for infallible truths? ' 
 
 If there should be an army to be made use of as the 
 engine of despotism, what need of the militia? If there 
 should be no army, whither would the militia, irritated 
 by being called upon to undertake a distant and hopeless 
 expedition for the purpose of riveting the chains of 
 slavery upon a part of their countrymen, direct their 
 
 ' The history of our militia has shown how useless it is to employ them 
 in any object of which they do not approve. In 1794 the Governor of 
 Pennsylvania notified the President that it would be impossible to crush 
 the whisky insurrection with the local militia, for they too strongly 
 sympathized with the movement to be trusted to quell it. The refusal 
 of the militia of New York to invade Canada in 1812, and the whole 
 course of the New England militia during the war of 1812, were still more 
 striking. In 1861, while certain northern states voluntarily offered their 
 whole militias to the national government, the President's call upon the 
 states for seventy-five thousand men drove certain states which had hither- 
 to remained passive into secession, and though certain border states did 
 not take this extreme action, they paid no heed to the call, and it is to be 
 questioned if this was any loss to the effectual strength. As already 
 noted, the new National Guard is far less influenced by local sentiment ; 
 but that some of the old virus still lingers in certain sections was shown 
 in the great railroad strike of 1894, when certain California regiments, 
 called out to protect the extremely unpopular Southern Pacific Railroad, 
 not merely neglected to defend the road , but, it was even alleged, actually 
 aided the strikers in the destruction of property. — Editor. 
 
1 86 MUTUAL SUCCOR TO STATES. [No. 29(35) 
 
 course, but to the seat of the tyrants who had meditated 
 so foolish as well as so wicked a project, to crush them 
 in their imagined intrenchments of power, and to make 
 them an example of the just vengeance of an abused and 
 incensed people? Is this the way in which usurpers 
 stride to dominion over a numerous and enlightened 
 nation? Do they begin by exciting the detestation of 
 the very instruments of their intended usurpations? Do 
 they usually commence their career by wanton and dis- 
 gustful acts of power, calculated to answer no end but 
 to draw upon themselves universal hatred and execra- 
 tion? Are suppositions of this sort the sober admoni- 
 tions of discerning patriots to a discerning people? Or 
 are they the inflammatory ravings of incendiaries or 
 distempered enthusiasts? If we were even to suppose 
 the national rulers actuated by the most ungovernable 
 ambition, it is impossible to believe that they would 
 employ such preposterous means to accomplish their 
 designs. 
 
 In times of insurrection or invasion, it would be 
 natural and proper that the militia of a neighboring State 
 should be marched into another, to resist a common 
 enemy, or to guard the republic against the violence of 
 faction or sedition. This was frequently the case, in 
 respect to the first object, in the course of the late war; 
 and this mutual succor is, indeed, a principal end of our 
 political association. If the power of affording it be 
 placed under the direction of the Union, there will be no 
 danger of a supine and listless inattention to the dangers 
 of a neighbor till its near approach had superadded the 
 incitements of self-preservation to the too feeble im- 
 pulses of duty and sympathy. 
 
 PUBLIUS. 
 
Hamilton] NATIONAL REVENUE NEEDED. 187 
 
 No. 30 [29]. (■'Veil' York Packet, December 28, 1787.) Hamilton. 
 
 GENERAL POWER OF NATIONAL TAXATION. 
 
 National needs for revenue — Money the vital requisite in government 
 — Evils resulting from lack of revenue — Example of the Turkish 
 empire — Example in breakdown of confederation — Revenue unlimited 
 under articles of confederation — Erroneous principles in that compact — 
 Consequences of the system — A remedy in abandonment of quotas and 
 requisitions — T'he wished-for distinction between internal and external 
 taxes — The fundamental principle of national government — The resources 
 of a nation equal to its necessities — Proposition to supply the deficiencies 
 in external taxes by requisition — Result of limited taxation in times of 
 iva> — The national government should possess an unrestrained power of 
 taxation — The power of taxation a certain means of borrowing. 
 
 To the People of the State of New York: 
 
 It has been already observed that the federal govern- 
 ment ought to possess the power of providing for the 
 support of the national forces; in which proposition was 
 intended to be included the expense of raising troops, of 
 building and equipping fleets, and all other expenses in 
 any wise conftected with military arrangements and 
 operations. But these are not the only objects to which 
 the jurisdiction of the Union, in respect to revenue, 
 must necessarily be empowered to extend. It must 
 embrace a provision for the support of the national civil 
 list; for the payment of the national debts contracted, 
 or that may be contracted; and in general, for all those 
 matters which will call for disbursements out of the 
 national treasury. The conclusion is that there must be 
 interwoven in the frame of the government a general 
 power of taxation, in one shape or another. 
 
 Money is with propriety considered as the vital prin- 
 ciple of the body politic; as that which sustains its life 
 and motion, and enables it to perform its most essential 
 functions. A complete power, therefore, to procure a 
 regular and adequate supply of it, as far as the resources 
 of the community will permit, may be regarded as an 
 indispensable ingredient in every constitution. From a 
 
1 88 CONFEDERATION INADEQUATE. [No. 30 (29) 
 
 deficiency in this particular, one of two evils must ensue: 
 either the people must be subjected to continual plunder 
 as a substitute for a more eligible mode of supplying the 
 public wants, or the government must sink into a fatal 
 atrophy, and, in a short course of time, perish. 
 
 In the Ottoman or Turkish empire, the sovereign, 
 though in other respects absolute master of the lives and 
 fortunes of his subjects, has no right to impose a new 
 tax. The consequence is that he permits the bashaws or 
 governors of provinces to pillage the people without 
 mercy; and, in turn, squeezes out of them the sums of 
 which he stands in need to satisfy his own exigencies and 
 those of the state. In America, from a like cause, the 
 government of the Union has gradually dwindled into a 
 state of decay approaching nearly to annihilation. Who 
 can doubt that the happiness of the people in both coun- 
 tries would be promoted by competent authorities in the 
 proper hands, to provide the revenues which the neces- 
 sities of the public might require? 
 
 The present Confederation, feeble as it is, intended to 
 repose in the United States an unlimited power of pro- 
 viding for the pecuniary wants of the Union. But 
 proceeding upon an erroneous p*rinciple, it has been done 
 in such a manner as entirely to have frustrated the 
 intention. Congress, by the articles which compose that 
 compact (as has already been stated), are authorized to 
 ascertain and call for any sums of money necessary, in 
 their judgment, to the service of the United States; and 
 their requisitions, if comformable to the rule of apportion- 
 ment, are in every constitutional sense obligatory upon 
 the States. These have no right to question the propriety 
 of the demand; no discretion beyond that of devising the 
 ways and means of furnishing the sums demanded. But 
 though this be strictly and truly the case; though the 
 assumption of such a right would be an infringement of 
 the articles of Union; though it may seldom or never 
 have been avowedly claimed, yet in practice it has been 
 constantly exercised, and would continue to ,be so, as 
 long as the revenues of the Confederacy should remain 
 
Hamilton] THEORIES OF TAXATION. 189 
 
 dependent on the intermediate agency of its members. 
 What the consequences of this system have been is 
 within the knowledge of every man the least conversant 
 in our public affairs, and has been amply unfolded in dif- 
 ferent parts of these inquiries. It is this which has 
 chiefly contributed to reduce us to a situation which 
 affords ample cause both of mortification to ourselves 
 and of triumph to our enemies. 
 
 What remedy can there be for this situation, but in a 
 change of the system which has produced it — in a change 
 of the fallacious and delusive system of quotas and 
 requisitions? What substitute can there be imagined for 
 this ignis fatuus in finance, but that of permitting the na- 
 tional government to raise its own revenues by the ordi- 
 nary methods of taxation authorized in every well-ordered 
 constitution of civil government? Ingenious men may 
 declaim with plausibility on any subject; but no human 
 ingenuity can point out any other expedient to rescue 
 us from the inconveniences and embarrassments naturally 
 resulting from defective supplies of the public treasury. 
 
 The more intelligent adversaries of the new Constitu- 
 tion admit the force of this reasoning; but they qualify 
 their admission by a distinction between what they call 
 internal and external taxation. The former they would 
 reserve to the State governments; the latter, which they 
 explain into commercial imposts, or rather duties on 
 imported articles, they declare themselves willing to con- 
 cede to the federal head. This distinction, however, 
 would violate the maxim of good sense and sound policy 
 which dictates that every power ought to be in propor- 
 tion to its OBJECT; and would still leave the general 
 government in a kind of tutelage to the State govern- 
 ments, inconsistent with every idea of vigor or efficiency. 
 Who can pretend that commercial imposts are, or would 
 be, alone equal to the present and future exigencies of 
 the Union? Taking into the account the existing debt, 
 foreign and domestic, upon any plan of extinguishment 
 which a man moderately impressed with the importance 
 of public justice and public credit could approve, in 
 
190 REQUISITIONS UPON STATES. [No. 30 (39) 
 
 addition to the establishments which all parties will 
 acknowledge to be necessary, we could not reasonably 
 flatter ourselves that this resource alone, upon the most 
 improved scale, would even suffice for its present neces- 
 sities. Its future necessities admit not of calculation 
 or limitation; and upon the principle, more than once 
 adverted to, the power of making provision for them as 
 they arise ought to be equally unconfined. I believe it 
 may be regarded as a position warranted by the history of 
 mankind, that, in the usual progress of things, the necessities 
 of a nation, in every stage of its existence, will be found at 
 least equal to its resources. 
 
 To say that deficiencies may be provided for by requisi- 
 tions upon the States is on the one hand to acknowledge 
 that this system cannot be depended upon, and on the 
 other hand to depend upon it for everything beyond a 
 certain limit. Those who have carefully attended to its 
 vices and deformities, as they have been exhibited by 
 experience or delineated in the course of these papers, 
 must feel invincible repugnancy to trusting the national 
 interests in any degree to its operation. Its inevitable 
 tendency, whenever it is brought into activity, must be to 
 enfeeble the Union and sow the seeds of discord and con- 
 tention between the federal head and its members, and 
 between the members themselves. Can it be expected 
 that the deficiencies would be better supplied in this 
 mode than the total wants of the Union have heretofore 
 been supplied in the same mode? It ought to be recol- 
 lected that if less will be required from the States, they 
 will have proportionably less means to answer the 
 demand. If the opinions of those who contend for the 
 distinction which has been mentioned were to be 
 received as evidence of truth, one would be led to 
 conclude that there was some known point in the 
 economy of national affairs at which it would be safe to 
 stop and to say: Thus far the ends of public happiness 
 will be promoted by supplying the wants of government, 
 and all beyond this is unworthy of our care or anxiety. 
 How is it possible that a government half supplied and 
 
Hamiitoni REVENUE IN CASE OF WAR. Igt 
 
 always necessitous can fulfill the purposes of its institu- 
 tion, can provide for the security, advance the pros- 
 perity, 0r support the reputation of the commonwealth? 
 How can it ever possess either energy or stability, 
 dignity or credit, confidence at home or respectability 
 abroad? How can its administration be anything else 
 than a succession of expedients temporizing, impotent, 
 disgraceful? How will it be able to avoid a frequent 
 sacrifice of its engagements to immediate necessity? 
 How can it undertake or execute any liberal or enlarged 
 plans of public good? 
 
 Let us attend to what would be the effects of this 
 situation in the very first war in which we should happen 
 to be engaged. We will presume, for argument's sake, 
 that the revenue arising from the i?npost duties answers 
 the purposes of a provision for the public debt and of a 
 peace establishment for the Union. Thus circumstanced, 
 a war breaks out.' What would be the probable conduct 
 of the government in such an emergency? Taught by 
 experience that proper dependence could not be placed 
 on the success of requisitions, unable by its own 
 authority to lay hold of fresh resources, and urged by 
 considerations of national danger, would it not be driven 
 to the expedient of diverting the funds already appro- 
 priated from their proper objects to the defense of the 
 State? It is not easy to see how a step of this kind could 
 be avoided; and if it should be taken, it is evident that 
 it would prove the destruction of public credit at the 
 very moment that it was becoming essential to the public 
 safety. To imagine that at such a crisis credit might be 
 dispensed with, would be the extreme of infatuation. In 
 the modern system of war nations the most wealthy are 
 obliged to have recourse to large loans. A country so 
 little opulent as ours must feel this necessity in a much 
 stronger degree. But who would lend to a government 
 
 ' This was well proved by the war of 1812, when, owing to the inter- 
 ruption of commerce, and especially to the blockade, the imports fell off 
 to such an extent as made the duties wholly inadequate to the ordinary 
 expenses of government, far more inadequate to those entailed by a state 
 of war. — Editor. 
 
i02 POWER To TAkA MEAIfS TO BORROW. [No. 30 (2d) 
 
 that prefaced its overtures for borrowing by an act which 
 demonstrated that no reliance could be placed on the 
 steadiness of its measures for paying? The loans it 
 might be able to procure would be as limited in their 
 extent as burdensome in their conditions. They would 
 be made upon the same principles that usurers commonly 
 lend to bankrupt and fraudulent debtors — with a sparing 
 hand and at enormous premiums. 
 
 It may perhaps be imagined that, from the scantiness 
 of the resources of the country, the necessity of divert- 
 ing the established funds, in the case supposed, would 
 exist, though the national government should possess an 
 unrestrained power of taxation. But two considerations 
 will serve to quiet all apprehension on this head: one is 
 that we are sure the resources of the community, in their 
 full extent, will be brought into activity for the benefit of 
 the Union; the other is that whatever deficiencies there 
 may be can without difiSculty be supplied by loans. 
 
 The power of creating new funds upon new objects of 
 taxation, by its own authority, would enable the national 
 government to borrow as far as its necessities might re- 
 quire. Foreigners, as well as the citizens of America, could 
 then reasonably repose confidence in its engagements; 
 but to depend upon a government that must itself depend 
 upon thirteen other governments for the means of fulfilling 
 its contracts, when once its situation is clearly understood, 
 would require a degree of credulity not often to be met 
 with in the pecuniary transactions of mankind, and little 
 reconcilable with the usual sharp-sightedness of avarice. 
 
 Reflections of this kind may have trifling weight with 
 men who hope to see realized in America the halcyon 
 scenes of the poetic or fabulous age; but to those who 
 believe we are likely to experience a common portion of 
 the vicissitudes and calamities which have fallen to the 
 lot of other nations, they must appear entitled to serious 
 attention. Such men must behold the actual situation of 
 their country with painful solicitude, and deprecate the 
 evils which ambition or revenge might, with too much 
 facility, inflict upon it. Publius. 
 
Hamilton] ""POLITICAL AXIOMS. 193 
 
 No. 31 [30]. (New York Packet, January i, 1788.) Hamilton. 
 
 UNLIMITED NATIONAL TAXATION NOT A 
 ROAD TO DESPOTISM. 
 
 Principles of logic applied to the necessity of general power of tax- 
 ation — Recapitulation of the necessity of unlimited national revenues — 
 View of the opponents of the constitution — Necessity of revenue for local 
 administration — Probable absorption of all taxation by national govern- 
 ment — Improbability of usurpations by the federal government — Why not 
 in state governments as well? — Disposition of the state governments to en- 
 croach on the Union — State governments will probably possess most influ- 
 ence over people — The people alone can preserve the equilibrium between 
 the general and state government. 
 
 To the People of the State of New York : 
 
 In disquisitions of every Icind there are certain primary truths 
 or first principles, upon which all subsequent reasonings must 
 depend. These contain an internal evidence which, antecedent to 
 all reflection or combination, commands the assent of the mind. 
 Where it produces not this effect, it must proceed either from some 
 defect or disorder in the organs of perception, or from the influ- 
 ence of some strong interest, or passion, or prejudice. Of this 
 nature are the maxims in geometry, that " the whole is greater than 
 its part ; things equal to the same are equal to one another ; two 
 straight lines cannot inclose a space ; and all right angles are 
 equal to each other." Of the same nature are these other maxims 
 in ethics and politics, that there cannot be an effect without a 
 cause ; that the means ought to be proportioned to the end ; that 
 every power ought to be commensurate with its object ; that there 
 ought to be no limitation of a power destined to effect a purpose 
 which is itself incapable of limitation. And there are other truths 
 in the two latter sciences which, if they cannot pretend to rank in 
 the class of axioms, are yet such direct inferences from them, and 
 so obvious in themselves, and so agreeable to the natural and 
 unsophisticated dictates of common sense, that they challenge the 
 assent of a sound and unbiased mind with a degree of force and 
 conviction almost equally irresistible. 
 
 The objects of geometrical inquiry are so entirely abstracted 
 from those pursuits which stir up and put in motion the unruly pas- 
 sions of the human heart, that mankind, without difficulty, adopt 
 not only the more simple theorems of the science but even those 
 abstruse paradoxes which, however they may appear susceptible 
 
194 GENEkAL POWeH OF TAXATION. [ITo. 31 (SO) 
 
 of demonstration, are at variance with the natural conceptions 
 which the mind, without the aid of philosophy, would be led to 
 entertain upon the subject. The infinite divisibility of mat- 
 ter, or, in other words, the infinite divisibility of a finite 
 thing, extending even to the minutest atom, is a point agreed 
 among geometricians, though not less incomprehensible to com- 
 mon sense than any of those mysteries in religion against which 
 the batteries of infidelity have been so industriously leveled. 
 
 But in the sciences of morals and politics men are found far less 
 tractable. To a certain degree it is right and useful that this 
 should be the case. Caution and investigation are a necessary 
 armor against erroi" and imposition. But this untractableness may 
 be carried too far, and may degenerate into obstinacy, perverseness, 
 or disingenuity. Though it cannot be pretended that the principles 
 of moral and political knowledge have, in general, the same degree 
 of certainty with those of the mathematics, yet they have much 
 better claims in this respect than, to judge from the conduct of 
 men in particular situations, we should be disposed to allow them.„ 
 The obscurity is much oftener in the passions and prejudices of 
 the reasoner than in the subject. Men, upon too many occasions, 
 do not give their own understandings fair play ; but, yielding to 
 some untoward bias, they entangle themselves in words and con- 
 found themselves in subtleties. 
 
 How else could it happen (if we admit the objectors to be sin- 
 cere in their opposition) that positions so clear as those which 
 manifest the necessity of a general power of taxation in the gov- 
 ernment of the Union, should have to encounter any adversaries 
 among men of discernment ? Though these positions have been 
 elsewhere fully. stated, they will perhaps not be improperly recapit- 
 ulated in this place, as introductory to an examination of what 
 may have been offered by way of objection to them. They are in 
 substance as follows : 
 
 A government ought to contain in itself every power requisite 
 to the full accomplishment of the objects committed to its care, 
 and to the complete execution of the trusts for which it is respon- 
 sible, free from every other control but a regard to the public good 
 and to the sense of the people. 
 
 As the duties of superintending the national defense and of 
 securing the public peace against foreign or domestic violence 
 involve a provision for casualties and dangers to which no possible 
 limits can be assigned, the power of making that provision 
 ought to know no other bounds than the exigencies of the nation 
 and the resources of the community. 
 
ttamiltoni OPPOMEHTS OP ITATIONAL TAXATIOtf. l^S 
 
 As revenue is the essential engine by which the means of an- 
 swering the national exigencies must be procured, the power of 
 procuring that article in its full extent must necessarily be 
 comprehended in that of providing for those exigencies. 
 
 As theory and practice conspire to prove that the power of 
 procuring revenue is unavailing when exercised over the States in 
 their collective capacities, the federal government must of necessity 
 be invested with an unqualified power of taxation in the ordinary 
 modes. 
 
 Did not experience evince the contrary, it would be natural to 
 conclude that the propriety of a general power of taxation in the 
 national government might safely be permitted to rest on the evi- 
 dence of these propositions, unassisted by any additional argu- 
 ments or illustrations. But we find, in fact, that the antagonists 
 of the proposed Constitution, so far from acquiescing in their 
 justness or truth, seem to make their principal and most zealous 
 effort against this part of the plan. It may therefore be satisfac- 
 tory to analyze the arguments with which they combat it. 
 
 Those of them which have been most labored with that view, 
 seem in substance to amount to this: " It is not true, because the 
 exigencies of the Union may not be susceptible of limitation, that 
 its power of laying taxes ought to be unconfined. Revenue is as 
 requisite to the purposes of the local administrations as those of 
 the Union ; and the former are at least of equal importance with 
 the latter to the happiness of the people. It is, therefore, as nec- 
 essary that the State governments should be able to command the 
 means of supplying their wants as that the national government 
 should possess the like faculty in respect to the wants of the 
 Union. But an indefinite power of taxation in the latter might 
 and probably would, in time, deprive the former of the means of 
 providing for their own necessities ; and would subject them 
 entirely to the mercy of the national legislature. As the laws of 
 the Union are to become the supreme law of the land, as- it is to 
 have power to pass all laws that may be NECESSARY for carrying 
 into execution the authorities with which it is proposed to vest it, 
 the national government might at any time abolish the taxes 
 imposed for State objects upon the pretense of an interference 
 with its own. It might allege a necessity of doing this in order to 
 give efficacy to the national revenues. And thus all the resources 
 of taxation might by degrees become the subjects of federal 
 monopoly, to the entire exclusion and destruction of the State gov- 
 ernments." 
 
 This mode of reasoning appears sometimes to turn upon the 
 
196 ENCROACHMENTS OF STATES. [Ko.30(31) 
 
 supposition of usurpation in the national government ; at other 
 times it seems to be designed only as a deduction from the consti- 
 tutional operation of its intended powers. It is only in the latter 
 light that it can be admitted to have any pretensions to fairness. 
 The moment we launch into conjectures about the usurpations of 
 the federal government, we get into an unfathomable abyss, and 
 fairly put ourselves out of the reach of all reasoning. Imagina- 
 tion may range at pleasure till it gets bewildered amidst the laby- 
 rinths of an enchanted castle, and knows not on which side to 
 turn to extricate itself from the perplexities into which it has so 
 rashly adventured. Whatever may be the limits or modifications 
 of the powers of the Union, it is easy to imagine an endless train 
 of possible dangers ; and by indulging an excess of jealousy and 
 timidity, we may bring ourselves to a state of absolute skepticism 
 and irresolution. I repeat here what I have observed in substance 
 in another place, that all observations founded upon the danger of 
 usurpation ought to be referred to the composition and structure 
 of the government, not to the nature or extent of its powers. The 
 State governments, by their original constitutions, are invested 
 with complete sovereignty. In what does our security consist 
 against usurpation from that quarter ? Doubtless in the manner 
 of their formation, and in a due dependence of those who are to 
 administer them upon the people. If the proposed construction 
 of the federal government be found, upon an impartial examina- 
 tion of it, to be such as to afford to a proper extent the same spe- 
 cies of security, all apprehensions on the score of usurpation- 
 ought to be discarded. 
 
 It should not be forgotten that a disposition in the State govern- 
 ments to encroach upon the rights of the Union is quite as proba- 
 See ble as a disposition in the Union to encroach upon the 
 
 No. 45. rights of the State governments. What side would be 
 likely to prevail in such a conflict, must depend on the means 
 which the contending parties could employ toward securing 
 success. As in republics strength is always on the side 
 of the people, and as there are weighty reasons to induce 
 a belief that the State governments will commonly possess 
 most influence over them, the natural conclusion is that such 
 contests will be most apt to end to the disadvantage of the 
 Union ; and that there is greater probability of encroach- 
 ments by the members upon the federal head than by the federal 
 head upon the members. But it is evident that all conjectures of 
 this kind must be extremely vague and fallible ; and that it is by 
 far the safest course to lay them altogether aside, and to confine 
 
Hamilton] tNDBPEt^DENT STATE REVENUES. t97 
 
 our attention wholly to the nature and extent of the powers as 
 they are delineated in the Constitution. Everything beyond this 
 must be left to the prudence and firmness of the people ; who, as 
 they will hold the scales in their own hands, it is to be hoped, 
 will always take care to preserve the constitutional equilibrium 
 between the general and the State governments. Upon this 
 ground, which is evidently the true one, it will not be difficult to 
 obviate the objections which have been made to an indefinite 
 power of taxation in the United States. PuBLius. 
 
 No. 32 [3l]> (Independent Journal, JanMary ■i, l^ii.) Hamilton. 
 
 DIFFERENTIATION OF POWERS BETWEEN 
 NATIONAL AND STATE GOVERNMENTS 
 WITH ESPECIAL RESPECT TO TAXATION. 
 
 Necessity that the states should possess independent objects of revenues — 
 The federal constitution only a partial union — Three cases of alienation 
 of state sovereignty — Exclusive legislation by national government — Three 
 instances of such power — Power of taxation a concurrent right — A 
 double tax a question of expediency and not of inability — Concurrent 
 jurisdiction results from the division of the sovereign power. 
 
 To the People of the State of New York : 
 
 Although I am of opinion that there would be no real danger of 
 the consequences which seem to be apprehended to the State gov- 
 ernments from a power in the Union to control them in the levies 
 of money, because I am persuaded that the sense of the people, 
 the extreme hazard of provoking the resentments of the State gov- 
 ernments, and a conviction of the utility and necessity of local 
 administrations for local purposes, would be a complete barrier 
 against the oppressive use of such a power ; yet I am willing here 
 to allow, in its full extent, the justness of the reasoning which 
 requires that the individual States should possess an independent 
 and uncontrollable authority to raise their own revenues for the 
 supply of their own wants. And making this concession, I affirm 
 that (with the sole exception of duties on imports and exports) 
 they would, under the plan of the convention, retain that authority 
 in the most absolute and unqualified sense ; and that an attempt 
 on the part of the national government to abridge them in the 
 
igS k^CLUStVE DELEGATION. [So. 3d (31) 
 
 exercise of it would be a violent assumption of power unwarranted 
 by any article or clause of its Constitution. 
 
 An entire consolidation of the States into one complete national 
 sovereignty would imply an entire subordination of the parts ; and 
 wh 'ever powers might remain in them would be altogether 
 dependent on the general will. But as the plan of the convention 
 aims only at a partial union or consolidation, the State govern- 
 ments would clearly retain all the rights of sovereignty which they 
 before had, and which were not, by that act, exclusively delegated 
 to the United States. This exclusive delegation, or rather this 
 alienation, of State sovereignty, would only exist in three cases : 
 where the Constitution in express terms^'granted an exclusive 
 authoritj;Jo_the Union ; where if^ranted in one instance an author- 
 ity to the Union, and in another prolubited the States from exer- 
 cising the like authority; and where it'granted an authority to the 
 Union, to which a similar authority in the States would be abso- 
 lutely and totally contradictory and repugnant. I use these terms 
 to distinguish this last case from another which might appear to 
 resemble it, but which would, in fact, be essentially different ; I 
 mean where the exercise of a concurrent jurisdiction might be pro- 
 ductive of occasional interferences in the policy of any branch of 
 administration, but would not imply any direct contradiction or 
 repugnancy in point of constitutional authority. These three 
 cases of exclusive jurisdiction in the federal government may be 
 exemphfied by the following instances : The last clause but one 
 in the eighth section of the first article provides expressly that 
 Congress shall exercise " exclusive legislation " over the district 
 to be appropriated as the seat of government. This answers to 
 the first case. The first clause of the same section empowers 
 Congress " to lay and collect taxes., duties., imposts., and excises "; 
 and the second clause of the tenth section of the same article 
 declares that " no State shall, without the consent of Congress, 
 lay any imposts or duties on imports or exports, except for the 
 purpose of executing its inspection laws." Hence would result an 
 exclusive power in the Union to lay duties on imports and exports, 
 with the particular exception mentioned ; but this power is abridged 
 by another clause, which declares that no tax or duty shall be laid 
 on articles exported from any State ; in consequence of which 
 qualification, it now only extends to the duties on imports. This 
 answers to the second case. The third will be found in that 
 clause which declares that Congress shall have power " to estab- 
 lish an UNIFORM RULE of naturalization throughout the United 
 States." This must necessarily be exclusive, because, if each 
 
Hamilton] A CONCURRENT POWER OF STATES. 199 
 State had power to prescribe a distinct RULE, there could not 
 
 be a UNIFORM RULE. 
 
 A case which may perhaps be thought to resemble the latter, 
 but which is in fact widely different, affects the question immedi- 
 ately under consideration. I mean the power of imposing taxes 
 on all articles other than exports and imports. This, I contend, is 
 manifestly a concurrent and coequal authority in the United States 
 and in the individual States. There is plainly no expression in the 
 granting clause which makes that power exclusive in the Union. 
 There is no independent clause or sentence which prohibits the 
 States from exercising it. So far is this from being the case that 
 a plain and conclusive argument to the contrary is to be deduced 
 from the restraint laid upon the States in relation to duties on 
 imports and exports. This restriction implies an admission that, 
 if it were not inserted, the States would possess the power it 
 excludes ; and it implies a further admission that, as to all other 
 taxes, the authority of the States remains undiminished. In any 
 other view it would be both unnecessary and dangerous ; it would 
 be unnecessary, because if the grant to the Union of the power of 
 laying such duties implied the exclusion of the States, or even 
 their subordination in this particular, there could be no need of 
 such a restriction ; it would be dangerous, because the introduction 
 of it leads directly to the conclusion which has been mentioned, 
 and which, if the reasoning of the objectors be just, could not 
 have been intended ; I mean that the States, in all cases to which 
 the restriction did not apply, would have a concurrent power of 
 taxation with the Union. The restriction in question amounts to 
 what lawyers call a negative pregnant — that is, a negation of 
 one thing, and an affirmance of another ; a negation of the author- 
 ity of the States to impose taxes on imports and exports, and an 
 affirmance of their authority to impose them on all other articles. 
 It would be mere sophistry to argue that it was meant to exclude 
 them absolutely from the imposition of taxes of the former kind, 
 and to leave them at liberty to lay others subject to the control of 
 the national legislature. The restraining or prohibitory clause 
 only says that they shall not, without the consent of Congress, lay 
 such duties ; and if we are to understand this in the sense last 
 mentioned, the Constitution would then be made to introduce a 
 formal provision for the sakeof a very absurd conclusion ; which is, 
 that the States, with the consent of the national legislature, might 
 tax imports and exports; and that they might tax every other arti- 
 cle, unless controlled by the same body. If this was the intention, 
 why not leave it in the first instance, to what is alleged to be the 
 
20O CONSTITUTIONAL REPUGNANCY. [No. 32 (31) 
 
 natural operation of the original clause, conferring a general power 
 of taxation upon the Union ? It is evident that this could not 
 have been the intention, and that it will not bear a construction of 
 the kind. 
 
 As to a supposition of repugnancy between the power of taxa- 
 tion in the States and in the Union, it cannot be supported in that 
 sense which would be requisite to work an exclusion of the States. 
 It is, indeed, possible that a tax might be laid on a particular 
 article by a State which might render it inexpedient that thus a 
 further tax should be laid on the same article by the Union ; but it 
 would not imply a constitutional inability to impose a further tax. 
 The quantity of the imposition, the expediency or inexpediency of 
 an increase on either side, would be mutually questions of pru- 
 dence; but there would be involved no direct contradiction of 
 power. The particular policy of the national and of the State 
 systems of finance might now and then not exactly coincide, and 
 might require reciprocal forbearances. It is not, however, a mere 
 possibility of inconvenience in the exercise of powers, but an 
 immediate constitutional repugnancy that can by implication 
 alienate and extinguish a pre-existing right of sovereignty. 
 
 The necessity of a concurrent jurisdiction in certain cases results 
 from the division of the sovereign power ; and the rule that all 
 authorities of which the States are not explicitly divested in favor 
 of the Union remain with them in full vigor, is not a theoretical 
 consequence of that division, but is clearly admitted by the whole 
 tenor of the instrument which contains the articles of the proposed 
 Constitution. We there find that, notwithstanding the affirmative 
 grants of general authorities, there has been the most pointed care 
 in those cases where it was deemed improper that the like 
 authorities should reside in the States, to insert negative clauses 
 prohibiting the exercise of them by the States. The tenth section 
 of the first article consists altogether of such provisions. This 
 circumstance is a clear indication of the sense of the convention, 
 and furnishes a rule of interpretation out of the body of the act 
 which justifies the position I have advanced, and refutes every 
 hypothesis to the contrary. Publius. 
 
Hamilton] ALARM OVER GENERAL CLAUSES. 201 
 
 No. 33 [S^]' ^Independent Journal, January 2, 1788.) Hamilton. 
 
 TAXATION CONSIDERED WITH RESPECT TO 
 GENERAL POWERS. 
 
 The general clauses a source of unnecessary alarm — Definition of 
 ■powet — The sweeping clauses chargeable with tautology, but perfectly 
 harmless — Reason for their introduction — The national government nec- 
 essarily its own judge in law-making — Supposed cases of invasion of state 
 sovereignty — Nature of laws considered in regard to supreme law — A na- 
 tional laio not supreme when u. usurpation — The power of the states as 
 to revenue. 
 
 To the People of the State of New York: 
 
 [The residue of the argument against the provisions of 
 the Constitution in respect to taxation is ingrafted upon 
 the following clause.] ' The last clause of the eighth 
 section of the first article of the plan under consideration 
 authorizes the national legislature "to make all laws 
 which shall be necessary and proper for carrying into exe- 
 cution the powers by that Constitution vested in the gov- 
 ernment of the United States, or in any department or 
 officer thereof"; and the second clause of the sixth arti- 
 cle 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, anything in the constitution or laws of any State 
 to the contrary notwithstanding." 
 
 These two clauses have been the source of much viru- 
 lent invective and petulant declamation against the pro- 
 posed Constitution. They have been held up to the 
 people in all the exaggerated colors of misrepresentation 
 as the pernicious engines by which their local govern- 
 ments were to be destroyed and their liberties extermi- 
 nated; as the hideous monster whose devouring jaws 
 would spare neither sex nor age, nor high nor low, nor 
 
 ■ In the original newspaper publication this No. XXXIII. was part of 
 the preceding number, but in the collected edition it was divided as 
 above, and the portion of the first paragraph in brackets was added. — 
 Editor. 
 
202 NECESSARY AND PROPER LAWS. [No. 33 (31) 
 
 sacred nor profane ; and yet, strange as it may appear 
 after all this clamor, to those who may not have hap- 
 pened to contemplate them in the same light, it may be 
 affirmed with perfect confidence that the constitutional 
 operation of the intended government would be precisely 
 the same, if these clauses were entirely obliterated, as if 
 they were repeated in every article. They are only de- 
 claratory of a truth which would have resulted by neces- 
 sary and unavoidable implication from the very act of 
 constituting a federal government and vesting it with 
 certain specified powers. This is so clear a proposition 
 that moderation itself can scarcely listen to the railings 
 which have been so copiously vented against this part of 
 the plan, without emotions that disturb its equanimity. 
 
 What is a power, but the ability or faculty of doing a 
 thing? What is the ability to do a thing, but the power 
 of employing the means necessary to its execution? 
 What is a legislative power, but a power of making 
 LAWS? What are the means to execute a legislative 
 power, but laws? What is the power of laying and collect- 
 ing taxes, but a legislative power, or a power of making 
 laws, to lay and collect taxes? What are the proper means 
 of executing such a power, but necessary and proper laws? 
 
 This simple train of inquiry furnishes us at once with 
 a test by which to judge of the true nature of the clause 
 complained of. It conducts us to this palpable truth, 
 that a power to lay and collect taxes must be a power to 
 pass all laws necessary a.nd 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 axid proper to carry it into effect? I have ap- 
 plied these observations thus particularly to the power of 
 taxation, because it is the immediate subject under con- 
 sideration, 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 re- 
 
Hamilton] VNtON JUDGE OP ITS OWN POWERS. ^63 
 
 lation to all other powers declared in the Constitution. 
 And it is expressly to execute these powers that the sweep- 
 ing clause, as it has been affectedly called, authorizes the 
 national legislature to pass all necessary and proper laws. 
 If there is anything 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 per- 
 fectly harmless. 
 
 But SUSPICION may as^, Why then was it introduced? 
 The answer is that it could only have been done for 
 greater caution, and to guard against all caviling refine- 
 ments in those who might hereafter feel a disposition to 
 curtail and evade the legitimate authorities of the Union. 
 The convention probably foresaw what it has been a prin- 
 cipal aim of these papers to inculcate, that the danger 
 which most threatens our political welfare is that the 
 State governments will finally sap the foundations of the 
 Union; and might therefore think it necessary, in so 
 cardinal a point, to leave nothing to construction. What- 
 ever may have been the inducement to it, the wisdom of 
 the precaution is evident from the cry which has been 
 raised against it; as that very cry betrays a disposition 
 to question the great and essential truth which it is mani- 
 festly the object of that provision to declare. 
 
 But it may be again asked. Who is to judge of the 
 necessity a.nA propriety of the laws to be passed for execut- 
 ing 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 govern- 
 ment, like every other, must judge, in the first instance, 
 of the proper exercise of its powers, and its constituents 
 in the last. If the federal government should overpass 
 the just bounds of its authority and make a tyrannical 
 use of its powers, the people, whose creature it is, must 
 appeal to the standard they have formed, and take such 
 measures to redress the injury done to the Constitution 
 as the exigency may suggest and prudence justify. The 
 
204 A LAW INVOLVES SUPREMACY. [No. 33 (31) 
 
 propriety of a law, in a constitutional light, must always 
 be determined by the nature of the powers upon which it 
 is founded. Suppose, by some forced constructions of 
 its authority (which, indeed, cannot easily be imagined), 
 the federal legislature should attempt to vary the law of 
 descent in any State, would it not be evident that, in mak- 
 ing such an attempt, it had exceeded its jurisdiction, and 
 infringed upon that of the State? Suppose, again, that 
 upon the pretense of an interference with its revenues, it 
 should undertake to abrogate ajand-tax imposed by the 
 authority of a State; would it not be equally evident that 
 this was an invasion of that concurrent jurisdiction in 
 respect to this species of tax which its Constitution 
 plainly supposes to exist in the State governments? If 
 there ever should be a doubt on this head, the credit of 
 it will be entirely due to those reasoners who, in the im- 
 prudent zeal of their animosity to the plan of the conven- 
 tion, have labored to envelop it in a cloud calculated to 
 obscure the plainest and simplest truths. 
 
 But it is said that the laws of the Union are to be the 
 supreme law of the land. But what inference can be drawn 
 from this, or what would they amount to, if they were 
 See not to be supreme? It is evident they would 
 
 No. 44. amount to nothing. A law, by the very 
 
 meaning of the term, includes supremacy. It is a rule 
 which those to whom it is prescribed are bound to ob- 
 serve. 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 politi- 
 cal 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 in- 
 dividuals 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 soci- 
 ety which are not pursuant to its constitutional powers. 
 
Hamilton] LAW NOT SUPREME IF A USURPATION. 205 
 
 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 nec- 
 essarily from the institution of a federal government. It 
 will not, I presume, have escaped observation that it 
 expressly confines this supremacy to laws maAe pursuant to 
 the Constitution J 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 abro- 
 gating or preventing the collection of a tax laid by the 
 authority of the State (unless upon imports and ex- 
 ports) would not be the supreme law of the land, but a 
 usurpation of power not granted by the Constitution. 
 As far as an improper accumulation of taxes on the same 
 object might tend to render the collection difficult or 
 precarious, this would be a mutual inconvenience, not 
 arising from a superiority or defect of power on either 
 side, but from an injudicious exercise of power by one or 
 the other, in a manner equally -disadvantageous to both. 
 It is to be hoped and presumed, however, that mutual 
 interest would dictate a concert in this respect which 
 would avoid any material inconvenience. The inference 
 from the whole is that the individual States would, under 
 the proposed Constitution, retain an independent and 
 uncontrollable authority to raise revenue to any extent of 
 which they may stand in need, by every kind of taxation, 
 except duties on imports and exports. It will be shown 
 in the next paper that this concurrent jurisdiction in 
 
 ' See the abridgment of Marshall's opinion in Marbury vs. Madison, 
 in Appendix. — Editor. 
 
2o6 STATES RETAIN AMPLE AUTHORITY. [110.34(32). 
 
 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. 
 
 No. 34 [32]. (New York Packet, January 4, 1788.) Hamilton. 
 
 THE CONCURRENT JURISDICTION IN TAXA- 
 TION OF THE STATES AND NATION. 
 
 The states will retain abundant sources of revenue — An example of 
 co-ordinate authority from Roman history — The wants of the states will 
 reduce themselves to very narrow compass — Necessity to provide for more 
 than existing national exigencies of revenue — The nation must be in a 
 position to protect itself — The passions of war reign in the human breast — 
 War expenses of Europe compared with expenses of civil list — Especial 
 illustration in Great Britain — Example of revolutionary debt — Amount 
 needed for expense of states — Possible partition of revenue between states 
 and nation — External and internal taxation — Concurrent taxation the 
 only admissible system. 
 
 To the People of the State of New York: 
 
 I flatter myself it has been clearly shown in my last 
 number that the particular States, under the proposed 
 Constitution, would have coequal authority with the 
 Union in the article of revenue, except as to duties on 
 imports. As this leaves open to the States far the great- 
 est part of the resources of the community, there can be 
 no color for the assertion that they would not possess 
 means as abundant as could be desired for the supply of 
 their own wants, independent of all external control. 
 That the field is sufficiently wide will more fully appear 
 when we come to advert to the inconsiderable share of 
 the public expenses for which it will fall to the lot of the 
 State governments to provide. 
 
 To argue upon abstract principles that this co-ordinate 
 authority cannot exist is to set up supposition and theory 
 against fact and reality. However proper such reason- 
 
Hamilton] ROMAN CO-ORDINATE AUTHORITY. 207 
 
 ings might be to show that a thing ought not to exist, they 
 are wholly to be rejected when they are made use of to 
 prove that it does not exist, contrary to the evidence of 
 the fact itself. It is well known that in the Roman re- 
 public 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 indepen'dent 
 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 
 unfitness of two such seemingly contradictory authorities, 
 each having power to annul or repeal the acts of the other. 
 But a man would have been regarded as frantic who 
 should have attempted at Rome to disprove their exist- 
 ence. It will be readily understood that I allude to the 
 
 CDMITIA 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 inter- 
 est; in the latter, in which numbers prevailed, the ple- 
 beian interest had an entire predominancy. And yet 
 these two legislatures coexisted for ages, and the 
 Roman republic attained to the utmost height of human 
 greatness. 
 
 In the case particularly under consideration there is no 
 such contradiction as appears in the example cited; there 
 is no power on either side to annul the acts of the other. 
 And in practice there is little reason to apprehend any 
 inconvenience; because, in a short course of time, the 
 wants of the States will naturally reduce themselves 
 within a very narrow compass; and in the interim the 
 United States will, in all probability, find it convenient to 
 abstain wholly from those objects to which the particular 
 States would be inclined to resort. 
 
 To form a more precise judgment of the true merits of 
 this question, it will be well to advert to the proportion 
 between the objects that will require a federal provision 
 in respect to revenue, and those which will require a State 
 provision. We shall discover that the former are alto- 
 gether unlimited, and that the latter are circumscribed 
 
2o8 FUTURE CONTINGENCIES. [No. 34 (82) 
 
 within very moderate bounds. In pursuing this inquiry, 
 we must bear in mind that we are not to confine our view 
 to the present period, but to look forward to remote 
 futurity. Constitutions of civil government are not to 
 be framed upon a calculation of existing exigencies, but 
 upon a combination of these with the probable exigencies 
 of ages, according to the natural and tried course of 
 human affairs. Nothing, therefore, can be more falla- 
 cious than to infer the extent of any power, proper to be 
 lodged in the national government, from an estimate of 
 its immediate necessities. There ought to be a capacity 
 to provide for future contingencies as they may happen; 
 and as these are illimitable in their nature, it is impossi- 
 ble 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 defense in a state of 
 absolute incapacity to provide for the protection of the 
 community against future invasions of the public peace, 
 by foreign war or domestic convulsions? If, on the con- 
 trary, we ought ta 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 gen- 
 eral 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 pro- 
 duced to establish the probable duration of the world. 
 Observations confined to the mere prospects of internal 
 attacks can deserve no weight, though even these will 
 admit of no satisfactory calculation; but if we mean to 
 be a commercial people, it must form a part of our policy 
 to be able one day to defend that commerce. The sup- 
 
Hamilton] WAR ALWAYS A POSSIBILITY. 209 
 
 port 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 
 experiment in politics of tying up the hands of govern- 
 inent from offensive war founded upon reasons of state, 
 yet certainly we ought not to disable it from guarding 
 the community against the ambition or enmity of other 
 nations. A cloud has been for some time hanging over 
 the European world. If it should break forth into a 
 storm, who can insure us that in its progress a part of its 
 fury would not be spent upon us? No. reasonable man 
 would hastily pronounce that we are entirely out of its 
 reach. Or if the combustible materials that now seem to 
 be collecting should be dissipated without coming to 
 maturity, or if a flame should be kindled without extend- 
 ing 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, how- 
 ever moderate or unambitious we may be, we cannot 
 count upon the moderation, or hope to extinguish the 
 ambition, of others. Who could have imagined at the 
 conclusion of the last war that France and Britain, 
 wearied and exhausted as they both were, would so soon 
 have looked with so hostile an aspect upon each other? 
 To judge from the history of mankind, we shall be com- 
 pelled to conclude that the fiery and destructive passions 
 of war reign in the human breast with much more power- 
 ful 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 accumula- 
 tion of debts with which several of the European nations 
 are oppressed? The answer plainly is, wars and re- 
 bellions; the support of those institutions which are 
 necessary to guard the body politic against these two 
 
210 iVAR DEBTS OF GREAT BRITAIN. [No. 34(32) 
 
 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 legisla- 
 tive, executive, and judicial departments, with their 
 different appendages, and to the encouragement of agri- 
 culture and manufactures (which will comprehend almost 
 all the objects of state expenditure), are insignificant in 
 comparison with those which relate to the national 
 defense.' 
 
 In the kingdom of Great Britain, where all the ostentatious 
 apparatus of monarchy is to be provided for, not above a fifteenth 
 part of the annual income of the nation is appropriated to the class 
 of expenses last mentioned ; the other fourteen-fifteenths are 
 absorbed in the payment of the interest of debts contracted for 
 carrying on the wars in which that country has been engaged, and 
 in the maintenance of fleets and armies. If, on the one hand, it 
 should be observed that the expenses incurred in the prosecution 
 of the ambitious enterprises and vainglorious pursuits of a mon- 
 archy 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 domes- 
 tic administration, and the frugality and economy which in that 
 particular become the modest simplicity of republican govern- 
 ment. 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 our- 
 selves contracted in a single war, and let us only calcu- 
 late on a common share of the events which disturb the 
 peace of nations, and we shall instantly perceive, without 
 the aid of any elaborate illustration, that there must 
 always be an immense disproportion between the objects 
 of federal and State expenditures. It is true that several 
 of the States, separately, are encumbered with consider- 
 
 ' This was so true in 1788, when this was written, that Jefferson 
 (" Writings," v. 115) seriously argued that nations should be absolutely 
 prohibited from borrowing money. Though military and naval expenses 
 are still the great causes of public debt, yet in the democratization of mod- 
 ern nations there is more and more tendency to employ the public credit 
 for public works and improvement, and this change is especially marked 
 in America. — Editor. 
 
Hamilton] EXPENSE OF STATES. 211 
 
 able 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 
 permanent causes of expense. If this principle be a just 
 one, our attention would be directed to a provision, in 
 favor of the State governments for an annual sum of 
 about two hundred thousand pounds; while the exigen- 
 cies 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 qf 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 pro- 
 portion 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 — 
 
 ' None the less, the national government was in such straits during 
 the war of 181 2 tlrat the states of New York and Pennsylvania advanced 
 it nearly a million and a half dollars ; and during the Civil War most 
 of the northern states incurred " war debts," that of New York alone 
 being in excess of twenty-seven million dollars. But this latter was so 
 greatly out of proportion to the debts of the other states that recently 
 the larger part was refunded by the national government. — Editor. 
 
212 CONCURRENT TAXATION. [No. 34 (32) 
 
 too little for their present, too much for their future 
 wants? As to the line of separation betv/een external 
 and internal taxes, this would leave to the States, at a 
 rough computation, the command of two-thirds of the 
 resources of the community to defray from a tenth to a 
 twentieth part of its expenses; and to the Union one- 
 third of the resources of the community to defray from 
 nine-tenths to nineteen-twentieths of its expenses. If 
 we desert this boundary, and content ourselves with leav- 
 ing to the States an exclusive power of taxing houses and 
 lands, there would still be a great disproportion between 
 the means and the end; the possession of one-third of the 
 resources of the community to supply, at most, one-tenth 
 of its wants. If any fund could have been selected and 
 appropriated, equal to and not greater than the object, 
 it would have been inadequate to the discharge of the 
 existing debts of the particular States, and would have 
 left them dependent on the Union for a provision for 
 this purpose. 
 
 The preceding train of observation will justify the 
 position which has been elsewhere laid down, that " A 
 CONCURRENT JURISDICTION in the article of taxation was 
 the only admissible substitute for an entire subordination, 
 in respect to this branch of power, of State authority to 
 that of the Union." Any separation of .the objects of 
 revenue, that could have been fallen upon, would have 
 amounted to a sacrifice of the great interests of the 
 Union to the power of the individual States. The con- 
 vention thought the concurrent jurisdiction preferable to 
 that subordination; and it is evident that it has at least 
 the merit of reconciling an indefinite constitutional 
 power of taxation in the Federal government with an 
 adequate and independent power in the States to provide 
 for their own necessities. There remain a few other 
 lights, in which this important subject of taxation will 
 claim a further consideration. 
 
 PUBLIUS. 
 
Hamilton] LIMITATION OF TAXATION. 213 
 
 No. 35 [33]- (Independent Journal, January 5, 1788.) Hamilton. 
 
 ANSWERS TO OBJECTIONS TO INDEFINITE 
 POWERS OF TAXATION. 
 
 A limitation of taxation will end in undue burdens on particular 
 objects — A restriction to duties will result in their being carried to an 
 injurious excess — High duties produce smuggling, undue favoring of 
 manufacturing classes, and oppression of the merchant — Payment of 
 duties falls upon both seller and buyer — Consideration of the maxim that 
 the consumer pays the duties—High duties certain to be attended with 
 inequality — An equalization only to be obtained by excises — Special inter- 
 est of Neil) York — The desire for revenue likely to limit excess in duties 
 — Consideration of the objection that the House of Representatives is too 
 small — Actual representation of all classes purely visionary — Interests 
 of mechanics and manufacturers — Of the learned professions — Of the 
 landed interests — Taxation of land — The representative body will be 
 chiefly composed of landholders — Mutual interest of all classes — Respon- 
 siveness of representatives to public opinion — Extensive information 
 needed in the business of taxation — The most productive system of 
 finances is the least burdensome. 
 
 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 jurisdic- 
 tion of the national government, in the article of revenue, 
 should be restricted to particular objects, it would 
 naturally occasion an undue proportion of the public 
 burdens to fall upon those objects. Two evils would 
 spring from this source: the oppression of particular 
 branches of industry; and an unequal distribution of the 
 taxes, as well among the several States as among the 
 citizens of the same State. 
 
 Suppose, as has been contended for, the federal power 
 of taxation were to be confined to duties on imports, it 
 is evident that the government, for want of being able to 
 command other resources, would frequently be tempted 
 to extend these duties to an injurious excess. There are 
 persons who imagine that they can never be carried to 
 too great a length; since, the higher they are, the more 
 
214 HIGH DUTIES AND SMUGGLING. [No. 35 (33) 
 
 it is alleged they will tend to discourage an extravagant 
 consumption, to produce a favorable balance of trade, 
 and to promote domestic manufactures. But all extremes 
 are pernicious in various ways. Exorbitant duties on 
 imported articles would beget a general spirit of smug- 
 gling, which is always prejudicial to the fair trader and 
 eventually to the revenue itself; they tend to render 
 other classes of the community tributary, in an improper 
 degree, to the manufacturing classes, to whom they give 
 a premature monopoly of the markets; they sometimes 
 force industry out of its more natural channels into 
 others in which it flows with less advantage; and, in 
 the last place, they oppress the merchant, who is often 
 obliged to pay them himself without any retribution from 
 the consumer. When the demand is equal to the quan- 
 tity of goods at market, the consumer generally pays the 
 duty; but when the markets happen to be overstocked, 
 a great proportion falls upon the merchant, and some- 
 times not only exhausts his profits, but breaks in upon 
 his capital. I am apt to think that a division of the duty 
 between the seller and the buyer more often happens 
 than is commonly imagined. It is not always possible to 
 raise the price of a commodity in exact proportion to 
 every additional imposition laid upon it. The merchant, 
 especially in a country of small commercial capital, is 
 often under a necessity of keeping prices down in order 
 to a more expeditious sale. 
 
 The maxim that the consumer is the payer is so much 
 oftener true than the reverse of the proposition that it 
 is far more equitable that the duties on imports should 
 go into a common stock than that they should redound 
 to the exclusive benefit of the importing States. But it 
 is not so generally true as to render it equitable that 
 those duties should form the only national fund. When 
 they are paid by the merchant they operate as an addi- 
 tional 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 
 
Hamilton] EQUALIZATION THROUGH EXCISES. 215 
 
 increased extent of the duties. The confinement of the 
 national revenues to this species of imposts would be 
 attended with inequality, from a different cause, between 
 the manufacturing and the non-manufacturing States. 
 The States which can go furthest toward 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 manu- 
 factures. 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 manufactur- 
 ing State. She would, of course, suffer in a double light 
 from restraining the jurisdiction of the Union to com- 
 mercial imposts. 
 
 So far as these observations tend to inculcate a danger of 
 the import duties being extended to an injurious extreme, 
 it may be observed, conformably to a remark made in 
 another part of these papers, that the interest of the rev- 
 gee enue itself would be a sufficient guard against 
 No. 21. such an extreme. I readily admit that this 
 would be the case as long as other resources were open; 
 but if the avenues to them were closed, hope, stimulated 
 by necessity, would beget experiments, fortified by rigor- 
 ous precautions and additional penalties, which for a time 
 would have the intended effect, till there had been leisure 
 to contrive expedients to elude these new precautions. 
 The first success would be apt to inspire false opinions, 
 which it might require a long course of subsequent 
 experience to correct. Necessity, especially in politics, 
 
 • In the text of the edition of 1 802, " and from a greater disproportion 
 between her population and territory is unliliely speedily to be, to any 
 great extent." — Editor. 
 
2i6 IDEAL REPRESENTATION^ riSIONARV.lSo.mSS^ 
 
 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 
 See is not sufficiently numerous for the reception of all 
 
 No. 54. the different classes of citizens, in order to combine 
 
 the interests and feelings of every part of the community and to 
 produce a due sympathy between the representative body and its 
 constituents. This argument presents itself under a very specious 
 and seducing form ; and is well calculated to lay hold of the 
 prejudices of those to whom it is addressed. But when we come 
 to dissect it with attention, it will appear to be made up of nothing 
 but fair-sounding words. The object it seems to aim at is, in the 
 first place, impracticable, and in the sense in which it is contended 
 for is unnecessary. I reserve for another place the discussion of 
 the question which relates to the sufficiency of the representative 
 body in respect to numbers, and shall content myself with exam- 
 ining here the particular use which has been made of a contrary 
 supposition in reference to the immediate subject of our inquiries. 
 " The idea of an actual representation of all classes of the people 
 by persons of each class is altogether visionary. Unless it were 
 expressly provided in the Constitution that each different occupa- 
 tion should send one or more members, the thing would never 
 take place in practice. Mechanics and manufacturers will always 
 be inclined, with few exceptions, to give their votes to merchants 
 in preference to persons of their own professions or trades. Those 
 discerning citizens are well aware that the mechanic and manufac- 
 turing arts furnish the materials of mercantile enterprise and 
 industry. Many of them, indeed, are immediately connected with 
 the operations of commerce. They know that the merchant is their 
 natural patron and friend ; and they are aware that, however great 
 the confidence they may justly feel in their own good sense, their 
 interests can be more effectually promoted by the merchant than 
 by themselves. They are sensible that their habits in life have not 
 been such as to give them those acquired endowments without 
 which, in a deliberative assembly, the greatest natural abilities are 
 
Hamilton] TAXES ON' LAND. 217 
 
 for the most part useless ; and that the influence and weight and 
 superior acquirements of the merchants render them more equal 
 to a contest with any spirit which might happen to infuse itself into 
 the public councils, unfriendly to the manufacturing and trading 
 interests. These considerations, and many others that might be 
 mentioned, prove, and experience confirms it, that artisans and 
 manufacturers will commonly be disposed to bestow their votes 
 upon merchants and those whom they recommend. We must 
 therefore consider merchants as the natural representatives of all 
 these classes of the community. 
 
 With regard to the learned professions little need be observed ; 
 they truly form no distinct interest in society, and, according to their 
 situation and talents, will be indiscriminately the objects of the 
 confidence and choice of each other, and of other parts of the com- 
 munity. 
 
 Nothing remains but the landed interest ; and this, in a politic^ 
 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 land- 
 holder and the middling farmer, what 'reason is there to conclude 
 that the first would stand a better chance of being deputed to the 
 national legislature than the last ? If we take fact as our guide, 
 and look into our own Senate and Assembly, we shall find that 
 moderate proprietors of land prevail in both ; nor is this less the 
 case in the Senate, which consists of a smaller number, than in 
 the Assembly, which is composed of a greater number. Where the 
 qualifications of the electors are the same, whether they have to 
 choose a small or a large number, their votes will fall upon those 
 in whom they have most confidence, whether these happen to be 
 men of large fortunes, or of moderate property, or of no property 
 at all. 
 
 It is said to be necessary that all classes of citizens should have 
 some of their own number in the representative body in order that 
 their feelings and interests may be the better understood and at- 
 tended to. But we have seen that this will never happen under any 
 arrangement that leaves the votes of the people free. Where this 
 is the case, the representative body, with too few exceptions to 
 have any influence on the spirit of the government, will be com- 
 
2i8 TAXATION REQUIRES KNOWLEDGE. [Ho. 35 (33) 
 
 posed of landholders, merchants, and men of the learned profes- 
 sions. But where is the danger that the interests and feehngs of 
 the different classes of citizens will not be understood or attended 
 to by these three descriptions of men ? Will not the landholder 
 know and feel whatever will promote or insure the interest of 
 landed property ? And will he not, from his own interest in that 
 species of property, be sufficiently prone to resist every attempt to 
 prejudice or encumber it? Will not the merchant understand and 
 be disposed to cultivate, as far as may be proper, the interests of 
 the mechanic and manufacturing arts, to which his commerce 
 is so nearly alhed? Will not the man of the learned profession, 
 who will feel a neutrality to the rivalships between the different 
 branches of industry, be likely to prove an impartial arbiter 
 between them ; ready to promote either, so far as it shall appear to 
 him conducive to the general interests of the society ? 
 * If we take into the account the momentary humors or dispositions 
 which may happen to prevail- in particular parts of the society, and 
 to which a wise administration will never be inattentive, is the man 
 whose situation leads to extensive inquiiy and information less 
 likely to be a competent judge of their nature, extent, and founda- 
 tion than one whose observation does not travel beyond the circle 
 of his neighbors and acquaintances ? Is it not natural that a man 
 , who is a candidate for the favor of the people, and who is depend- 
 ent on the suffrages of his fellow-citizens for the continuance of 
 his pubhc 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 depend- 
 ence, 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 cords of sympathy between the representative and the 
 constituent. 
 
 There is no part of the administration of government that 
 requires extensive information and a thorougli knowledge of the 
 principles of political economy so much as the business of taxation. 
 The man who understands those principles best will be least 
 likely to resort to oppressive expedients or to sacrifice any particu- 
 lar class of citizens to the procurement of revenue. It might be 
 demonstrated that the most productive system of finance will 
 always be the least burdensome. There can be no doubt that in 
 order to a judicious exercise of the power of taxation, it is neces- 
 sary 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 
 
Hamilton] INTERESTS OF CLASSES. 219 
 
 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 qualifica- 
 tion is most likely to be found. 
 
 PUBLIUS. 
 
 No. 36 [34]. i^em York Packet. Januarys, 1788.) Hamilton. 
 
 TAXATION CONSIDERED MORE ESPECIALLY 
 AS REGARDS INTERNAL TAXES. 
 
 Taxation for the benefit of individuals — Little affinity between 
 various classes of society — Assertion that the nation cannot exercise the 
 power of taxation with advantage — The same power in the state legisla- 
 tures — Usual method of laying taxes — Internal taxes divided into direct 
 and indirect — Indirect taxes are duties and excises on articles of consump- 
 tion — In laying these taxes the principal object should be to avoid objects 
 already taxed by particular states — The objections to direct taxes — Method 
 of laying land taxes — The nation can use the method of each state — 
 Direct taxes viust be apportioned by population — The abuse of direct 
 taxes provided against with guarded circumspection — Proposition that 
 the nation shall collect all internal taxes by requisition — Impossibility that 
 the revenue laws of nation and states will clash — A small land tax 
 sufficient for the states — Specters raised out of this power of internal 
 taxation — Double sets of tax collectors — Probable employment of state 
 officials — Unlikelihood of double taxation— Poll taxes. 
 
 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 froni the 
 natural operation of the different interests and views of the various 
 classes of the community, whether the representation of the people 
 be more or less numerous, it will consist almost entirely of 
 proprietors of land, of merchants, and of members of the learned 
 professions, who will truly represent all those different interests 
 and views. If it should be objected that we have seen other 
 descriptions of men in the local legislatures, I answer that it 
 is admitted there are exceptions to the rule, but not in sufficient 
 number to influence the general complexion or character of 
 the government. There are strong minds in every walk of 
 life that will rise superior to the disadvantages of situation, and 
 
2 20 CONFLICT OF REVENUE LAWS. [No. 36(34) 
 
 will command the tribute due to their merit, not only from the 
 classes to which they particularly belong, but from the society in 
 general. The door ought to be equally open to all ; and I trust, 
 for the credit of human nature, that we shall see examples of such 
 vigorous plants flourishing in the soil of federal as well as of State 
 legislation ; but occasional instances of this sort will not render 
 the reasoning founded upon the general course of things less 
 conclusive. 
 
 The subject might be placed in several other lights that would 
 all lead to the same result ; and in particular it might be asked, 
 What greater affinity or relation of interest can be conceived be- 
 tween the carpenter and blacksmith, and the linen manufacturer or 
 stocking-weaver, than between the merchant and either of them ? 
 It is notorious that there are often as great rivalships between 
 different branches of the mechanic or manufacturing arts as there 
 are between any of the departments of labor and industry ; so 
 that, unless the representative body were to be far more numerous 
 than would be consistent with any idea of regularity or wisdom in 
 its deliberations, it is impossible that what seems to be the spirit 
 of the objection we have been considering should ever be realized 
 in practice. But I forbear to dwell any longer on a matter which 
 has hithert<5 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 legisla- 
 ture could never be exercised with advantage, as well from 
 the want of a sufificient knowledge of local circumstances, 
 as from an interference between the revenue laws of the 
 Union and of the particular States. The supposition of 
 a want of proper knowledge seems to be entirely desti- 
 tute of foundation. If any question is depending in a 
 State legislature respecting one of the counties, which 
 demands a knowledge of local details, how is it acquired? 
 No doubt from the information of the members of the 
 county. Cannot the like knowledge be obtained in the 
 national legislature from the representatives of each 
 State? And is it not to be presumed that the men who will 
 generally be sent there will be possessed of the necessary 
 degree of intelligence to be able to communicate that 
 information? Is the knowledge of local circumstances, as 
 
Hamilton] INTERNAL TAXES OF TWO KINDS. 221 
 
 applied to taxation, a minute topographical acquaintance 
 with all the mountains, rivers, streams, highways, and 
 bypaths in each State; or is it a general acquaintance 
 with its situation and resources; with the state of its 
 agriculture, commerce, manufactures; with the nature 
 of its products and consumptions; with the different 
 degrees and kinds of its wealth, property, and industry? 
 
 Nations in general, even under governments of the 
 more popular kind, usually commit the administration of 
 their finances to single men or to boards composed of a 
 few individuals, who digest and prepare in the first in- 
 stance the plans of taxation which are afterwards passed 
 into laws by the authority of the sovereign or legislature. 
 
 Inquisitive and enlightened statesmen are deemed 
 everywhere best qualified to make a judicious selection of 
 the objects proper for revenue; which is a clear indica- 
 tion, as far as the sense of mankind can have weight in 
 the question, of the species of knowledge of local circum- 
 stances requisite to the purposes of taxation. 
 
 The taxes intended to be comprised under the general 
 denomination of internal taxes may be subdivided into 
 See those of the direct ' and those of the indirect 
 
 Kos. 12,21. kind. Though the objection be made to both, 
 yet the reasoning upon it seems to be confined to the 
 former branch. And indeed, as to the latter, by which 
 must be understood duties and excises on articles of con- 
 sumption, one is at a loss to conceive what can be the 
 nature of the difficulties apprehended. The knowledge 
 relating to them must evidently be of a kind that will 
 either be suggested by the nature of the article itself, or 
 can easily be procured from any well-informed man, espe- 
 
 ' It is interesting to note, in connection with the recent ihuddle- 
 headedness as to the difference between direct and indirect taxes, that 
 Hamilton, in The Federalist, drew the clearest distinction ; but later, 
 when the government sought to prove that a tax on carriages was indi- 
 rect, his brief was the argument which led the court to take that view. 
 Had the Supreme Court laid aside the definitions of "direct" taxes 
 given by the dictionary and by the political economists, it does not seem 
 possible that they could have been long in doubt as to what an income 
 tax was under the constitution ; and they would scarcely have come to 
 their first in4ecision, and to the discreditable reversal which followed sp 
 
222 LAND TAXES. [No. 36 (34) 
 
 daily of the mercantile class. The circumstances that 
 may distinguish its situation in one State from its situa- 
 tion in another must be few, simple, and easy to be com- 
 prehended. The principal thing to be attended to would 
 be to avoid those articles which had been previously ap- 
 propriated 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 mem- 
 bers from the several States. 
 
 The objection, when applied to real property or to 
 houses and lands, appears to have, at first sight, more 
 foundation, but even in this view it will not bear a close 
 examination. Land-taxes are commonly laid in one of 
 two modes, either by actual valuations, permanent or 
 periodical, or by occasional assessments, at the discretion, 
 or according to the best judgment, of certain officers 
 whose duty it is to make them. In either case, the exe- 
 cution of the business, which alone requires the knowl- 
 edge of local details, must be devolved upon discreet 
 persons in the character of commissioners or assessors, 
 elected by the people or appointed by the government for 
 the purpose. All that the law can do must be to name 
 the persons or to prescribe the manner of their election 
 or appointment, to fix their numbers and qualifications, 
 and to draw the general outlines of their powers and 
 duties. And what is there in all this that cannot as- well 
 be performed by the national legislature as by a State 
 legislature? The attention of either can only reach to 
 general principles; local details, as already observed, 
 must be referred to those who are to execute the plan. 
 
 quickly upon it. As outlined in the introduction, the national compact 
 was a pledge of fair dealing to the minority. The "direct " tax clause 
 was part of this covenant, in accordance with the intention of the framers 
 that any iax which could be levied on classes or sections, or in other words, 
 that any tax which could be used discriminatingly, so as to put burdens 
 on some and not on others, should be apportioned by population, to 
 prevent this very discrimination. Once this is recognized, the whole 
 question is merely "Is the income tax a tax levied by a non-paying 
 majority on the minority ? " and its constitutional aspect is obvious. — 
 Editor. 
 
Hamilton] UNIFORMITY OF IMPOSTS. 223 
 
 But there is a simple point of view in which this matter 
 may be placed that must be altogether satisfactory. The 
 national legislature can make use of the system of each 
 State within that State. The method of laying and col- 
 lecting this species of taxes in each State can, in all its 
 parts, be adopted and employed by the federal gov- 
 ernment. 
 
 . Let it be recollected that the proportion of these taxes 
 is not to be left to the discretion of the national legisla- 
 ture, but is to be determined by the numbers of each 
 State, as described in the second section of the first arti- 
 cle. 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 pre- 
 caution just mentioned, there is a provision that "all 
 duties, imposts, and excises shall be uniform throughout ■ 
 the United States." 
 
 It has been very properly observed, by different 
 speakers and writers on the side of the Constitution, that 
 if the exercise of the power of internal taxation by the 
 Union should be discovered on experiment to be really 
 inconvenient, the federal government may then forbear 
 the use of it and have recourse to requisitions in its 
 stead. By way of answer to this it has been trium- 
 phantly asked, Why not in the first-instance omit that am- 
 biguous power, and rely upon the latter resource? Two 
 solid answers may be given. The first is that the exer- 
 cise of that power, if convenient, will be preferable 
 because it will be more effectual; and it is impossible to 
 prove in theory, or otherwise than by the experiment, 
 that it cannot be advantageously exercised. The con- 
 trary, indeed, appears most probable. The second 
 answer is that the existence of such a power in the Con- 
 stitution will have a strong influence in giving efficacy to 
 requisitions. When the States know that the Union can 
 apply itself without their agency, it will be a powerful 
 motive for exertion on their part. 
 
244 SPECTER OF bOOBLE TAXATION. [Nd.3e(34) 
 
 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 sys- 
 tems. An effectual expedient for this purpose will be, 
 mutually to abstain from those objects which either side 
 may have first had recourse to. As neither can control 
 the other, each will have an obvious and sensible interest 
 in this reciprocal forbearance. And where there is an 
 immediate common interest, we may safely count upon its 
 operation. When the particular debts of the States are 
 done away, and their expenses come to be limited within 
 their natural compass, the possibility almost of inter- 
 ference will vanish. A small land-tax will answer the 
 purpose of the States, and will be their most simple and 
 most fit resource. 
 
 Many specters have been raised out of this power of 
 internal taxation to excite the apprehensions of the 
 people: double sets of revenue officers, a duplication of 
 their burdens by double taxations, and the frightful 
 forms of odious and oppressive poll-taxes, have been 
 played off with all the ingenious dexterity of political 
 legerdemain. 
 
 As to the first point, there are two cases in which there 
 can be no room for double sets of officers: one, where 
 the right of imposing the tax is exclusively vested in the 
 Union, which applies to the duties on imports; the other, 
 where the object has not fallen under any State regula- 
 tion or provision, which may be applicable to a variety 
 of objects. In other cases, the probability is that the 
 United States will either wholly abstain from the objects 
 preoccupied for local purposes, or will make use of the 
 State officers and State regulations for collecting the ad- 
 ditional 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 
 
aamilton] COMMERCIAL IMPOSTS. 22^ 
 
 a practicable expedient for avoiding such an inconveni- 
 ence; and nothing more can be required than to show 
 that evils predicted do not necessarily result from the 
 plan. 
 
 As to any argument derived from a supposed system of 
 influence, it is a sufficient answer to say that it ought not 
 to be presumed; but the supposition is susceptible of a 
 more precise answer. If such a spirit should infest the 
 councils of the Union, the most certain road to the ac- 
 complishment of its aim would be to employ the State 
 officers as much as possible, and to attach them to the 
 Union by an accumulation of their emoluments. This 
 would serve to turn the tide of State influence into the 
 channels of the national government, instead of making 
 federal influence flow in an opposite and adverse current. 
 But all suppositions of this kind are invidious, and ought 
 to be banished from the consideration of the great ques- 
 tion before the people. They can answer no other end 
 than to cast a mist over the truth. 
 
 As to the suggestion of double taxation, the answer is 
 plain. The wants of the Union are to be supplied in one 
 way or another; if to be done by the authority of the 
 federal government, it will not be to be done by that of 
 the State government. The quantity of taxes to be paid 
 by the community must be the same in either case; with 
 this advantage, if the provision is to be made by the 
 Union — that the capital resource of commercial imposts, 
 which is the most convenient branch of revenue, can be 
 prudently improved to a much greater extent under 
 federal than under State regulation, and, of course, will 
 render it less necessary to recur to more inconvenient 
 methods; and with this further advantage, that as far as 
 there may be any real difficulty in the exercise of the 
 power of internal taxation, it will impose a disposition to 
 greater care in the choice and arrangement of the means; 
 and must naturally tend to make it a fixed point of policy 
 in the national administration to go as far as may be 
 practicable in making the luxury of the rich tributary to 
 the public treasury, in order to diminish the necessity of 
 
226 POLL-TAXES. [No. 36 (34) 
 
 those impositions which might create dissatisfaction in 
 the poorer and most numerous classes of the society. 
 Happy it is when the interest which the government has 
 in the preservation of its own power concides 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 disap- 
 probation 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 
 government. But does it follow, because there is a 
 power to lay them, that they will actually be laid? Every 
 State in the Union has power to impose taxes of this 
 kind; and yet in several of them they are unknown in 
 practice. Are the State governments to be stigmatized as 
 tyrannies because they possess this power? If they are 
 not, with what propriety can the like power justify such 
 a charge against the national government, or even be 
 urged as an obstacle to its adoption? As little friendly 
 as I am to the species of imposition, I still feel a thorough 
 conviction that the power of having recourse to it ought 
 to exist in the federal government. There are certain 
 emergencies of nations, in which expedients, that in the 
 ordinary state of things ought to be forborne, become 
 essential to the public weal. And the government, from 
 the possibility of such emergencies, ought ever to have 
 the option of making use of them. The real scarcity of 
 objects in this country, which may be considered as pro- 
 ductive 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 
 
 *The New England Stales. — PuBLius. 
 
 ' See article on Poll tax, by W. C. Ford, in Lalor's " Cyclopaedia of 
 Political Science." — Editor. 
 
Madiaon] DIFFICULTIES OF CONVENTIOh'. 227 
 
 common calamities that have befallen other parts of it, I 
 acknowledge my aversion to every project that is calcu- 
 lated to disarm the government of a single weapon which, 
 in any possible contingency, might be usefully employed 
 for the general defense and security. 
 
 I have now gone through the examination of such of 
 the powers proposed to be vested in the United States 
 which may be considered as having an immediate relation 
 to the energy of the government; and have endeavored 
 to answer the principal objections which have been 
 made to them. I have passed over in silence those minor 
 authorities which are either too inconsiderable to have 
 been thought worthy of the hostilities of the opponents 
 of the Constitution, or of too manifest propriety to admit 
 of controversy. The mass of judiciary power, however, 
 might have claimed an investigation under this head, had 
 it not been for the consideration that its organization 
 and its extent may be more advantageously considered in 
 connection. This has determined me to refer it to the 
 branch of our inquiries upon which we shall next enter. 
 
 PUBLIUS. 
 
 No. 37 [36]. (Daily Advertiser, 'imv.arj ^^,\^^^.') MadisOn. 
 
 DIFFICULTIES OF THE CONVENTION IN 
 FRAMING A CONSTITUTION. 
 
 Difficulty 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. 
 
 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 govern- 
 ment of less energy than that before the public, several 
 of the most important principles of the latter fell of course 
 
228 SPIRIT OF MODERATION. [1*0.37(36) 
 
 under consideration. But as the ultimate object of these 
 papfers is to determine clearly and fully the merits of this 
 Constitution, and the expediency of adopting it, our plan 
 cannot be complete without taking a more critical and 
 thorough survey of the work of the convention; without 
 examining it on all its sides, comparing it in all its parts, 
 and calculating its probable effects. 
 
 That this remaining task may be executed under impressions 
 conducive to a just and fair result, some reflections must in this 
 place be indulged, which candor previously suggests. 
 
 It is a misfortune inseparable from human affairs that public 
 measures are rarely investigated with that spirit of moderation 
 which is essential to a just estimate of their real tendency to 
 advance or obstruct the public good ; and that this spirit is more 
 apt to be diminished than promoted by those occasions which 
 require an unusual exercise of it. To those who have been led by 
 experience to attend to this consideration, it could not appear sur- 
 prising that the act of the convention, which recommends so many 
 important changes and innovations, which may be viewed in 
 so many lights and relations, and which touches the springs of so 
 many passions and interests, should find or excite dispositions 
 unfriendly, both on one side and on the other, to a fair discussion 
 and accurate judgment of its merits. In some it has been too 
 evident, from their own publications, that they have scanned the 
 proposed Constitution, not only with a predisposition to censure, 
 but with a predetermination to condemn ; as the language held by 
 others betrays an opposite predetermination or bias, which must 
 render their opinions also of little moment in the question. In 
 placing, however, these different characters on a level, with respect 
 to the weight of their opinions, I wish not to insinuate that there 
 may not be a material difference in the purity of their intentions. 
 It is but just to remark, in favor of the latter description, that as 
 our situation is universally admitted to be peculiarly critical, and to 
 require indispensably that something should be done for our relief, 
 the predetermined patron of what has been actually done may have 
 taken his bias from the weight of these considerations, as well 
 as from considerations of a sinister nature. The predetermined 
 adversary, on the other hand, can have been governed by no 
 venial motive whatever. The intentions of the first may be up- 
 right, as they may, on the contrary, be culpable. The views of 
 the last cannot be upright, and must be culpable. But the truth 
 is that these papers are not addressed to persons falling under 
 
Madiaoi] EMkRGY IN GOVERNMENT. 229 
 
 either of these characters. They solicit the attention of those only 
 who add to a sincere zeal for the happiness of their country a 
 temper favorable to a just estimate of the means of promoting it. 
 
 Persons of this character will proceed to an examination of the 
 plan submitted by the convention, not only without a disposition to 
 find or to magnify faults, but will see the propriety of reflecting 
 that a faultless plan was not to be expected. Nor will they barely 
 make allowances for the errors which may be chargeable on the 
 fallibility to which the convention, as a body of men, were liable ; 
 but will keep in mind that they themselves also are but men and 
 ought not to assume an infallibility in rejudging the fallible 
 opinions of others. 
 
 With equal readiness will it be perceived that, besides these 
 inducements to candor, many allowances ought to be made for the 
 difficulties inherent in the very nature of the undertaking referred 
 to the convention. 
 
 The novelty of the undertaking immediately strikes us. It has 
 been shown in the course of these papers that the existing Con- 
 federation is founded on principles which are fallacious ; that we 
 must consequently change this first foundation, and with it the 
 superstructure resting upon it. It has been shown that the other, 
 confederacies which could be consulted as precedents have been 
 vitiated by the same erroneous principles, and can therefore furnish 
 no other light than that of beacons, which give warning of the 
 course to be shunned without pointing out that which ought to be 
 pursued. The most that the convention could do in such a situa- 
 tion was to avoid the errors suggested by the past experience of 
 other countries, as well as of our own ; and to provide a convenient 
 mode of rectifying their own errors, as future experience may 
 unfold them. 
 
 Among the diflficulties encountered by the convention 
 a very important one must have lain in combining the 
 requisite stability and energy in government with the 
 inviolable attention due to liberty and to the republican 
 form. Without substantially accomplishing this part of 
 their undertaking, they would have very imperfectly ful- 
 filled the object of their appointment or the expectation 
 of the public; yet that it could not be easily accom- 
 plished will be denied by no one who is unwilling to 
 betray his ignorance of the subject. Energy in govern- 
 ment is essential to that security against external and 
 internal danger, and to that prompt arfd salutary execu- 
 
23° MUTABLE LEGISLATION ODIOUS. [No. 37 (36) 
 
 tion of the laws which enter into the very definition of 
 good government. Stability in government is essential 
 to national character and to the advantages annexed to 
 it, as well as to that repose and confidence in the minds 
 of the people, which are among the chief blessings of 
 civil society. An irregular and mutable legislation is not 
 more an evil in itself than it is odious to the people; and 
 it may be pronounced with assurance that the people of 
 this country, enlightened as they are with regard to the 
 nature, and interested, as the great body of them are, in 
 the effects of good government, will never be satisfied till 
 some remedy be applied to the vicissitudes and uncer- 
 tainties which characterize the State administrations. 
 On comparing, however, these valuable ingredients 
 with the vital principles of liberty, we must perceive 
 at once the difficulty of mingling them together in their 
 due proportions. The genius of republican liberty 
 seems to demand on one side, not only that all power 
 should be derived from the people, but that those 
 intrusted with it should be kept in 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.' 
 
 ' Bagehot (" The English Constitution," 74) argues that the stability 
 involved in a fixed term of office is a great defect in the United States 
 government, as compared with that of Great Britain, where the ministry 
 can be turned out at any moment, and a new Parliament obtained. As 
 a matter of fact, the two systems are not so far apart in practice as they 
 are in principle, for the American representative, by being far more 
 responsive to public opinion, can, in any critical moment, be relied upon 
 to accord with, or at least not to oppose, the strongly expressed will of his 
 constituents. But even granting that the American, through his fixed 
 term, is more independent of the voter than his English confrere, a cor- 
 responding gain is his greater independence in other respects. It 
 is well known that the ministry in England can "whip" members 
 of their own party into supporting distasteful measures by the threat 
 of putting these members to the expense and risk of a general elec- 
 tion. More striking still is the fact that the ministry so dread this possi- 
 bility of being voted out of oifice that they constantly yield points against 
 their own convictions, to the extent even of outbidding the measures of the 
 opposing party, as for instance when the chief extensions of the franchise 
 
Madison] DURATION OF POWER. 231 
 
 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 appear to have been an arduous part. 
 
 in Great Britain were passed by the Conservative party, not because 
 it approved them, but because this seemed the only way of retaining 
 office. From this form of political double-dealing American parties have 
 been very free; and, while " trimming" platforms is a frequent device, 
 no party has ever been able to win office by stultifying its true opinion. 
 In the few cases in which parties have tried to reverse their policy, their 
 prompt extinction as important factors has always resulted. 
 
 Aside from this question of prompt response to new opinions and con- 
 ditions, there can be no doubt that the two systems are not widely 
 divergent, since the average length of a Parliament has been shown to 
 be four years, which implies that the British voter and his American 
 brother attain very much the same results by different methods. But 
 here a curious divergence, which deserves recognition, reveals itself. 
 Parliamentary control, since 1815, has been described as a see-saw, a new 
 party taking the reins after nearly every general election. But in the 
 United States parties have held the presidency continuously for periods 
 of twenty-four, twenty, eighteen, and twelve years, or in other words, 
 during three-quarters of our national history we have had but three 
 changes of control. The reason for this rests in this very term of office, 
 which has at once its advantages and disadvantages. In Great Britain, 
 when a ministry is voted out of office on a single measure, the issue can 
 never be in doubt, and thus an English general election is in the 
 majority of cases fought on a single question. In the United States, how- 
 ever, a national election usually involves the important issues of the 
 preceding four years, and the result must inevitably be a less decisive in- 
 dication of the public mind. In the one case, the system amounts almost 
 to a referendum on a particular bill. In the other, it forces not an expres- 
 sion on any single measure, but on the general policy of a party. The 
 voter in Great Britain, to express his disapproval of a measure, very often 
 votes for men to whose general policy he is opposed; the voter in America 
 swallows what he dislikes and keeps his party in office. The short 
 period of office-holding in England and the long period in America are 
 the logical results. When the issue is presented clean-cut, and in the 
 moment of greatest excitement, the elector votes against the measure and 
 necessarily against his party. When the issues are many, and the first 
 heat over such as are disliked has had time to cool, the elector continues 
 faithful to his party. It would be difficult to say which system best fulfills 
 the will of the elector. If the experience of France is a fair one to cite, 
 it is evident that the power to vote ministries out of office leads to hopeless 
 instability, unless that power is balanced by a stability in the representa- 
 tive body or in the elector. — Editor. 
 
2 32 PARTITION OF AUTHORITY. [No. 37 (36j 
 
 Not less arduous must have been the task of marking 
 the proper line of partition between the authority of the 
 gee general and that of the State governments. 
 
 No. 46. Every man will be sensible of this difficulty, 
 
 in proportion as he has been accustomed to contemplate 
 and discriminate objects extensive and complicated in 
 their nature. The faculties of the mind itself have never 
 yet been distinguished and defined, with satisfactory pre- 
 cision, by all the efforts of the most acute and meta- 
 physical philosophers. Sense, perception, judgment, 
 desire, volition, memory, imagination, are found to be 
 separated by such delicate shades and minute gradations 
 that their boundaries have eluded the most subtle investi- 
 gations, and remain a pregnant source of ingenious dis- 
 quisition and controversy. The boundaries between the 
 great kingdom of nature, and, still more, between the 
 various provinces and lesser portions into which they 
 are subdivided, afford another illustration of the same 
 important truth. The most sagacious and laborious 
 naturalists have never yet succeeded in tracing with cer- 
 tainty the line which separates the district of vegetable 
 life from the neighboring region of unorganized matter, 
 or which marks the termination of the former and the 
 commencement of the animal empire. A still greater 
 obscurity lies in the distinctive characters by which the 
 objects in each of these great departments of nature have 
 been arranged and assorted. 
 
 When we pass from the works of nature, in which all 
 the delineations are perfectly accurate, and appear to be 
 otherwise only from the imperfection of the eye which 
 surveys them, to the institutions of man, in which the ob- 
 scurity 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 govern- 
 ment has yet been able to discriminate and define, with 
 sufficient certainty, its three great provinces — the legisla- 
 tive, executive, and judiciary; or even the privileges and 
 
Madison] INTRICACIES OF JURISDICTION. 233 
 
 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 com- 
 bined 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 sub- 
 jects has been more industriously pursued than in any 
 other part of the world. The jurisdiction of her several 
 courts, general and local, of law, of equity, of admiralty, 
 etc., is not less a source of frequent and intricate discus- 
 sions, sufficiently denoting the indeterminate limits by 
 which they are respectively circumscribed. All new 
 laws, though penned with the greatest technical skill, and 
 passed on the fullest and most mature deliberation, are 
 considered as more or less obscure and equivocal, until 
 their meaning be liquidated and ascertained by a series 
 of particular discussions and adjudications. Besides the 
 obscurity arising from the complexity of objects, and the 
 imperfection of the human faculties, the medium through 
 which the conceptions of men are conveyed to each 
 other adds a fresh embarrassment. The use of words is 
 to express ideas. Perspicuity, therefore, requires not 
 only that the ideas should be distinctly formed,* but that 
 they should be expressed by words distinctly and exclu- 
 sively 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 ren- 
 dered inaccurate by the inaccuracy of the terms in which 
 
234 EQUALITY OF STATES. [No. 37 (36) 
 
 it is delivered. And this unavoidable inaccuracy must 
 be greater or less, according to the complexity and nov- 
 elty of the objects defined. When the Almighty himself 
 condescends to address mankind in their own language, 
 his meaning, luminous as it must be, is rendered dim 
 and doubtful by the cloudy medium through which it is 
 communicated. 
 
 Here, then, are three sources of vague and incorrect 
 definitions: indistinctness of the object, imperfection of 
 the organ of conception, inadequateness of the vehicle of 
 ideas. Any one of these must produce a certain degree 
 of obscurity. The convention, in delineating the bound- 
 ary between the federal and State jurisdictions, must 
 have experienced the full effect of them all. 
 
 To the difficulties already mentioned may be added the 
 interfering pretensions of the larger and smaller. States. 
 See We cannot err in supposing that the former 
 
 No. 62. would contend for a participation in the gov- 
 
 ernment fully proportioned to their superior wealth and 
 importance; and that the latter would not be less tena- 
 cious of the equality at present enjoyed by them.' We 
 may well suppose that neither side would entirely yield to 
 the other, and consequently that the struggle could be 
 terminated only by compromise. It is extremely prob- 
 
 ' This equality of the states constituted the most difficult problem of 
 their union. In the Congress of 1774 it was the first question raised, and 
 though the larger colonies finally conceded that the provinces should be 
 equal in voting, it vi^as vpith a distinct entry on the journal that a precedent 
 should not thereby be established. The question was again warmly 
 contested in the discussions of the articles of confederation, and once more 
 the small states were successful in carrying their point, though, to neu- 
 tralize somewhat the possibility of one-third of the people legislating 
 for the whole countiy, it was stipulated that all resolutions must receive 
 the votes of nine states ; an inhibition which had its penalty for as well 
 as advantage to the large states, for by their larger delegations they were 
 more constantly represented in the Congress. Jefferson seems first to 
 have hit upon the expedient finally accepted, when he suggested in 1770 
 that a system should be adopted by which ' ' any proposition might be 
 negatived by the representatives of a majority of the people of America, 
 or of a majority of the colonies of America. The former secures the 
 larger, the latter the smaller colonies." It was on this idea, by means of 
 various propositions of Randolph, Dickinson, Johnson, and Gerry in the 
 federal convention, that the people and the states were severally repre- 
 sented in the upper and lower houses of Congress. — Editor. 
 
Madison] LOCAL JEALOUSIES. 23S 
 
 able, 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 impor- 
 tance of the branches, in forming which they had respect- 
 ively obtained the greatest share of influence. There 
 are features in the Constitution which warrant each of 
 these suppositions; and as far as either of them is well 
 founded, it shows that the convention must have been 
 compelled to sacrifice theoretical propriety to the force 
 of extraneous considerations. 
 
 Nor could it have been the large and small States only, 
 which would marshal themselves in opposition to each 
 other on various points. Other combinations, resulting 
 from a difference of local position and policy, must have 
 created additional difficulties. As every State may be 
 divided into different districts,- and its citizens into differ- 
 ent 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 circum- 
 stances, which produce a like effect on a larger scale. 
 And although this variety of interests, for reasons suffi- 
 ciently explained in a former paper, may have a salutary 
 influence on the administration of the government when 
 formed, yet everyone must be sensible of the contrary 
 influence, which must have been experienced in the task 
 of forming it. 
 
 Would it be wonderful if, under the pressure of all these 
 difficulties, the convention should have been forced into 
 some deviations from that artificial structure and regular 
 symmetry which an abstract view of the subject might 
 lead an ingenious theorist to bestow on a Constitution 
 planned in his closet or in his imagination? The real 
 wonder is that so many difficulties should have been sur- 
 mounted, and surmounted with a unanimity almost as 
 unprecedented as it must have been unexpected. It is 
 impossible for any man of candor to reflect on this cir- 
 cumstance without partaking of the astonishment. It is 
 
^i^ HIGH AHIMUS OF CONVENTIOi^. LNo. 37 (36) 
 
 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 criti- 
 cal 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 al- 
 most all the great councils and consultations held among 
 mankind for reconciling their discordant opinions, 
 assuaging their mutual jealousies, and adjusting their re- 
 spective interests, is a history of factions, contentions, 
 and disappointments, and may be classed among the most 
 dark and degraded pictures which display the infirmities 
 and depravities of the human character. If, in a few 
 scattered instances, a brighter aspect is presented, they 
 serve only as exceptions to admonish us of the general 
 truth, and by their luster to darken the gloom of the 
 adverse prospect to which they are contrasted. In re- 
 volving 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 influ- 
 ence of party animosities — the disease most incident to 
 deliberative bodies, and most apt to contaminate their 
 proceedings. The second conclusion is that all the depu- 
 tations composing the convention were satisfactorily 
 accommodated by the final act, or were induced to accede 
 to it by a deep conviction of the necessity of sacrificing 
 private opinions and partial interests to the public good, 
 and by a despair of seeing this necessity diminished by 
 delays or by new experiments. 
 
 PUBLIUS. 
 
Madison! FOUNDERS OP ANTIQUITY. '2-7,1 
 
 No. 38 [37]. (Independent Journal, January 12, 1788.) MadisOn. 
 
 INCOHERENCE OF THE OBJECTIONS TO THE 
 CONSTITUTION. 
 
 All governments of deliberation and consent hitherto framed by 
 individuals — Examples — Errors in the new system arise from lack of 
 experience — The present siittation of America — Existing evils shown, 
 and the futility of the objections and remedies of the opposition. 
 
 To the People of the State of New York .- 
 
 It is not a little remarkable that in every case reported by ancient 
 histoiy, in which government has been established with delibera- 
 tion and consent, the task of framing it has not beea 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 government of 
 Crete, as Zaleucus was of that of the Locrians. Theseus first,,and 
 after him Draco and Solon, instituted the government of Athens. 
 Lycurgus was the lawgiver of Sparta. The foundation of the 
 original government of Rome was laid by Romulus, and the work 
 completed by two of his elective successors, Numa and Tullius 
 Hostilius. On the abolition of royalty the consular administration 
 was substituted by Brutus, who stepped forward with a project for 
 such a reform, which, he alleged, had been prepared by Tullius 
 Hostilius, and to which his address obtained the assent and ratifica- 
 tion of the senate and people. This remark is applicable to con- 
 federate governments also. Amphictyon, we are told, was the 
 author of that which bore his name. The Achsean league received 
 its first birth from Achaeus, and its second from Aratus. 
 
 What degree of agency these reputed lawgivers might have in 
 their respective establishments, or how far they might be clothed 
 with the legitimate authority of the people, cannot in every instance 
 be ascertained. In some, however, the proceeding was strictly 
 regular. Draco appears to have been intrusted by the people of 
 Athens with indefinite powers to reform its government and laws. 
 And Solon, according to Plutarch, was in a manner compelled, by 
 the universal suffrage of his fellow-citizens, to take upon him the 
 sole and absolute power of new-modeling the constitution. The 
 proceedings under Lycurgus were less regular; but as far as 
 the advocates for a regular reform could prevail, they all turned 
 their eyes toward the single efforts of that celebrated patriot and 
 
238 GREAT LAWGIVERS. [No. 38 (37) 
 
 sage, instead of seeking to bring about a revolution by the inter- 
 vention of a deliberative body of citizens. 
 
 Whence could it have proceeded that a people, jealous as the 
 Greeks were of their hberty, should so far abandon the rules of 
 caution as to place their destiny in the hands of a single citizen ? 
 Whence could it have proceeded that the Athenians, a people 
 who would not suffer an army to be commanded by fewer than 
 ten generals, and who required no other proof of danger to their 
 liberties than the illustrious merit of a fellow-citizen, should con- 
 sider one illustrious citizen as a more, eligible depositary of the 
 fortunes of themselves and their posterity than a select body of 
 citizens, from whose common deliberations more wisdom, as well 
 as more safety, might have been expected ? These questions can- 
 not be fully answered without supposing that the fears of discord 
 and disunion among a number of counselors exceeded the appre- 
 hension of tieachery or incapacity in a single individual. History 
 informs us, likewise, of the difficulties with which these celebrated 
 reformers had to contend, as well as the expedients which they 
 were obliged to employ in order to carry their reforms into effect. 
 Solon, who seems to have indulged a more temporizing policy, 
 confessed that he had not given to his countrymen the government 
 best suited to their happiness but most tolerable to their prejudices. 
 And Lycurgus, more true to his object, was under the necessity of 
 mixing a portion of violence with the authority of superstition, and 
 of securing his final success by a voluntary renunciation, first of 
 his country, and then of his life. If these lessons teach us, on one 
 hand, to admire the improvement made by America on the ancient 
 mode of preparing and establishing regular plans of government, 
 they serve not less, on the other, to admonish us of the hazards and 
 difficulties incident to such experiments and of the great impru- 
 dence of unnecessarily multiplying them. 
 
 Is it an unreasonable conjecture that the errors which may be 
 contained in the plan of the convention are such as have resulted 
 rather from the defect of antecedent experience on this complicated 
 and difficult subject than from a want of accuracy or care in the 
 investigation of it ; and, consequently, such as will not be ascer- 
 tained 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 objec- 
 tions and amendments suggested by the several States, when these 
 articles were submitted for their ratification, not one is found 
 which alludes to the great and radical error which on actual trial 
 
Madison] AMERICA COMPARED TO A PA TIENT. 239 
 
 has discovered itself. And if we except the observations which 
 New Jersey ' was led to make, rather by her local situation than 
 by her peculiar foresight, it may be questioned whether a single 
 suggestion was of sufficient moment to justify a revision of the 
 system. There is abundant reason, nevertheless, to suppose that, 
 immaterial as these objections were, they would have been adhered 
 to with a very dangerous inflexibility in some States, had not a 
 zeal for their opinions and supposed interests been stifled by the 
 more powerful sentiment of self-preservation. One State,' we may 
 remember, persisted for several years in refusing her concurrence, 
 although the enemy remained the whole period at our gates, or 
 rather in the very bowels of our country. Nor was her pliancy in 
 the end effected by a less motive than the fear of being chargeable 
 with protracting the public calamities and endangering the event 
 of the contest. Every candid reader will make the proper reflec- 
 tions on these important facts. 
 
 A patient who finds his disorder daily growing worse, and that 
 an efficacious remedy can no longer be delayed without extreme 
 danger, after coolly revolving his situation and the characters of 
 different physicians, selects and calls in such of them as he judges 
 most capable of administering relief and best entitled to his confi- 
 dence. 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 unani- 
 mous 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 counselors, 
 
 ' New Jersey had insisted that control of commerce was a national 
 affair, and that it should, witli its resulting powers of taxation, be vested 
 in the Congress of the Confederation. See ' ' Secret Journals of Con- 
 gress," i. 359. The motive for this demand is given at p. 37, infra. — 
 Editor. 
 
 ' Maryland, for reasons recorded in the " Secret Journals of Congress," 
 i. 417. — Editor. 
 
240 CONFUSION AMONG ADVISERS. tWo. 38 (37) 
 
 would he not act prudently in trying the experiment unanimously 
 recommended by the latter, rather than be hearkening to those who 
 could neither deny the necessity of a speedy remedy nor agree in 
 proposing one ? 
 
 Such a patient and in such a situation is America at this moment. 
 She has been sensible of her malady. She has obtained a regular 
 and unanimous advice fi'om men of her own deliberate choice. 
 And she is warned by others against following this advice under 
 pain of the most fatal consequences. Do the monitors deny the 
 reality of her danger ? No. Do they deny the necessity of some 
 speedy and powerful remedy ? No. Are they agreed, are any 
 two of them agreed, in their objections to the remedy proposed, or 
 in the proper one to be substituted ? Let them speak for them- 
 selves. This one tells us that the proposed Constitution ought 
 to be rejected, because it is not a confederation of the States but a 
 government over individuals. Another admits that it ought to be 
 a gover-nment over individuals to a certain extent, but by no means 
 to the extent proposed. A third does not object to the government 
 over individuals, or to the extent proposed, but to the want of a 
 bill of rights. A fourth concurs in the absolute necessity of a bill 
 of rights, but contends that it ought to be declaratory, not of the 
 personal rights of individuals, but of the rights reserved to the 
 States in their political capacity. A fifth is of opinion that a bill 
 of rights of any sort would be superfluous and misplaced, and that 
 the plan would be unexceptionable but for the fatal power of 
 regulating the times and places of election. An objector in a large 
 State exclaims loudly against the unreasonable equality of repre- 
 sentation 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 taxa- 
 tion. The patriotic adversary in a State of great exports and 
 imports is not less dissatisfied that the whole burden of taxes may 
 be thrown on consumption. This politician discovers in the Con- 
 stitution 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 
 
Madison] VARIANCE AS TO FUNCTIONS. 241 
 
 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 toward 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 tlie language is that the legislative, executive, and 
 judiciary departments are intermixed in such a manner as to con- 
 tradict all the ideas of regular government and all the requisite 
 precautions in favor of liberty. Whilst this objection circulates in 
 vague and general expressions, there are but a few who lend their 
 sanction to it. Let each one come forward with his particular 
 explanation, and scarce any two are exactly agreed upon the 
 subject. In the eyes of one the junction of the Senate with the 
 President in the responsible function of appointing to offices, 
 instead of vesting this executive power in the Executive alone, is 
 the vicious part of the organization. To another, the exclusion of 
 the House of Representatives, whose numbers alone could be a 
 due security against corruption and partiality in the exercise of 
 such a power, is equally obnoxious. With another, the admission 
 of the President into any share of a power which 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 con- 
 stituted. The demand of one gentleman is that the council should 
 consist of a small number, to be appointed by the most numerous 
 branch of the legislature. Another would prefer a larger number, 
 and considers it as a fundamental condition that the appointment 
 should be made by the President himself. 
 
 As it can give no umbrage to the writers against the plan of the 
 federal Constitution, let us suppose that, as they are the most 
 zealous, so they are also the most sagacious, of those who think 
 the late convention were unequal to the task assigned them, and 
 that a wiser and better plan might and ought to be substituted. 
 
242 CONSTITUTION WORTHY OF TRIAL. [Ko. 38 (37) 
 
 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 remolding the work of the first. 
 Were the experiment to be seriously made, though it required 
 some effort to view it seriously even in fiction, I leave it to be 
 decided by the sample of opinions just exhibited, whether, with all 
 their enmity to their predecessors, they would, in any one point, 
 depart so widely from their example as in the discord and ferment 
 that would mark their own deliberations ; and whether the Con- 
 stitution 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 Constitu- 
 tion 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 sufificient that the latter is 
 more imperfect. No man would refuse to give brass for 
 silver or gold, because the latter had some alloy in it. 
 No man would refuse to quit a shattered and tottering 
 habitation for a firm and commodious building, because 
 the latter had not a porch to it, or because some of the 
 rooms might be a little larger or smaller, or the ceiling 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 exist- 
 ing Confederation? Is an indefinite power to raise money 
 dangerous in the hands of the federal government? The 
 present Congress can make requisitions to any amount 
 they please, and the States are constitutionally bound to 
 furnish them; they can emit bills of credit as long as 
 they will pay for the paper; they can borrow, both 
 abroad and at home, as long as a shilling will be lent. 
 Is an indefinite power to raise troops dangerous? The 
 Confederation gives to Congress that power also; and 
 
Madison} POWERS OF CONGRESS LIFELESS. 243 
 
 they have already begun to make use of it. Is it im- 
 proper 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 em- 
 powers the Senate, with the concurrence of the Execu- 
 tive, to make treaties which are to be the laws of the 
 land? The existing Congress, without any such control, 
 can make treaties which they themselves have declared, 
 and most of the States have recognized, to be the supreme 
 law of the land. Is the importation of slaves permitted 
 by the new Constitution for twenty years? By the old it 
 is permitted forever. 
 
 I shall be told that, however dangerous this mixture of 
 powers may be in theory, it is rendered harmless by the 
 dependence of Congress on the States for the means of 
 carrying them into practice; that, however large the mass 
 of powers may be, it is in fact a lifeless mass. Then, say 
 I, in the first place, that the Confederation is chargeable 
 with the still greater folly of declaring certain powers in 
 the federal government to be absolutely necessary and 
 at the same time rendering them absolutely nugatory; 
 and, in the next place, that if the Union is to continue, 
 and no better government be substituted, effective 
 powers must either be granted to, or assumed by, the 
 existing Congress; in either of which events, the con- 
 trast just stated will hold good. But this is not all. 
 Out of this lifeless mass has already grown an excrescent 
 power, which tends to realize all the dangers that can be 
 apprehended from a defective construction of the supreme 
 government of the Union. It is now no longer a point 
 of speculation and hope that the Western territory is a 
 mine of vast wealth to the United States; and although 
 it is not of such a nature as to extricate them from their 
 
244 A UTHORITY A SSUMED B Y CONGRESS. [No. 38 (37) 
 
 present distresses, or, for some time to come, to yield 
 any regular supplies for the public expenses, yet must it 
 See hereafter be able, under proper management. 
 
 No. 7. both to effect a gradual discharge of the do- 
 
 mestic debt, and to furnish, for a certain period, liberal 
 tributes to the federal treasury. A very large proportion 
 of this fund has been already surrendered by individual 
 States; and it may with reason be expected that the 
 remaining States will not persist in withholding similar 
 proofs of their equity and generosity. We may calculate, 
 therefore, that a rich and fertile country, of an area equal 
 •to the inhabited extent of the United States, will soon 
 become a national stock. Congress have assumed the 
 administration of this stock. They have begun to render 
 it productive. Congress have undertaken to do more: 
 they have proceeded to form new States, to erect tem- 
 porary governments, to appoint officers for them, and to 
 prescribe the conditions on which such States shall be 
 admitted into the Confederacy. All this has been done; 
 and done without the least color of constitutional 
 authority. Yet no blame has been whispered; no alarm 
 has been sounded. A great and independent fund of 
 revenue is passing into the hands of a single body of men, 
 who can raise troops to an indefinite number, and 
 appropriate money to their support for an indefinite 
 PERIOD OF TIME. And yet there are men who have not only 
 been silent spectators of this prospect but who are advo- 
 cates for the system which exhibits it; and, at the same 
 time, urge against the new system the objections which we 
 have heard. Would they not act with more consistency 
 in urging the establishment of the latter, as no less nec- 
 essary to guard the Union against the future powers and 
 resources of a body constructed like the existing Con- 
 gress than to save it from the dangers threatened by the 
 present impotency of that Assembly? 
 
 I mean not, by anything 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 
 
Madison] REPUBLICAN FORM ACCEPTABLE. 245 
 
 them the task of overleaping their constitutional limits. 
 But is not the fact an alarming proof of the danger 
 resulting from a government which does not possess 
 regular powers commensurate to its objects? A dissola- 
 tion or usurpation is the dreadful dilemma to which it is 
 continually exposed. 
 
 PUBLIUS. 
 
 No. 39 [38]. (/»*><«<*»< /<>»>-»«/, January 16, 17S8,) MadisOn. 
 
 THE CONSTITUTION STRICTLY REPUBLICAN. 
 
 Only a republican system possible for America — The principle of 
 republican government shown by examples — The proposed constitution con^ 
 forms to the standard — Proofs of this from the provisions of the consti- 
 tution — Neither wholly national nor wholly federal. 
 
 To the People of the State of New York: 
 
 The last paper having concluded the observations 
 which were meant to introduce a candid survey of the 
 plan of government reported by the convention, we now 
 proceed to the execution of that part of our undertaking. 
 
 The first question that offers itself is whether the 
 general form and aspect of the government be strictly 
 republican. It is evident that no other form would be 
 reconcilable with the genius of the people of America; 
 with the fundamental principles of the Revolution; or 
 with that honorable determination which animates every 
 votary of freedom to rest all our political experiments 
 on the capacity of mankind for self-government. If the 
 plan of the convention, therefore, be found to depart 
 from the republican character, its advocates must aban- 
 don it as no longer defensible. 
 
 What, then, are the distinctive characters of the re- 
 publican form? Were an answer to this question to be 
 sought, not by recurring to principles, but in the applica- 
 tion of the term by political writers to the constitutions of 
 different States, no satisfactory one would ever be found. 
 
246 DEFINITION OF REPUBLIC. [No. 39 (38) 
 
 Holland, in which no particle of the supreme authority 
 is derived from the people, has passed almost universally 
 under the denomination of a republic. The same title 
 has been bestowed on Venice, where absolute power over 
 the great body of the people is exercised, in the most 
 absolute manner, by a small body of hereditary nobles. 
 Poland, which is a mixture of aristocracy and of mon- 
 archy in their worst forms, has been dignified with the 
 same appellation. The government of England, which 
 has one republican branch only, combined with an hered- 
 itary aristocracy and monarchy, has, with equal impro- 
 priety, been frequently placed on the list of republics. 
 These examples, which are nearly as dissimilar to each 
 other as to a genuine republic, show the extreme inac- 
 curacy with which the term has been used in political 
 disquisitions. 
 
 If we resort for a criterion to the different principles 
 on which different forms of government are established, 
 we may define a republic to be, or at least may bestow 
 that name on, a government which derives all its powers 
 directly or indirectly from the great body of the people, 
 and is administered by persons holding their ofifices 
 during pleasure, for a limited period, or during good 
 behavior. It is essential to such a government that it be 
 derived from the great body of the society, not from an 
 inconsiderable proportion, or a favored class of it; other- 
 wise a handful of tyrannical nobles, exercising their 
 oppressions by a delegation of their powers, might aspire 
 to the rank of republicans and claim for their government 
 the honorable title of republic. It is sufficient for such 
 a government that the persons administering it be 
 appointed, either directly or indirectly, by the people; 
 and that they hold their appointments by either of the 
 tenures just specified; otherwise every government in 
 the United States, as well as every other popular govern- 
 ment that has been or can be well organized or well 
 executed, would be degraded from the republican charac- 
 ter. According to the constitution of every State in the 
 Union, some or other of the officers of government are 
 
Madison] TENURES UNDER CONSTITUTION. 247 
 
 appointed indirectly only by the people. According to 
 most of them, the chief magistrate himself is so appointed. 
 And according to one, this mode of appointment is ex- 
 tended to one of the co-ordinate branches of the legisla- 
 ture. According to all the constitutions, also, the tenure 
 of the highest offices is extended to a definite period, and 
 in many instances, both within the legislative and execu- 
 tive departments, to a period of years. According to the 
 provisions of most of the constitutions, again, as well as 
 according to the most respectable and received opinions 
 on the subject, the members of the judiciary department 
 are to retain their offices by the firm tenure of good 
 behavior. 
 
 On comparing the Constitution planned by the convention with 
 the standard here fixed, we perceive at once that it is, in the most 
 rigid sense, conformable to it. The House of Representatives, 
 like that of one branch at least of all the State legislatures, is 
 elected immediately by the great body of the people. The Senate, 
 like the present Congress and the Senate of Maryland, derives 
 its appointment indirectly from the people. The President is 
 indirectly derived from the choice of the people, according to the 
 example in most of the States. Even the judges, with all other 
 officers of the Union, will, as in the several States, be the choice, 
 though a remote choice, of the people themselves. The duration 
 of the appointments is equally conformable to the republican 
 standard and to the model of State constitutions. The House of 
 Representatives is periodically elective, as in all the States; and 
 for the period of two years, as in the State of South Carolina. 
 The Senate is elective, for the period of six years ; which is but one 
 year more than the period of the Senate of Maryland, and but two 
 more than that of the Senates of New York and Virginia. The 
 President is to continue in office for the period of four years ; as 
 in New York and Delaware the chief magistrate is elected for 
 three years, and in South Carolina for two years. In the other 
 States the election is annual. In several of the States, however, 
 no constitutional provision is made for the impeachment of the 
 chief magistrate. And in Delaware and Virginia he is not 
 impeachable till out of office. The President of the United States 
 is impeachable at any time during his continuance in office. The 
 tenure by which the judges are to hold their places is, as it 
 unquestionably ought to be, that of good behavior. The tenure 
 of the ministerial offices generally will be a subject of legal 
 
248 REAL CHARACTER OF UNION. LNo. 39 (38) 
 
 regulation, conformably to the reason of the case and the example 
 of the State constitutions. 
 
 Could any further proof be required of the republican complexion 
 of this system, the most decisive one might be found in its absolute 
 prohibition of titles of nobility, both under the federal and the 
 State governments ; and in its express guaranty of the republican 
 form to each of the latter. 
 
 "But it was not sufficient," say the adversaries of the 
 proposed Constitution, "for the convention to adhere 
 to the republican form. They ought, with equal care, 
 to have preserved the federal form, which regards the 
 Union as a Confederacy of sovereign states; instead of 
 which, they have framed a national government, which 
 regards the Union as a consolidation of the States." And 
 it is asked by what authority this bold and radical 
 innovation was undertaken? The handle which has been 
 made of this objection requires that it should be exam- 
 ined with some precision. 
 
 Without inquiring into the accuracy of the distinction 
 on which the objection is founded, it will be necessary to 
 a just estimate of its force, first, to ascertain the real 
 character of the government in question; secondly, to 
 inquire how far the convention were authorized to pro- 
 pose such a government; and thirdly, how far the duty 
 they owed to their country could supply any defect of 
 regular authority. 
 
 First. — In order to ascertain the real character of the 
 government, it may be considered in relation to the 
 foundation on which it is to be established; to the sources 
 from which its ordinary powers are to be drawn; to the 
 operation of those powers; to the extent of them; and 
 to the authority by which future changes in the govern- 
 ment are to be introduced. 
 
 On examining the first relation, it appears, on one 
 hand, that the Constitution is to be founded on the 
 assent and ratification of the people of America, given 
 by deputies elected for the special purpose; but, on the 
 other, that this assent and ratification is to be given 
 by the people, not as individuals composing one entire 
 
Madison] CONSTITUTION IS FEDERAL. 249 
 
 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, estab- 
 lishing the Constitution, will not be a national, but a 
 federal act. 
 
 That it will be a federal and not a national act, as 
 these terms are understood by the objectors — the act of 
 the people, as forming so many independent States, not 
 as forming one aggregate nation — is obvious from this 
 single consideration, that it is to result neither from the 
 decision of a majority of the people of the Union, nor 
 from that of a majority of the States. It must result 
 from the unanimous assent of the several States that are 
 parties to it, differing no otherwise from their ordinary 
 assent than in its being expressed, not by the legislative 
 authority, but by that of the people themselves. Were 
 the people regarded in this transaction as forming one 
 nation, the will of the majority of the whole people of 
 the United States would bind the minority in the same 
 manner as the majority in each State must bind the 
 minority; and the will of the majority must be deter- 
 mined, 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 new Constitution will, if established, be a federal 
 and not a national constitution. 
 
 The next relation 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 
 
^5^ OPERA TION i§ Ma TldNAL. [ISto. 39 (38) 
 
 Other hand, will derive its powers from the States, as 
 political and coequal societies; and these will be repre- 
 sented on the principle of equality in the Senate, as they 
 now are in the existing Congress. So far the govern- 
 ment is federal, not national. The executive power will 
 be derived from a very compound source. The immedi- 
 ate election of the President is to be made by the States 
 in their political characters. The votes allotted to them 
 are in a compound ratio, which considers them partly as 
 distinct and coequal societies, partly as unequal members 
 of the same society. The eventual election, again, is to 
 be made by that branch of the legislature which consists 
 of the national representatives; but in this particular act 
 they are to be thrown into the form of individual dele- 
 gations, from so many distinct and coequal bodies politic. 
 From this aspect of the government it appears to be of 
 a mixed character, presenting at least as ma.nj federal a.s 
 national features. 
 
 The difference between a federal and national govern- 
 ment, as it relates to the operation of the government, is 
 supposed to consist in this, that in the former the powers 
 operate on the political bodies composing the Confeder- 
 acy, in their political capacities; in the latter, on the 
 individual citizens composing the nation, in their indi- 
 vidual capacities. On trying the Constitution by this 
 criterion, it falls under the national, not the federal 
 character; though perhaps not so completely as has been 
 understood. In several cases, and particularly in the 
 trial of controversies to which States may be parties, they 
 must be viewed and proceeded against in their collective 
 and political capacities only. So far the national counte- 
 nance of the government on this side seems to be dis- 
 figured 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 capa- 
 cities, 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 
 
Madison] EXTENT OF NATIONAL POWERS. 251 
 
 Operation of its powers, it changes its aspect again when 
 we contemplate it in relation to the extent of its powers. 
 The idea of a national government involves in it not 
 only an authority over the individual citizens, but an 
 indefinite supremacy over all persons and things, so far 
 as they are objects of lawful government. Among a 
 people consolidated into one nation, this supremacy is 
 completely vested in the national legislature. Among 
 communities united for particular purposes, it is vested 
 partly in the general and partly in the municipal legisla- 
 tures. In the former case, all local authorities are sub- 
 ordinate to the supreme; and maybe controlled, directed, 
 or abolished by it at pleasure. In the latter, the local 
 or municipal authorities form distinct and independent 
 portions of the supremacy, no more subject, within their 
 respective spheres, to the general authority than the 
 general authority is subject to them within its own 
 sphere. In this relation, then, the proposed government 
 cannot be deemed a national one; since its jurisdiction 
 extends to certain enumerated objects only, and leaves 
 to the several States a residuary and inviolable sover- 
 eignty over all other objects. It is true that, in contro- 
 versies relating to the boundary between the two 
 jurisdictions, the tribunal which is ultimately to decide 
 is to be established under the general government. But 
 this does not change the principle of the case. The 
 decision is to be impartially made, according to the rules 
 of the Constitution; and all the usual and most effectual 
 precautions are taken to secure this impartiality. Some 
 such tribunal is clearly essential to prevent an appeal to 
 the sword and a dissolution of the compact; and that it 
 ought to be established under the general rather than 
 under the local governments, or, to speak more properly, 
 that it could be safely established under the first alone, 
 is a position not likely to be combated. 
 
 If we try the Constitution by its last relation to the 
 authority by which amendments are to be made, we find 
 it neither wholly national nor wholly federal. Were it 
 wholly national, the supreme and ultimate authority 
 
252 RIGHT TO FRAME CONSTITUTION. [No. 40 (39) 
 
 would reside in the majority of the people of the Union; 
 and this authority would be competent at all times, like 
 that of a majority of every national society, to alter or 
 abolish its established government. Were it wholly 
 federal, on the other hand, the concurrence of each State 
 in the Union would be essential to every alteration that 
 would be binding on all. The mode provided by the 
 plan of the convention is not founded on either of these 
 principles. In requiring more than a majority, and par- 
 ticularly in computing the proportion by States, not by 
 citizens, it departs from the national and advances towards 
 the federal character; in rendering the concurrence of 
 less than the whole number of States sufficient, it loses 
 again \h& federal a.xxA partakes of the national character. 
 
 y The proposed Constitution,- therefore, is, in strictness, 
 neither a national nor a federal Constitution, but a com- 
 position of both. In its foundation it is federal, not 
 national; in the sources from which the ordinary powers 
 of the government are drawn, it is partly federal and 
 partly national; in the operation of these powers, it is 
 national, not federal; in the extent of them, again, it is 
 
 , federal, not national; and, finally, in the authoritative 
 mode of introducing amendments, it is neither wholly 
 federal nor wholly national. 
 
 PUBLIUS. 
 
 No. 40 [39]. C^"" yoi-'' Packet, Jsnuary 18, 1788.) MadisOn. 
 
 THE RIGHT OF THE CONVENTION TO FRAME 
 SUCH A CONSTITUTION. 
 
 The authority under which the convention acted examined — Proper 
 even to have exceeded authority, from consideration of duty — Constitu- 
 tion merely recommended — Necessity for a radical change — Whether the 
 convention exceeded its powers does not affect the question of ratification. 
 
 To the People of the State of New York: 
 
 The second point to be examined is, whether the convention 
 were authorized to frame and propose this mixed Constitution. 
 
 The powers of the convention ought, in strictness, to be deter- 
 
Madison! RECOMMENDATORY ACTS. 253 
 
 mined 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 Feb- 
 ruary, 1787, it will be sufficient to recur to these particular acts. 
 
 The act from Annapolis recommends the " appointment of com- 
 missioners to take into consideration the situation of the United 
 States ; to devise suck 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 legis- 
 lature of every State, will effectually provide for the same." 
 
 The recommendatory act of Congress is in the words following : 
 " Whereas, there is provision in the articles of Confederation and 
 perpetual Union, for making alterations therein, by the assent of 
 a Congress of the United States, and of the legislatures of the 
 several States; and whereas experience hath evinced, that there 
 are defects in the present Confederation ; as a mean to remedy 
 which, several of the States, and particularly the State of New 
 York, by express instructions to their delegates in Congress, have 
 suggested a convention for the purposes expressed in the follow- 
 ing resolution ; and such convention appearing to be the most 
 probable mean of establishing in these States a firm, national 
 government : 
 
 " Resolved, — That in the opinion of Congress it is expedient, 
 that on the second Monday of May next a convention of delegates, 
 who shall have been appointed by the several States, be held at 
 Philadelphia, for the sole and express purpose of revising the 
 articles of Confederation, and reporting to Congress and the 
 several legislatures such alterations and provisions therein, as 
 shall, when agreed to in Congress, and confirmed by the States, 
 render the federal Constitution adequate to the exigencies of 
 government and the preservation of the Union!' 
 
 From these two acts, it appears, ist, that the object of the con- 
 vention was to establish, in these States, a firm national govern- 
 ment; 2d, that this government was to be such as would be ade- 
 quate 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 
 
254 ADEQUA TE GO VERNMENT DEMANDED. [No. 40 (39) 
 
 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 con- 
 vention acted. They were to frame a national government, ade- 
 quate to the exigencies of government, and of the Union; and to 
 reduce the articles of Confederation into such form as to accom- 
 plish 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 conspiie to some common end. The other is that 
 where the several parts cannot be made to coincide, the less 
 important should give way to the more important part ; the means 
 should be sacrificed to the end rather than the end to the means. 
 
 Suppose, then, that the expressions defining the authority of the 
 convention were irreconcilably at variance with each other ; that 
 a national and adequate government could not possibly, in the 
 judgment of the convention, be effected by alterations and pro- 
 visions in the articles of Confederation; which part of the defini- 
 tion ought to have been embraced, and which rejected.' Which 
 was the more important, which the less important part.' Which 
 the end ; which the means ? Let the most scrupulous expositors 
 of delegated powers ; let the most inveterate objectors against 
 those exercised by the convention, answer these questions. Let 
 them declare whether it was of most importance to the happiness 
 of the people of America that the articles of Confederation should 
 be disregarded, and an adequate government be provided, and the 
 Union preserved ; or that an adequate government should be 
 omitted, and the articles of Confederation preserved. Let them 
 declare whether the preservation of these articles was the end 
 for securing which a reform of the government was to be intro- 
 duced as the means ; or whether the establishment of a govern- 
 ment, 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 abso- 
 lutely irreconcilable to each other ; that no alterations or pro- 
 visions in the articles of the Confederation could possibly mold 
 them into a national and adequate government ; into such a 
 government as has been proposed by the convention .' 
 
 No stress, it is presumed, will, in this case, be laid on the title; 
 a change of that could never be deemed an exercise of ungranted 
 
MadiBon] STATES AND INDIVIDUALS. 2SS 
 
 power. Alterations in the body of the instrument are expressly 
 authorized. New provisions therein are also expressly authorized. 
 Here then is a power to change the title ; to insert new articles ; 
 to alter old ones. Must it of necessity be admitted that this 
 power is infringed, so long as a part of the old articles remain ^ 
 Those who maintain the affirmative ought at least to mark the 
 boundary between authorized and usurped innovations ; between 
 that degree of change which lies within the compass of alterations 
 and further provisions, and that which amounts to a transmuta- 
 tion of the government. Will it be said that the alterations ought 
 not to have touched the substance of the Confederation ? The 
 States would never have appointed a convention with so much 
 solemnity, nor described its objects with so much latitude, if some 
 substantial reform had not been in contemplation. Will it be 
 said that the fundamental principles of the Confederation were 
 not within the purview of the convention, and ought not to have 
 been varied ? I ask. What are these principles ? Do they require 
 that, in the estabhshment of the Constitution, the States should 
 be regarded as distinct and independent sovereigns? They are 
 so regarded by the Constitution proposed. Do they require that 
 the members of the government should derive their appointment 
 from the legislatures, not from the people of the States.? One 
 branch of the new government is to be appointed by these legisla- 
 tures ; 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 im- 
 mediately on individuals ? In some instances, as has been shown, 
 the powers of the new government will act on the States in their 
 collective characters. In some instances, also, those of the exist- 
 ing government act immediately on individuals. In cases of 
 capture ; of piracy ; of the post office ; of coins, weights, and meas- 
 ures ; 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 imme- 
 diately on the persons and interests of individual citizens. Do 
 these fundamental principles require, particularly, that no tax 
 should be levied without the intermediate agency of the States ? 
 The Confederation itself authorizes a direct tax, to a certain 
 extent, on the post office. The power of coinage has been so con- 
 
 * Connecticut and Rhode Island.— PuBLlus, 
 
2S6 POPULAR Confirmation. [Ho. 46 (39) 
 
 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 universal expecta- 
 tion of the people, that the regulation of trade should be submitted 
 to the general government in such a form as would render it 
 an immediate source of general revenue ? Had not Congress 
 repeatedly recommended this measure as not inconsistent with the 
 fundamental principles of the Confederation? Had not every 
 State but one, had not New York herself, so far complied with 
 the plan of Congress as to recognize the principle of the innova- 
 tion ? Do these principles, in fine, require that the powers of the 
 general government should be limited, and that, beyond this limit, 
 the States should be left in possession of their sovereignty and 
 independence ? We have seen that in the new government, as in 
 the old, the general powers are limited ; and that the States, in all 
 unenumerated cases, are left in the enjoyment of their sovereign 
 and independent jurisdiction. 
 
 The truth is that the great principles of the Constitution pro- 
 posed by the converition may be considered less as absolutely new 
 than as the expansion of principles which are found in the articles 
 of Confederation. The misfortune under the latter system has 
 been that these principles are so feeble and confined as to justify 
 all the charges of inefficiency which have been urged against it, 
 and to require a degree of enlargement which gives to the new 
 system the aspect of an entire transformation of the old. 
 
 In one particular it is admitted that the convention have de- 
 parted from the tenor of their commission. Instead of reporting 
 a plan requiring the confirmation of the legislatures of all the 
 States, they have reported a plan which is to be confirmed by the 
 people, and may be carried into effect by nine States only. It is 
 worthy of remark that this objection, though the most plausible, 
 has been the least urged in the publications which have swarmed 
 against the convention. The forbearance can only have proceeded 
 from an irresistible conviction of the absurdity of subjecting the 
 fate of twelve States to the perverseness or corruption of a 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 example still fresh in the 
 memory and indignation of every citizen who has felt for the 
 wounded honor and prosperity of his country. As this objection, 
 
 ' Rhode Island refused to send delegates to the federal convention. — 
 Editor. 
 
Madison] SOLEMN PURPOSE OF CONVENTION. 257 
 
 therefore, has been in a manner waived by those who have criti- 
 cised the powers of the convention, I dismiss it without further 
 observation. 
 
 The third point to be inquired into is, how far considerations of 
 duty arising out of the case itself could have supplied any defect 
 of regular authority. 
 
 In the preceding inquiries the powers of the convention have 
 been analyzed and tried with the same I'igor, and by the same 
 rules, as if they had been real and final powers for the establish- 
 ment 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 accord- 
 ingly 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 dif- 
 ferent, and will enable us to judge with propriety of the course 
 taken by the convention. 
 
 Let us view the ground on which the convention stood. It may 
 be collected from their proceedings that they were deeply and 
 unanimously impressed with the crisis which had led their 
 country almost with one voice to make so singular and solemn an 
 experiment for correcting the errors of a system by which this 
 crisis had been produced ; that they were no less deeply and 
 unanimously convinced that such a reform as they have proposed 
 was absolutely necessary to effect the purposes of their appoint- 
 ment. It could not be unknown to them that the hopes and 
 expectations of the great body of citizens throughout this great 
 empire were turned with the keenest anxiety to the event of their 
 deliberations. They had every reason to believe that the contrary 
 sentiments agitated the minds and bosoms of every external and 
 internal foe to the liberty and prosperity of the United States. 
 They had seen, in the origin and progress of the experiment, the 
 alacrity with which the proposition made by a single State 
 (Virginia) toward 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 jnto effect by twelve out of the 
 thirteen States. They had seen, in a variety of instances, assump- 
 
258 CONVENTION ACTEb RESPONSIBLY: [No. 40 (39) 
 
 tions by Congress, not only of recommendatory, but of operative, 
 powers, warranted, in the public estimation, by occasions and 
 objects infinitely less urgent than those by which their conduct 
 was to be governed. They must have reflected that, in all great 
 changes of established governments, forms ought to give way to 
 substance ; that a rigid adherence in such cases to the former 
 would render nominal and nugatory the transcendent and pre- 
 cious right of the people to " abolish or alter their governments 
 as to them shall seem most likely to effect their safety and happi- 
 ness," * since it is impossible for the people spontaneously and 
 universally to move in concert toward their object ; and it is there- 
 fore essential that such changes be instituted by some informal 
 and unauthorized propositions, made by some patriotic and 
 respectable citizen or number of citizens. They must have recol- 
 lected that it was by this irregular and assumed privilege of pro- 
 posing to the people plans for their safety and happiness that the 
 States were first united against the danger with which they were 
 threatened by their ancient government ; that committees and 
 congresses were formed for concentrating their efforts and defend- 
 ing their rights ; and that conventions were elected in the several 
 States for establishing the constitutions under which they are now 
 governed ; nor could it have been forgotten that no little ill-timed 
 scruples, no zeal for adhering to ordinary forms^were anywhere 
 seen, except in those who wished to indulge, under these masks, 
 their secret enmity to the substance contended for. They must 
 have borne in mind that, as the plan to be framed and proposed 
 was to be submitted to the people themselves, the disapprobation 
 of this supreme authority would destroy it forever ; its approbation 
 blot out antecedent errors and irregularities. It might even have 
 occurred to them that, where a disposition to cavil prevailed, their 
 neglect to execute the degree of power vested in them, and still 
 more their recommendation of any measure whatever, not war- 
 ranted by their commission, would not less excite animadversion, 
 than a recommendation at once of a measure fully commensurate 
 to the national exigencies. 
 
 Had the convention, under all these impressions and in the 
 midst of all these considerations, instead of exercising a manly 
 confidence in their country, by whose confidence they had been so 
 peculiarly distinguished, and of pointing out a system capable, in 
 their judgment, of securing its happiness, taken the cold and sullen 
 resolution of disappointing its ardent hopes, of sacrificing substance 
 to forms, of committing the dearest interests of their country to the 
 
 * Declaration of Independence. — Publius. 
 
Madison] JiATiFtCAtlON JtJSTlPlABlE. 259 
 
 uncertainties of delay and the hazard of events, let me ask the 
 man who can raise his mind to one elevated conception, who can 
 awaken in his bosom one patriotic emotion, what judgment ought 
 to have been pronounced by the impartial world, by the friends of 
 mankind, by every virtuous citizen, on the conduct and character 
 of this assembly ? Or if there be a man whose propensity to con- 
 demn is susceptible of no control, let me then ask what sentence 
 he has in reserve for the twelve States who usurped the power of 
 sending deputies to the convention, a body utterly unknown to 
 their constitutions ; for Congress, who recommended the appoint- 
 ment of this body, equally unknown to the Confederation ; and for 
 the State of New York, in particular, which first urged and then 
 complied with this unauthorized interposition ? 
 
 But that the objectors may be disarmed of every pretext, it shall 
 be granted for a moment that the convention were neither 
 authorized by their commission, nor justified by circumstances in 
 proposing a Constitution for their country : does it follow that the 
 Constitution ought, for that reason alone, to be rejected ? If, 
 according to the noble precept, it be lawful to accept good advice 
 even from an enemy, shall we set the ignoble example of refusing 
 such advice even when it is offered by our friends ? The prudent 
 inquiry, in all cases, ought surely to be, not so much from whom 
 the advice comes, as whether the advice htgood. 
 
 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 investigation. Publius. 
 
-/ 
 
 26o AGGREGATE POWER CONFERRED. [No. 41 (40) 
 
 No. 41 [40]. (Independent Journal, Js^nmay Jij, ijii.) MadisOIl. 
 
 THE GENERAL VIEW OF THE POWERS SUP- 
 POSED TO BE VESTED IN THE UNION. 
 
 The quality 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 bor- 
 rowing money. 
 
 To the People of the State of New York: 
 
 The Constitution proposed by the convention may be 
 considered under two general points of view. The first 
 relates to the sum or quantity of power which it vests in 
 the government, including the restraints imposed on the 
 States. The second, to the particular structure of the 
 government, and the distribution of this power among its 
 several branches. 
 
 Under the first view of the subject, two important 
 questions arise: i. Whether any part of the powers 
 transferred to the general government be unnecessary 
 or improper? 2. Whether the entire mass of them be 
 dangerous to the portion of jurisdiction left in the 
 several States? 
 
 Is the aggregate power of the general government 
 greater than ought to have been vested in it? This is 
 the first question. 
 
 It cannot have escaped those who have attended with 
 candor to the arguments employed against the extensive 
 powers of the government, that the authors of them have 
 very little considered how far these powers were neces- 
 sary means of attaining a necessary end. They have 
 chosen rather to dwell on the inconveniences which 
 must be unavoidably blended with all political advantages; 
 and on the possible abuses which must be incident to 
 every power or trust of which a beneficial use can be 
 made. This method of handling the subject cannot 
 impose on the good sense of the people of America. 
 
Madisdil] VARIOUS CLASSES OF POWER. 26 1 
 
 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 misthinliing: 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 necessary to the 
 public good; as the next will be, in case of an affirmative 
 decision, to guard as effectually as possible against a 
 perversion of the power to the public detriment. 
 
 That we may form a correct judgment on this subject, 
 it will be proper to review the several powers conferred 
 on the government of the Union; and that this may be 
 the more conveniently done, they may be reduced into 
 different classes as they relate to the following different 
 objects: i. Security against foreign danger; 2. Regula- 
 tion of the intercourse with foreign nations; 3. Mainte- 
 nance of harmony and proper intercourse among the 
 States; 4. Certain miscellaneous objects of general 
 utility; 5. Restraint of the States from certain injurious 
 acts; 6. Provisions for giving due efficacy to all these 
 powers. 
 
 The powers falling within the first class are those of 
 declaring war and granting letters of marque; of provid- 
 ing armies and fleets; of regulating and calling forth the 
 militia; of levying and borrowing money. 
 
 Security against foreign danger is one of the primitive 
 objects of civil society. It is an avowed and essential 
 object of the American Union. The powers requisite 
 for attaining it must be effectually confided to the federal 
 councils. 
 
 Is the power of declaring war necessary? No man will 
 answer this question in the negative. It would be super- 
 
i62 PHOVlSlO^rS POU iVAk. tNo. 41(40) 
 
 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 
 necessary? This is involved in the foregoing power. It 
 is involved in the power of self-defense. 
 
 But was it necessary to give an indefinite power of 
 raising troops as well as providing fleets; and of 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 
 See of them in this place. The answer indeed 
 
 Wo. 8, seems to be so obvious and conclusive as 
 
 scarcely to justify such a discussion in any place. With 
 what color of propriety could the force necessary for 
 defense be limited by those who cannot limit the force 
 of offense? If a federal Constitution could chain the 
 ambition or set bounds to the exertions of all other 
 nations, then indeed might it prudently chain the dis- 
 cretion of its own government, and set bounds to the 
 exertions for its own safety. 
 
 How could a readiness for war in time of peace be safely pro- 
 hibited, unless we could prohibit, in like manner, the preparations 
 and establishments of every hostile nation ? The means of 
 security can only be regulated by the means and the danger of 
 attack. They will, in fact, be ever determined by these rules and 
 by no others. It is in vain to oppose constitutional barriers to the 
 impulse of self-preservation. It is worse than in vain ; because it 
 plants in the Constitution itself necessary usurpations of power, 
 every precedent of which is a germ of unnecessary and multiplied 
 repetitions. If one nation maintains constantly a disciplined 
 army, ready for the service of ambition or revenge, it obliges the 
 most pacific nations who may be within the reach of its 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 establish- 
 ments, the same event might follow. The veteran legions of 
 
Madison] UNION A DEFENSE IN ITSELF. 263 
 
 Rome were an overmatch for the undisciplined valor of all other 
 nations and rendered her the mistress of the world. 
 
 Not the less true is it that the liberties of Rome proved the 
 final victim to her military triumphs ; and that the liberties of 
 Europe, as far as they ever existed, have, with few exceptions, 
 been the price of her military establishments. A standing force, 
 therefore, is a dangerous, at the same time that it may be a neces- 
 sary, 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 be- 
 come essential to its safety, will exert all its prudence in diminish- 
 ing both the necessity and the danger of resorting to one which 
 may be inauspicious to its liberties. 
 
 The clearest marks of this prudence are stamped on the pro- 
 posed Constitution. The Union itself, which it cements and 
 secures, destroys every pretext for a military establishment which 
 could be dangerous. America united, with a handful of troops, 
 or without a single soldier, exhibits a more forbidding posture to 
 foreign ambition than America disunited, with a hundred thousand 
 veterans ready for combat. It was remarked on a former occa- 
 sion that the want of this pretext had saved the liberties of one 
 nation in Europe. Being rendered by her insular situation 
 and her maritime resources impregnable to the armies of her 
 neighbors, the rulers of Great Britain have never been able, by 
 reaKor artificial dangers, to cheat the public into an extensive 
 peace establishment. The distance of the United States from the 
 powerful nations of the world gives them the same happy security. 
 A dangerous establishment can never be necessary or plausible, 
 so long as they continue a united people. But let it never, for a 
 moment, be forgotten that they are indebted for this advantage to 
 the Union alone. The moment of its dissolution will be the date 
 of a new order of things. The fears of the weaker, or the ambition 
 of the stronger, States or Confederacies, will set the same example 
 in the New, as Charles VII. did in the Old World. The example 
 will be followed here from the same motives which produced 
 universal imitation there. Instead of deriving from our situation 
 the precious advantage which Great Britain has derived from hers, 
 the face of America will be but a copy of that of the continent 
 of Europe. It will present liberty everywhere crushed between 
 standing armies and perpetual taxes. The fortunes of disunited 
 America will be even more disastrous than those of Europe. The 
 
264 LIMIT OF REVENUE FOR ARMY. INo. 41 (40) 
 
 sources of evil in tlie latter are confined to her own limits. No 
 superior powers of another quarter of the globe intrigue among 
 her rival nations, inflame their mutual animosities, and render 
 them the instruments of foreign ambition, jealousy, and revenge. 
 In America the miseries springing from her internal jealousies, 
 contentions, and wars, would form a part only of her lot. A 
 plentiful addition of evils would have their source in that relation 
 in which Europe stands to this quarter of the earth, and which no 
 other quarter of the earth bears to Europe. 
 
 This picture of the consequences of disunion cannot be too 
 highly colored or too often exhibited. Every man who loves 
 peace, every man who loves his country, every man who loves, 
 liberty, ought to have it ever before his eyes, that he may cherish 
 in his heart a due attachment to the Union of America, and be 
 able to seta due value on the means of preserving it. 
 
 Next to the effectual establishment of the Union, the best possi- 
 ble precaution against danger from standing armies is a limitation 
 of the term for which revenue may be appropriated to their sup- 
 port. This precaution the Constitution has prudently added. I 
 will not repeat here the observations which I flatter myself have 
 placed this subject in a just and satisfactory light. But it may 
 not be improper to take notice of an argument against this part of 
 the Constitution which has been drawn from the policy and prac- 
 tice of Great Britain. It is said that the continuance of an army 
 in that kingdom requires an annual vote of the legislature; whereas 
 the American Constitution has lengthened this critical period to 
 two years. This is the form in which the comparison is usually 
 stated to the public : but is it a just form .' Is it a fair compari- 
 son ? Does the British Constitution restrain the parliamentary 
 discretion to one year? Does the American impose on the Con- 
 gress appropriations for two years ? On the contrary, it cannot 
 be unknown to the authors of the fallacy themselves that the 
 British Constitution fixes no limit whatever to the discretion of 
 the legislature, and that the American ties down the legislature to 
 two years, as the longest admissible term. 
 
 Had the argument from the British example been truly stated, 
 it would have stood thus : The term for which supplies may be 
 appropriated to the army establishment, though unlimited by the 
 British Constitution, has nevertheless, in practice, been limited by 
 parliamentary discretion to a single year. Now, if in Great 
 Britain, where the House of Commons is elected for seven years ; 
 where so great a proportion of the members are elected by so 
 small a proportion of the people ; where the electors are so cor- 
 
Madison] NECESSITY FOR A NAVY. 265 
 
 rupted by the representatives, and the representatives so corrupted 
 by the Crown,' the representative body can possess a power to 
 make appropriations to the army for an indefinite term, without 
 desiring or without daring to extend the term beyond a single 
 year, ought not suspicion herself to blush, in pretending that the 
 representatives of the United States, elected freely by the 
 WHOLE BODY of the people every SECOND YEAR, cannot be safely 
 intrusted with the discretion over such appropriations, expressly 
 limited to the short period of TWO YEARS ? 
 
 A bad cause seldom fails to betray itself. Of this truth, the 
 management of the opposition to the federal government is an 
 unvaried exemplification. But among all the blunders which have 
 been committed, none is more striking than the attempt to enlist 
 on that side the prudent jealousy entertained by the people, of 
 standing armies. The attempt has awakened fully the public 
 attention to that important subject ; and has led to investigations 
 which must terminate in a thorough and universal conviction, not 
 only that the Constitution has provided the most effectual guards 
 against danger from that quarter, but tjiat nothing short of a Con- 
 stitution fully adequate to the national defense and the preserva- 
 tion of the Union can save America from as many standing armies 
 as it may be split into States or Confederacies, and from such a 
 progressive augmentation of these establishments in each as will 
 render them as burdensome to the properties and ominous to the 
 liberties of the people as any establishment that can become 
 necessary, under a united and efficient government, must be 
 tolerable to the former and safe to the latter. 
 
 The palpable necessity of the power to provide and 
 maintain a navy has protected that part of the Constitu- 
 tion 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 extent to which the English king corrupted Parliament is well 
 shown in the tenth Report of the British Historical MSS. Commission, 
 vi. pp. 7-n.— Editor. 
 
266 DEFENSELESSNESS OF NEW YORK. [Ho. 41 (40) 
 
 The inhabitants of the Atlantic frontier are all of them 
 deeply interested in this provision for naval protection, 
 and if they have hitherto been suffered to sleep quietly 
 in their beds; if their property has remained safe against 
 the predatory spirit of licentious adventurers; if their 
 maritime towns have not yet been compelled to ransom 
 themselves from the terrors of a conflagration, by yield- 
 ing to the exactions of daring and sudden invaders, these 
 instances of good fortune are not to be ascribed to the 
 capacity of the existing government for the protection 
 of those from whom it claims allegiance, but to causes 
 that are fugitive and fallacious. If we except perhaps 
 Virginia and Maryland, which are peculiarly vulnerable 
 on their eastern frontiers, no part of the Union ought to 
 feel more anxiety on this subject than New York. Her 
 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 emporium of its commerce, the great reservoir of 
 its wealth, lies every moment at the mercy of events, and 
 may almost be regarded as a hostage for ignominious 
 compliances with the dictates of a foreign enemy, or 
 even with the rapacious demands of pirates and bar- 
 barians. Should a war be the result of the precarious 
 situation of European affairs, and all the unruly passions 
 attending it be let loose on the ocean, our escape from 
 insults and depredations, not only on that element, but 
 every part of the other bordering on it, will be truly 
 miraculous. In the present condition of America, the 
 States more immediately exposed to these calamities 
 have nothing to hope from the phantom of a general 
 government which now exists; and if their single re- 
 sources were equal to the task of fortifying themselves 
 against the danger, the objects to be protected would 
 be almost consumed by the means of protecting them.' 
 
 ' The reverse of this has been the experience. Although the seaport 
 cities contribute enormously to the national revenues, the fact that these 
 revenues are controlled by the central states has always prevented an 
 adequate fortification. So early as l8o6, when New York City peti- 
 
Madison] MXTErMAL TAXATION. 267 
 
 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 
 See defense, is properly thrown into the same 
 
 WoB. 30-36. class with it. This power, also, has been 
 examined already with much attention, and has, I trust, 
 been clearly shown to be necessary, both in the extent 
 and form given to it by the Constitution. I will address 
 one additional reflection only to those who contend that 
 the power ought to have been restrained to external 
 taxation — by which they mean taxes on articles imported 
 from other countries. It cannot be doubted that this 
 will always be a valuable source of revenue; that for a 
 considerable time it must be a principal source; that at 
 this moment it is an essential one. But we may form 
 very mistaken ideas on this subject, if we do not call to 
 mind in our calculations, that the extent of revenue 
 drawn from foreign commerce must vary with the varia- 
 tions, both in the extent and the kind of imports; and 
 that these variations do not correspond with the progress 
 of population, which must be the general measure of the 
 public wants. As long as agriculture continues the sole 
 field of labor, the importation of manufactures must in- 
 crease as the consumers multiply. As soon as domestic 
 manufactures are begun by the hands not called for by 
 agriculture, the imported manufactures will decrease as 
 the numbers of people increase. In a more remote 
 
 tioned Congress, and described its unprotected condition, Jefferson 
 urged upon that body that the " Atlantic frontier, from numbers, wealth, 
 and exposure to potent enemies, have a proportionate right to be defended 
 with the Western frontier, for whom we keep up three thousand men." 
 During the war of 1812, New York, Boston, and Newport were forced 
 to fortify themselves largely at their own expense, while the general gov- 
 ernment even refused troops to New England. The last appeal to Con- 
 gress to protect its greatest source of revenue was from Samuel J. 
 Tilden, in an open letter to the speaker of the House of Representatives 
 (Bigelow's " Tilden," ii. 306), in which the cause of the commercial cities 
 was admirably stated. Had New York retained possession of the 
 impost from revenues centering in her port, there would to-day be 
 fewer public buildings in Western towns, and more guns protecting her 
 harbor. — Editor. 
 
268 MISCONCEPTIONS AS TO TAXES. [No. 41 (40) 
 
 Stage, the imports may consist in a considerable part of 
 raw materials, which will be wrought into articles for 
 exportation, and will, therefore, require rather the en- 
 couragement of bounties than to be loaded with dis- 
 couraging duties. A system of government meant for 
 duration ought to contemplate these revolutions, and be 
 able to accommodate itself to them. 
 
 Some, who have not denied the necessity of the power 
 of taxation, have grounded a very fierce attack against 
 the Constitution on the language in which it is defined. 
 It has been urged and echoed, that the power "to lay 
 and collect taxes, duties, imposts, and excises, to .pay the 
 debts, and provide for the common defense and general 
 welfare of the United States," amounts to an unlimited 
 commission to exercise every power which maybe alleged 
 to be necessary for the common defense or general wel- 
 fare.' 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 objec- 
 tion might have had some color for it; though it would 
 have been difficult to find a reason for so awkward a form 
 of describing an authority to legislate in all possible cases. 
 A power to destroy the freedom of the press, the trial by 
 
 ■ It is needless to say that this power to " provide for the common 
 defense and general welfare " has been the battleground of almost every 
 question of national politics from the adoption of the constitution to the 
 present day. Alexander Johnston goes so far as to say that all issues 
 not based on this question "have been either local and temporary, 
 or selfish and misleading, and the general acceptance of any such party 
 difference would mark an imfortunate decline in the political intelligence 
 of the people." The narrow view, here expressed by Madison, he held 
 consistently, while in the opposition, it first found definite expression in 
 Jefferson's " Opinion on the Constitutionality of the National Bank" 
 (1791); Hamilton's counter-opinion on the same question is to this day 
 considered the ablest argument for the broad constructionist point of 
 view. (See Appendix, p. 651). The Democratic party has always been 
 theoretically in favor of strict construction, but in practice it has often 
 taken an opposite position. Every party in the United States has 
 shown variability on this policy, solely according to whether it held the 
 
Madison] PARTICULAR POWERS. 269 
 
 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 specifi- 
 cation of the objects alluded to by these general terms 
 immediately follows, and is not even separated by a 
 longer pause than a semicolon? If the different parts of 
 the same instrument ought to be so expounded as to give 
 meaning to every part which will bear it, shall one part 
 of the same sentence be excluded altogether from a share 
 in the meaning; and shall the more doubtful and indefi- 
 nite terms be retained in their full extent, and the clear 
 and precise expressions be denied any signification what- 
 soever? For what purpose could the enumeration of 
 particular powers be inserted, if these and all others were 
 meant to be included in the preceding general power? 
 Nothing is more natural nor common than first to use a 
 general phrase, and then to explain and qualify it by a 
 recital of particulars. But the idea of an enumeration 
 of particulars which neither explain nor qualify the general 
 meaning, and can have no other effect than to confound 
 and mislead, is an absurdity, which, as we are reduced to 
 the dilemma of charging either on the authors of the 
 objection or on the authors of the Constitution, we must 
 take the liberty of supposing had not its origin with the 
 latter. 
 
 The objection here is the more extraordinary, as it 
 
 reins of power, or was acting in the opposition. Thus the encroachments 
 or rather assumptions of new power can be divided with evenness among 
 our political parties. The Federalists chartered the United States Bank ; 
 the Democrats bought Louisiana, constructed a national road, and origi- 
 nated the first "protective" legislation and internal improvements; 
 the Whigs carried the protective theory to an extreme, and advocated 
 river and harbor improvements ; the Republicans advocated governmental 
 building of railroads, enacted the draft, and created the legal tender; 
 the Democrats forced the creation of the electoral commission, and were 
 responsible for the first institution of bounties by the silver purchase laws ; 
 the Republicans attempted to legislate federal interference in elections, 
 passed the interstate commerce law, and granted bounties in direct terms ; 
 the Democrats sought to make an income tax an indirect tax, and, against 
 the protest of a State government, used the federal authority to crush 
 insurrections. — Editor. 
 
270 COMMOPf DEFENSE FAIRLY CONSTRUED. [Ko.41(40) 
 
 appears that the language used by the convention is a 
 copy from the articles of Confederation. The objects of 
 the Union among the States, as described in article third, 
 are, "their common defense, security of their liberties, 
 and mutual and general welfare." The terms of article 
 eighth are still more identical: "All charges of war and 
 all other expenses that shall be incurred for the common 
 defense or general welfare, and allowed by the United 
 States in Congress, shall be defrayed out of a common 
 treasury," etc. A similar language again occurs in article 
 ninth. Construe either of these articles by the rules 
 which would justify the construction put on the new 
 Constitution, and they vest in the existing Congress a 
 power to legislate in all cases whatsoever. But what 
 would have been thought of that assembly, if, attaching 
 themselves to these general expressions, and disregard- 
 ing the specifications which ascertain and limit their 
 import, they had exercised an unlimited power of provid- 
 ing for the common defense and general welfare? I 
 appeal to the objectors themselves, whether they would 
 in that case have employed the same reasoning in justi- 
 fication of Congress as they now make use of against the 
 convention. How difficult it is for error to escape its 
 own condemnation! 
 
 PUBLIUS. 
 
Madison] FOREIGN INTERCOURSE. 271 
 
 No. 42 [41]. (iWm KorA i'a<r/6«<, January 22, 1788.) MadisOn. 
 
 POWERS GOVERNING INTERCOURSE WITH 
 FOREIGN NATIONS AND BETWEEN THE 
 STATES. 
 
 Regulation of intercourse with foreign nations — Ambassadors^ consuls, 
 and treaties — Punishment of piracy, felonies on the high seas, and 
 offenses against the laws of nations — Regulation of foreign commerce — 
 The sanation of the slave trade — Objection on that point considered — 
 Maintenance of harmony and proper intercourse among the states — Inter- 
 stale commerce and the Indian trade — Coinage of money — Punishment of 
 counterfeiters — Standard of weights and measures — Naturalization — 
 Bankruptcy laws — Rule for providing public acts — Post roads and post 
 offices. 
 
 To the People of the State of New York: 
 
 The second class of powers lodged in the general 
 government consists of those which regulate the inter- 
 course with foreign nations, to wit: to make treaties; to 
 send and receive ambassadors, other public ministers, and 
 consuls; to define and punish piracies and felonies com- 
 mitted on the high seas, and offenses against the law of 
 nations; to regulate foreign commerce, including a power 
 to prohibit, after the year 1808, the importation of slaves, 
 and to lay an intermediate duty of ten dollars per head, 
 as a discouragement to such importations. 
 
 This class of powers forms an obvious and essential 
 branch of the federal administration. If we are to be one 
 nation in any respect, it clearly ought to be in respect to 
 other nations. 
 
 The powers to make treaties and to send and receive 
 ambassadors speak their own propriety. Both of them 
 are comprised in the articles of Confederation, with this 
 difference only, that the former is disembarrassed by 
 the plan of the convention of an exception, under which 
 treaties might be substantially frustrated by regulations 
 of the States; and that a power of appointing and receiv- 
 ing "other public ministers and consuls," is expressly 
 and very properly added to the former provision con- 
 
272 ADMISSION OF CONSULS. [No. 42 (41) 
 
 cerning 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 con- 
 suls. Yet it has been found expedient, and has been the 
 practice of Congress, to employ the inferior grades of 
 public ministers, and to send and receive consuls.. 
 
 It is true that where treaties of commerce stipulate for 
 the mutual appointment of consuls, whose functions are 
 connected with commerce, the admission of foreign con- 
 suls may fall within the power of making commercial 
 treaties; and that, where no such treaties exist, the 
 mission of American consuls into foreign countries may 
 perhaps be covered under the authority, given by the ninth 
 article of the Confederation, to appoint all such civil 
 officers as may be necessary for managing the general 
 affairs of the United States. But the admission of con- 
 suls into the United States, where no previous treaty has 
 stipulated it, seems to have been nowhere provided for. 
 A supply of the omission is one of the lesser instances in 
 which the convention have improved on the model before 
 them. But the most minute provisions become important 
 when they tend to obviate the necessity or the pretext 
 for gradual and unobserved usurpations of power. A 
 list of the cases in which Congress have been betrayed, 
 or forced by the defects of the Confederation, into viola- 
 tions of their chartered authorities, would not a little 
 surprise those who have paid no attention to the subject; 
 and would be no inconsiderable argument in favor of the 
 new Constitution, which seems to have provided no less 
 studiously for the lesser than the more obvious and 
 striking defects of the old. 
 
 The power to define and punish piracies and felonies 
 committed on the high seas, and offenses against the law 
 of nations, belongs with equal propriety to the general 
 government, and is a-still greater improvement on the 
 
Madison] FELONY ON THE HIGH SEAS. 273 
 
 articles of Confederation. These articles contain no 
 provision for the case of offenses against the law of 
 nations; and consequently leave it in the power of any 
 indiscreet member to embroil the Confederacy with 
 foreign nations. The provision of the federal articles 
 on the subject of piracies and felonies extends no further 
 than to the establishment of courts for the trial of these 
 offenses. The definition of piracies might, perhaps with- 
 out 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 evi- 
 dently requisite. Felony is a term of loose signification, 
 even in the common law of England; and of various 
 import in the statute law of that kingdom. But neither 
 the common nor the statute law of that, or of any other 
 nation, ought to be a standard for the proceedings of 
 this, unless previously made its own by legislative adop- 
 tion. The meaning of the term, as defined in the codes 
 of the several States, would be as impracticable as the 
 former would be a dishonorable and illegitimate guide. 
 It is not precisely the same in any two of the States; and 
 varies in each with every revision of its criminal laws. 
 For the sake of certainty and uniformity, therefore, the 
 power of defining felonies in this case was in every 
 respect necessary and proper. 
 
 The regulation of foreign commerce, having fallen 
 within several views which have been taken of this sub- 
 See ject, has been too fully discussed to need 
 Wo. 11. additional proofs here of its being properly 
 submitted to the federal administration. 
 
 It were doubtless to be wished that the power of pro- 
 hibiting the importation of slaves had not been post- 
 poned until the year 1808, or rather that it had been 
 suffered to have immediate operation.' But it is not 
 
 ' The slave-trade clause was the result of a compromise, without which 
 the constitution would scarcely have commanded the votes of a majority 
 of the convention which framed, much less of the states which ratified 
 it. The Carolinas and Georgia had lost a large part of their slaves by 
 British plundering during the revolution, and possessing large tracts of 
 uncultivated land, they wished to make labor as cheap as possible by per- 
 
274 SLAVE TRADE. [No. 42 (41) 
 
 difficult to account, either for this restriction on the 
 general government, or for the manner in which the 
 See whole clause is expressed. It ought to be 
 
 No. 52. considered as a great point gained in favor 
 
 of humanity that a period of twenty years may terminate 
 forever, within these States, a traffic which has so long 
 and so loudly upbraided the barbarism of modern policy; 
 that within that period it will receive a considerable dis- 
 couragement from the federal government, and may be 
 totally abolished, by a concurrence of the few States 
 which continue the unnatural traffic, in the prohibitory 
 example which has been given by so great a majority of 
 the Union. Happy would it be for the unfortunate 
 Africans if an equal prospect lay before them of being 
 redeemed from the oppressions of their European 
 brethren! 
 
 Attempts have been made to pervert this clause into 
 an objection against the Constitution, by representing it 
 on one side as a criminal toleration of an illicit practice, 
 and on another as calculated to prevent voluntary and 
 beneficial emigrations from Europe to America. I men- 
 
 mitting the free importation of negroes. United with them in the 
 desire to maintain the slave trade were Massachusetts and Rhode Island, 
 for in these states the larger part of this profitable traffic centered. The 
 aid of the other New England states was secured by the clause giving to 
 Congress power to pass a navigation act by a simple majority, and thus by 
 the vote of the four New England states and of the three southern states, 
 against the votes of New Jersey, Pennsylvania, Delaware, and Virginia 
 (New York unrepresented in the convention), the slave trade was fastened 
 upon the country for twenty years; but for this it is probable that the 
 slavery question would hardly have assumed the serious proportions that 
 it eventually developed. Already, however, both Virginia and Mary- 
 land were finding the breeding of slaves for the southern market a 
 source of profit, and to this fact, more than to any true humanitarian 
 sentiment, was due their attitude on this question ; for the ending of the 
 slave trade meant a higher price for negroes, and therefore a greater 
 profit from them. Influenced by this desire not to close a market with- 
 out her own boundaries for the slaves already unprofitable for agri- 
 cultural purposes, Virginia in 1784 voted against the exclusion of slavery 
 from all the western territory. The enormous profits which these states 
 later secured, after the stopping of the slave trade, by raising negroes 
 for sale ill the south and west, show that they, quite as much as their 
 more southern neighbors and the New England states, were voting for 
 what seemed their best interests, regardless of moral considerations, — 
 Editor. 
 
Madison] INTER-STATE REGULATIONS. 275 
 
 tion these misconstructions, not with a view to give 
 them an answer, for they deserve none, but as specimens 
 of the manner and spirit in which some have thought fit 
 to conduct their opposition to the proposed government. 
 
 The powers included in the third class are those which 
 provide for the harmony and proper intercourse among 
 the States. 
 
 Under this head might be included the particular re- 
 straints imposed on the authority of the States, and cer- 
 tain powers of the judicial department; but the former 
 are reserved for a distinct class, and the latter will be 
 particularly examined when we arrive at the structure 
 and organization of the government. I shall confine 
 myself to a cursory review of the remaining powers com- 
 prehended under this third description, to wit: to regu- 
 late 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 counter- 
 feiting the current coin and securities of the United 
 States; to fix the stajidard of weights and measures; to 
 establish a uniform rule of naturalization, and uniform 
 laws of bankruptcy; to prescribe the manner in which 
 the public acts, records, and judicial proceedings of each 
 State shall be proved, and the effect they shall have in 
 other States; and to establish post offices and post roads. 
 
 The defect of power in the existing Confederacy to 
 regulate the commerce between its several members is 
 in the number of those which have been clearly pointed 
 out by experience. To the proofs and remarks which 
 former papers have brought into view on this subject, it 
 may be added that, without this supplemental provision, 
 the great and essential power of regulating foreign com- 
 merce would have been incomplete and ineffectual. A 
 very material object of this power was the relief of the 
 States, which import and export through other States, 
 from the improper contributions levied on them by the 
 latter. Were these at liberty to regulate the trade 
 between State and State, it must be foreseen that ways 
 would be found out to load the articles of import and 
 
276 TRADE OF CONFEDERATE STATES. [No. 42 (41) 
 
 export, during the passage through their jurisdiction, 
 with duties which would fall on the makers of the latter 
 and the consumers of the former. We may be assured 
 by past experience that such a practice would be intro- 
 duced by future contrivances; and both by that and a 
 common knowledge of human affairs, that it would 
 nourish unceasing animosities, and not improbably ter- 
 minate in serious interruptions of the public tranquillity. 
 To those who do not view the question through the 
 medium of passion or of interest, the desire of the com- 
 mercial 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 en- 
 larged and permanent interest, is but too often drowned, 
 before public bodies as well as individuals, by the clamors 
 of an impatient avidity for immediate and immoderate 
 gain. 
 
 The necessity of a superintending authority over the 
 reciprocal trade of confederated States, has been illus- 
 trated by other examples as well as our own. In Switzer- 
 land, 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 quo- 
 tation in an antecedent paper that the practice in this, 
 as in many other instances in that confederacy, has not 
 foUov/ed 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 mem- 
 bers, one is that they shall not establish imposts disad- 
 vantageous to their neighbors, without the general 
 permission. 
 
 The regulation of commerce with the Indian tribes is 
 
Madison] POWER TO COIN MONEY. 277 
 
 very properly unfettered from two limitations in the 
 articles of Confederation, which render the provision ob- 
 scure and contradictory. The power is there restrained 
 to Indians, not members of any of the States, and is not 
 to violate or infringe the legislative right of any State 
 within its own limits. What description of Indians are 
 to be deemed members of a State is not yet settled, and 
 has been a question of frequent perplexity and conten- 
 tion in the federal councils. And how the trade with 
 Indians, though not members of a State, yet residing 
 within its legislative jurisdiction, can be regulated by 
 an external authority, without so far intruding on the 
 internal rights of legislation, is absolutely incomprehen- 
 sible. This is not the only case in which the articles of 
 Confederation have inconsiderately endeavored to ac- 
 complish impossibilities; to reconcile a partial sover- 
 eignty 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 sup- 
 plied a material omission in the articles of Confederation. 
 The authority of the existing Congress is restrained to 
 the regulation of coin struck by their own authority or 
 that of the respective States. It must be seen at once 
 that the proposed uniformity in the value of the current 
 coin might be destroyed by subjecting that of foreign 
 coin to the different regulations of the different States. 
 
 The punishment of counterfeiting the public securities, 
 as well as the current coin, is submitted of course to 
 that authority which is to secure the value of both. 
 
 The regulation of weights and measures is transferred 
 from the articles of Confederation, and is founded on 
 like considerations with the preceding power of regulat- 
 ing coin. 
 
 The dissimilarity in the rules of naturalization has 
 long been remarked as a fault in our system, and as lay- 
 ing a foundation for intricate and delicate questions. In 
 
278 NATURALIZATION. [No. 42 (41) 
 
 the fourth article of the Confederation it is declared 
 " that the/r^i? inhabitants of each of these States, paupers, 
 vagabonds, and fugitives from justice excepted, shall be 
 entitled to all privileges and immunities of free citizens 
 in the several States; and the people of each State shall, 
 in every other, enjoy all the privileges of trade and com- 
 merce," 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, 
 anA people in another; or what was meant by superadding 
 to "all privileges and immunities of free citizens," "all 
 the privileges of trade and commerce," cannot easily be 
 determined. It seems to be a construction scarcely 
 avoidable, however, that those who come under the 
 denomination of free inhabitants of a State, although not 
 citizens of such State, are entitled, in every other State, 
 to all the privileges of free citizens of the latter : that is, 
 to greater privileges than they may be entitled to in their 
 own State; so that it may be in the power of a particular 
 State, or rather every State is laid under a necessity, 
 not only to confer the rights of citizenship in other 
 States upon any whom it may admit to such rights within 
 itself, but upon any whom it may allow to become in- 
 habitants within its jurisdiction. But were an exposition 
 of the term " inhabitants " to be admitted which would 
 confine the stipulated privileges to citizens alone, the 
 difficulty is diminished only, not removed. The very 
 improper power would still be retained by each State of 
 naturalizing aliens in every other State. In one State, 
 residence for a short term confirms all the rights of 
 citizenship; in another, qualifications of greater impor- 
 tance are required. An alien, therefore, legally incapac- 
 itated 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 ser- 
 ious embarrassments on this subject have been hitherto 
 escaped. By the laws of several States, certain descrip- 
 
Madison] PUBLIC ACTS AND RECORDS. 279 
 
 tions of aliens,' who had rendered themselves obnoxious, 
 were laid under interdicts inconsistent not only with the 
 rights of citizenship but with the privilege of residence. 
 What would have been the consequence if such persons, 
 by residence or otherwise, had acquired the character of 
 citizens under the laws of another State, and then asserted 
 their rights as such, both to residence and citizenship, 
 within the State proscribing them? Whatever the legal 
 consequences might have been, other consequences would 
 probably have resulted of too serious a nature not to be 
 provided against. The new Constitution has accord- 
 ingly, 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 
 government to establish a uniform rule of naturalization 
 throughout the United States. 
 
 The power of establishing uniform laws of bankruptcy 
 is so intimately connected with the regulation of com- 
 merce, and will prevent so many frauds where the parties 
 or their property may lie or be removed into different 
 States, that the expediency of it seems not likely to be 
 drawn into question. 
 
 The power of prescribing by general laws the manner 
 in which the public acts, records, and judicial proceed- 
 ings of each State shall be proved, and the effect they 
 shall have in other States, is an evident and valuable 
 improvement on the clause relating to this subject in the 
 articles of Confederation. The meaning of the latter is 
 extremely indeterminate, and can be of little importance 
 under any interpretation which it will bear. The power 
 here established may be rendered a very convenient 
 instrument of justice, and be particularly beneficial on 
 the borders of contiguous States, where the effects liable 
 to justice may be suddenly and secretly translated, in 
 any stage of the process, within a foreign jurisdiction. 
 
 The power of establishing post roads must in every 
 view be a harmless power, and may perhaps by judi- 
 
 ' The loyalists.— Editor. 
 
28o MISCELLANEOUS POWERS. [No. 42 (41) 
 
 cious management become productive of great public 
 conveniency. Nothing which tends to facilitate the 
 intercourse between the States can be deemed unworthy 
 of the public care/ Puflius. 
 
 No. 43 [42]. (/«rfe>«»<ffK</o«r»a/, January 23, 1788.) MadisOn. 
 
 MISCELLANEOUS POWERS. 
 
 Miscellaneous powers — Copyrights and patents — The federal city — 
 Punishment of treason — Admission oj new states — Government of terri- 
 tories and control of public property — Guaranty to every state of a repub- 
 lican form of government — Protection of state against invasion and 
 against domestic violence — Assumption of payment of outstanding debts 
 — Amendments to the constitution — The establishment of this govern- 
 ment on the adherence of nine states — Objection that this is a violation 
 of the confederation — Relations between ratifying states and those which 
 refuse to ratify. 
 
 To the People of the State of New York : 
 
 The fourth class comprises the following miscellaneous 
 powers : 
 
 I. A power "to promote the progress of science and 
 useful arts, by securing, for a limited time, to authors 
 
 ' This question of public or internal improvement, here so briefly 
 touched upon, has been one of the gravest questions of party politics in 
 national history, and probably has done more to increase the power of 
 the general government than any other single factor in our development. 
 This is owing to the fact that the newer states have generally been those 
 in which the true democratic spirit was strongest, yet which by their 
 real poverty were the most eager to have public improvements under- 
 taken by the general government, thus largely neutralizing their natural 
 jealousy of national assumption of power. The first true step in 
 this direction was the undertaking of the Cumberland road, a measure 
 carried by the western Democrats in 1808 and approved by Jefferson. 
 So powerfully did the sentiment express itself that, though contrary to 
 his real belief, Jefferson was induced to recommend to Congress the under- 
 taking of ' ' roads, rivers, canals, and such other objects of public improve- 
 ment as it may be thought proper " (though he stipulated that this should 
 be preceded by an amendment to the constitution), and his Secretary of 
 the Treasury in 1808 recommended to Congress the voting of $16,000,000 
 for the construction of public roads. After a ten-years' fight of the 
 Democrats in Congress against the strict construction views of their own 
 Presidents (Madison and Monroe), in 1823 the first appropriation for 
 
Madison] COPVRIGHT AND PATENTS. 281 
 
 and inventors, the exclusive right to their respective 
 writings and discoveries." 
 
 The utility of this power will scarcely be questioned. 
 The copyright of authors has been solemnly adjudged, 
 in Great Britain, to be a right of common law. The 
 right to useful inventions seems with equal reason to 
 belong to the inventors. The public good fully coincides 
 in both cases with the claims of individuals. The States 
 cannot separately make effectual 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 
 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 govern- 
 ment of the United States; and to exercise like authority 
 over all places purchased by the consent of the legisla- 
 tures of the States in which the same shall be, for the 
 erection of forts, magazines, arsenals, dockyards, and 
 other needful buildings." 
 
 harbor improvement was carried, and the next year a bill authorizing 
 surveys for a national canal was passed. With the accession of Jackson 
 the movement encountered an opponent who checked its further progress 
 for eight years. Several river and harbor bills were passed by succeed- 
 ing Congresses, only to be vetoed by the President holding office. Failing 
 in this attempt at extension the Democratic party tried to attain the 
 wishes of its masses, without completely stultifying its concept of national 
 powers, by distributing to the states surplus revenue, that public im- 
 provements might be made by them. A further expansion came in 1850 
 with the grant of public lands to encourage the building of railroads ; this 
 was quickly followed by the governmental survey of a road to the Pacific, 
 by the declaration in both party platforms that such a railroad should be 
 built by the government, and by the voting of the nation's credit to help 
 build it. In 1870 a river and harbor bill was made a law ; and though 
 that has become an annual bill, it is still likely to be vetoed, not 
 because its constitutionality is longer debatable, but because of the 
 "jobs" it embodies. Finally, through this very "post-road" clause, 
 together with the power to regulate commerce, the government by the 
 recent interstate commerce law has practically extended its control to all 
 railroads (for the tendency to consolidate small roads into great systems 
 will probably put them all shortly under the interstate law). How 
 absolute this power has become is shown by the late "government by 
 injunction"; by the use of federal troops to protect railroads; and by the 
 construing of the anti-trust law so as to control the traffic agreements of 
 the railroads. — Editor. 
 
282 SEAT OF GOVERNMENT. [No. 43 (42) 
 
 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 suprem- 
 acy. Without it, not only the public authority might be 
 insulted and its proceedings interrupted with impunity; 
 but a dependence of the members of the general govern- 
 ment on the State comprehending the seat of the govern- 
 ment, 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 inhabit- 
 ants will find sufficient inducements of interest to be- 
 come willing parties to the cession; as they will have 
 had their voice in the election of the government which 
 is to exercise authority over them; as a municipal 
 legislature for local purposes, derived from their own 
 suffrages, will of course be allowed them;^ and as the 
 
 ' The experience of the Congress of the Confederation proved the 
 evils of a seat in a city over which it had no jurisdiction, for when 
 a small part of the Pennsylvania militia mutinied in 1783, and threatened 
 Congress with violence, the Pennsylvania Council refused to use force to 
 suppress the soldiers, and compelled Congress in self-protection to adjourn 
 to Princeton. — Editor. 
 
 * As a fact, the history of the District of Columbia has been very dif- 
 ferent, Congress having retained a control over the capital more absolute 
 even than that over the territories, save only in the years 1871-74, when 
 a "territorial" degree of local self-government was allowed to it, which 
 
Madison] TREASON. 283 
 
 authority of the legislature of the State, and of the in- 
 habitants of the ceded part of it, to concur in the ces- 
 sion, will be derived from the whole people of the State, 
 in their adoption of the Constitution, every imaginable 
 objection seems to be obviated. 
 
 The necessity of a like authority over forts, magazines, 
 etc., established by the general government, is not less 
 evident. The public money expended on such places, 
 and the public property deposited in them, require that 
 they should be exempt from the authority of the particu- 
 lar State.' Nor would it be proper for the places on 
 which the security of the entire Union may depend, to 
 be in any degree dependent on a particular member of it. 
 All objections and scruples are here also obviated by 
 requiring the concurrence of the States concerned in 
 every such establishment. 
 
 3. "To declare the punishment of treason, but no 
 attainder of treason shall work corruption of blood, or 
 forfeiture, except during the life of the person at- 
 tainted." 
 
 As treason may be committed against the United 
 States, the authority of the United States ought to be 
 enabled to punish it. But as newfangled 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 constitu- 
 tional definition of the crime, fixing the proof necessary 
 for conviction of it, and restraining the Congress, even 
 
 resulted in the scandals of " Boss " Shepherd. So far from being allowed 
 to conduct their own government, its residents are granted no voice in 
 national elections unless they claim residence and have formerly voted 
 elsewhere ; in that case, they may return to that place and cast their 
 votes. — Editor. 
 
 ' It was this national ownership of forts which allowed Buchanan to 
 notify the South Carolina senators that Fort Sumter " belonged to the 
 United States. . . and if assaulted by the authorities of South Carolina, 
 on them would rest the exclusive responsibility of commencing civil war." 
 — Editor. 
 
284 NEW STATES. [No. 43 (42) 
 
 in punishing it, from extending the consequences of 
 guilt beyond the person of its author. 
 
 4. "To admit new States into the Union; but no new 
 State shall be formed or erected within the jurisdiction 
 of any other State; nor any State be formed by the 
 junction of two or more States, or parts of States, with- 
 out the consent of the legislatures of the States con- 
 cerned, as well as of the Congress." ' 
 
 ■ Under the treaty of 1783 a large tract of land bounded by the great 
 lakes, the Mississippi, and parallel 31°, was confirmed to the United States. 
 Although the whole territory was actually vested in several states; its pos- 
 session was thus complicated by conflicting claims, and even by the asser- 
 tion of certain states that these lands fairly belonged to the nation and 
 not to the individual states. The difficulty was finally settled by each 
 state ceding to the nation its rights and claims conditional on the terri- 
 tory being eventually made into states and allowed to join the Union. 
 This particular clause was inserted in the constitution, that these con- 
 ditions might be fulfilled. 
 
 The clause relating to possible division of the old states was undoubt- 
 edly forced on the framers by the ferment in Kentucky at this time, that 
 section being then part of Virginia, although for four years it had been 
 petitioning Congress for statehood. So, too, the western territory of 
 North Carolina had revolted from the parent State, and had set up a sepa- 
 rate statehood under the title of " Franklin." Vermont also had secured 
 its independence from New York. In each case the legislature of the 
 parent state was brought to consent to such separation, and this was later 
 true in the creation of the state of Maine, originally a part of Massa- 
 chusetts. It would have been difficult, in view of this clause, for Congress 
 and the supreme court to meet the possible threatened division of New 
 York state (see p. xxvi); but presumably the flexibility of our government 
 would have found some means of getting over the constitutional difficulty. 
 The creation of the state of West Virginia during the Civil War was 
 made constitutional by the invention of a legal fiction. The forty 
 western or " over-the-mountain counties," which were strongly unionist, 
 voted against the secession of the state in the Virginia convention of 
 1861, and when the convention passed the secession ordinance, they 
 called another convention and repealed it. They then declared their 
 separation from eastern Virginia, framed a constitution, and asked recog- 
 nition by the Union. Though this was the very division guarded against 
 by this clause, the stress of war forced a recognition, which was given 
 on the quibble that the legislature of Western Virginia was the legal 
 legislature of Virginia. Fernando Wood's proposition in 1861, that New 
 York city should secede from the Union and make itself a free city, 
 (McPherson's " History of the Rebellion," p. 42), hardly falls within the 
 conditions of the clause, for it was essentially based on a right of 
 force and not of law. The more recent issue raised by the advocacy 
 of a new state made up of the so-called New York ' ' metropolitan dis- 
 trict," however, comes within the provision of the clause, and may pos- 
 sibly produce a constitutional question in the future. 
 
 In this clause the framers made no provision for the acquisition of ter- 
 
Madison] ADMISSION OF BRITISH COLONIES. 285 
 
 In the articles of Confederation, no provision is found 
 on this important subject. Canada was to be admitted 
 of right, on her joining in the measures of the United 
 States; and the other colonies, by which were evidently 
 meant the other British colonies, at the discretion of 
 nine States. The eventual establishment of tiew States 
 seems to have been overlooked by the compilers of that 
 instrument. We ha^e seen the inconvenience of this 
 omission, and the assumption of power into which Con- 
 
 ritory by the , Union, and this strange oversight caused Jefferson great 
 embarrassment when the purchase of Louisiana was arranged, for in his 
 own words, it made " waste paper " of the constitution, and he went so 
 far as to draft an amendment to the constitution (see Appendix p. 686), 
 dealing with what he said was "the case of a guardian, investing the 
 money of his ward in purchasing an important adjacent territory ; saying 
 to him when of age, ' I did this for your good ; I pretend to no right to 
 bind you: you may disavow me. ' " Some of the northern states, which 
 saw in this addition of territory a destruction of balance betweei^ the 
 north and south, protested against the acquisition ; but, as a fact, ini^l^ 
 from the territory so secured that those northwestern states were created 
 which were eventually to give political supremacy to the north in tlfc 
 sectional issues of 1820-1860. In time the south came to realize thisjfc 
 and vainly sought, by the Mexican war and by the proposed purchase of 
 Cuba, to counteract the result. Since the acquisition of Louisiana, con- 
 stant additions have been made to our territory, (l) by permitting foreign 
 countries to become states (Texas) ; (2) by conquest (California, etc.); 
 and (3) by purchase (Alaska). 
 
 A far graver constitutional difficulty, for which the framers likewise 
 made no constitutional provision, is the distinct future possibility that 
 through an unsuccessful war there may come a necessity for the ceding 
 of territory. Great Britain attempted to obtain this in 1814, by demand- 
 ing not merely the creation of a neutral Indian territory in the west, but 
 even the joining to Canada of parts of Maine and New York. Yet both 
 these latter sections were the property of the states, and not of the nation, 
 and therefore it is difficult to see how any cession of them could have 
 been made by treaty, should our necessities have compelled the accept- 
 ance of the terms. As yet we still possess territory owned by the nation , 
 which might be legally alienated, but the time is not far distant when all 
 the territories will be states. Presumptively, the nation could then only 
 meet a demand for territorial cession by allowing the foreign country to 
 take possession of the territory, leaving it solely to the state to protect 
 itself, much as New England was left to secure itself in the War of 1S12. 
 Two significant facts are the clause in the articles of Confederation 
 " that no state shall be deprived of territory for the benefit of the United 
 States," which was omitted in the federal constitution, and the agreement 
 in the Ashburton treaty of 1842 respecting the disputed boundary between 
 British America and Maine, by which land claimed by the latter was con- 
 firmed to Great Britain, and Maine was pecuniarily indemnified for the 
 loss. — Editor. 
 
286 WESTERN TERRITORY. [No.43(48j 
 
 gress have been led by it. With great propriety, there- 
 fore, 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 prin- 
 ciples which ought to govern such transactions. The 
 particular precaution against the erection of new States 
 by the partition of a State without its consent quiets the 
 jealousy of the larger States; as that of the smaller is 
 quieted by a like precaution against a junction of States 
 without their consent.' 
 
 5. "To dispose of and make all needful rules and 
 regulations respecting the territory or other property 
 belonging to the United States, with a proviso, that 
 nothing in the Constitution shall be so construed as to 
 prejudice any claims of the United States, or of any par- 
 ticular State." 
 
 This is a power of very great importance, and required 
 by considerations similar to those which show the pro- 
 priety of the former. The proviso annexed is proper in 
 itself, and was probably rendered absolutely necessary 
 by jealousies and questions concerning the Western 
 territory sufificiently known to the public. 
 
 6. "To guarantee to every State in the Union a 
 
 ' In 1799 Alexander Hamilton, in outlining what he thought the 
 Federalist policy should be, wrote : ' ' Happy would it be if a clause 
 could be added to the constitution, enabling Congress, on the application 
 of any considerable portion of a state containing not less than a hundred 
 thousand persons, to erect it into a separate state, on the condition of 
 fixing the quota of contributions which it shall make towards antecedent 
 debts, if any there shall be, reserving to Congress the authority to levy 
 within such state the taxes necessary to the payment of such quota, in 
 case of neglect on the part of the state. The subdivision of the great 
 states is indispensable to the security of the general government, and 
 with it of the Union. Great states will always feel a rivalship with 
 the common head, will often be supposed to machinate against it, and in 
 certain situations will be able to do it with decisive effect. The sub- 
 division of such states ought to be a cardinal point in the federal policy ; 
 and small states are doubtless adapted to the purposes of local regulation 
 and to the preservation of the republican spirit. This suggestion, how- 
 ever, is merely thrown out for consideration. It is feared that it would 
 be inexpedient and even dangerous to propose, at this time, an amend- 
 ment of the kind." — Editor. 
 
Madiaon] MONARCHICAL INNOVATIONS. 287 
 
 republican form of government; to protect each of them 
 against invasion; and on application of the legislature, 
 or of the executive (when the legislature cannot be con- 
 vened), against domestic violence." 
 
 In a confederacy founded on republican principles, 
 and composed of republican members, the superintend- 
 ing government 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 institutions of each other; and the greater 
 right to insist that the forms of government under 
 which the compact was entered into should be sub- 
 stantially maintained. But a right implies a remedy; 
 and where else could the remedy be deposited than 
 where it is deposited by the Constitution? Govern- 
 ments of dissimilar principles and forms have been 
 found less adapted to a federal coalition of any sort 
 than those of a kindred nature. "As the confederate 
 republic of Germany,'' says Montesquieu, "consists of 
 free cities and petty states, subject to different princes, 
 experience shows us that it is more imperfect than 
 that of Holland and Switzerland." " Greece was 
 undone," he adds, "as soon as the king of Macedon 
 obtained a seat among the Amphictyons." In the latter 
 case, no doubt, the disproportionate force, as well as the 
 monarchical form, of the new confederate, had its share 
 of influence on the events. It may possibly be asked, 
 what need there could be of such a precaution, and 
 whether it may not become a pretext for alterations in 
 the State governments, without the concurrence of the 
 States themselves. These questions admit of ready 
 answers. If the interposition of the general government 
 should not be needed, the provision for such an event 
 will be a harmless superfluity only in the Constitution. 
 But who can say what experiments may be produced by 
 the caprice of particular States, by the ambition of enter- 
 prising leaders, or by the intrigues and influence of 
 foreign powers? To the second question it may be 
 
z8S FEDERAL PROTECTION. [No. 48(42) 
 
 answered that, if the general government should inter- 
 pose by virtue of this constitutional authority, it will 
 be of course bound to pursue the authority. But the 
 authority extends no further than to a guaranty of a 
 republican form of government, which supposes a pre- 
 existing government of the form which is to be guaran- 
 teed. 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-republi- 
 can constitutions; a restriction which, it is presumed, 
 will hardly be considered as a grievance. 
 
 A protection against invasion is due from every society 
 to the parts composing it. The latitude of the expression 
 here used seems to secure each State, not only against 
 foreign hostility, but against ambitious or vindictive 
 enterprises of its more powerful neighbors. The history 
 both of ancient and modern confederacies proves that 
 the weaker members of the union ought not to be insensi- 
 ble to the policy of this article. 
 
 Protection against domestic violence is added with 
 equal propriety. It has been remarked that, even among 
 the Swiss cantons, which, properly speaking, are not 
 under one government, provision is made for this object; 
 and the history of that league informs us that mutual aid 
 is frequently claimed and afforded; and as well by the 
 most democratic as the other cantons. A recent and 
 well-known event among ourselves has warned us to be- 
 prepared for emergencies of a like nature. ' 
 
 At first view, it might seem not to square with the 
 republican theory to suppose either that a majority have 
 not the right, or that a minority will have the force to 
 subvert a government; and consequently, that the federal 
 interposition can never be required but when it would 
 
 ' Shays's Rebellion. — Editor. 
 
Madison] STJiENGm 6F MIMORITV. 289 
 
 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 vio- 
 lence be formed as well by a majority of a State, especially 
 a small State, as by a majority of a county, or a district 
 of the same State, and if the authority of the State ought, 
 in the latter case, to protect the local magistracy, ought 
 not the federal authority, in the former, to support the 
 State authority? Besides, there are certain parts of 
 the State constitutions which are so interwoven with the 
 federal Constitution that a violent blow cannot be given 
 to the one without communicating the wound to the 
 other. Insurrections in a State will rarely induce a 
 federal interposition, unless the number concerned in 
 them bear some proportion to the friends oi 'government. 
 It will be much better that the violence m^such cases 
 should be repressed by the superintending jijawer than 
 that the majority should be left to maintain tneJf cause 
 by a bloody and obstinate contest. The existence of a 
 right to interpose will generally prevent the necessitytef 
 exerting it. "-•a* '4 
 
 Is it true that force and right are necessirtly'-i^tSSth® 
 same side in republican governments? Mdy«'net' the 
 minor party possess such a superiority of pecuniary 
 resources, of military talents and experience, or of secret 
 succors from foreign powers, as will render it superior 
 also in an appeal to the sword? j^^i%iot a more com- 
 pact and advantageous position''5^ ^^^ scale on the 
 same side, against a superior n,JJ<tber so situated as to be 
 less capable df^a prompt and collected exertion of its 
 strength?. .^N^hing can be more chimerical than to 
 imagine that, in a trial of actual force, victory may be 
 calculated by the rules which prevail in a census of the 
 inhabitants, or which determine the event of an election! 
 May it not happen, in fine, that the minority of citizens 
 may become a -majority of persons, by the accession of 
 alien residents, of a casual concourse of adventurers, or 
 of those whom the constitution of the State has not 
 admitted to the rights of suffrage? I take no notice of 
 
296 QlfELLiNd WStJRliECTIOM. LNo. 4S (42) 
 
 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 tem- 
 pestuous scenes of civil violence, may emerge into the 
 human character and give a superiority of strength to 
 any party with which they may associate themselves.' 
 
 In cases where it may be doubtful on which side justice 
 lies, what better umpires could be desired by two violent 
 factions, flying to arms and tearing a State to pieces, 
 than the representatives of confederate States, not heated 
 by the local flame? To the impartiality of judges, they 
 would unite the affection of friends. Happy would it be 
 if such^ remedy for its infirmities could be enjoyed by 
 all free governments; if a project equally effectual could 
 be established for the universal peace of mankind! 
 
 Should it be asked, what is to be the redress for an 
 insurrection pervading all the States, and comprising a 
 superiority of the entire force, though not a constitutional 
 right? the answer must be that such a case, as it would 
 be without the compass of human remedies, so it is for- 
 tunately not within the compass of human probability; 
 and that it is a sufficient recommendation of the federal 
 Constitution that it diminishes the risk of a calamity for 
 which no possible constitution can provide a cure. 
 
 Among the advantages of a confederate republic 
 enumerated by Montesquieu an important one is, "that 
 should a popular insurrection happen in one of the States, 
 the others are able to quell it. Should abuses creep 
 into one part, they are reformed by those that remain 
 sound." 
 
 7. "To consider all debts contracted, and engagements 
 entered into, before the adoption of this Constitution, as 
 being no less valid against the United States, under this 
 Constitution, than under the Confederation." 
 
 This can only be considered as a declaratory proposi- 
 tion; and may have been inserted, among other reasons, 
 for the satisfaction of the foreign creditors of the United 
 
 ' An allusion to the southern slaves. — Editor 
 
Madison] AMENDMENTS. 291 
 
 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 discov- 
 ery may be told, what few others need to be informed of, 
 that, as engagements are in their nature reciprocal, an 
 assertion of their validity on one side necessarily involves 
 a validity on the other side; and that, as the article is 
 merely declaratory, the establishment of the principle in 
 one case is sufficient for every case. They may be further 
 told that every constitution must limit its precautions to 
 dangers that are not altogether imaginary; and that no 
 real danger can exist that the government would dare, 
 with or even without this constitutional declaration 
 before it, to remit the debts justly due to the public, on 
 the pretext here condemned. 
 
 8. " To provide for amendments to be ratified by three- 
 fourths of the States, under two exceptions only." 
 
 That useful alterations will be suggested by experience 
 could not but be foreseen. It was requisite, therefore, 
 that a mode for introducing them should be provided. 
 The mode preferred by the convention seems to be 
 stamped with every mark of propriety. It guards equally 
 against that extreme facility which would render the 
 Constitution too mutable, and that extreme difficulty 
 which might perpetuate its discovered faults. It, more- 
 over, equally enables the general and the State govern- 
 ments to originate the amendment of errors, as they may 
 be pointed out by the experience on one side or on the 
 other. The exception in favor of the equality of suffrage 
 in the Senate was probably meant as a palladium to the 
 residuary sovereignty of the States, implied and secured 
 by that principle of representation in one branch of the 
 
292 RA TIFICA TtOlf. fNo- 43 (42) 
 
 legislature; and was probably insisted on by the States 
 particularly attached to that equality. The other excep- 
 tion must have been admitted on the same considerations 
 which produced the privilege defended by it.' 
 
 9. "The ratification of the convention of nine States 
 shall be sufficient for the establishment of this Constitu- 
 tion between the States, ratifying the same." 
 
 This article speaks for itself. The express authority 
 of the people alone could give due validity to the Consti- 
 tution. 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 fore- 
 sight in the convention which our own experience would 
 have rendered inexcusable. 
 
 Two questions of a very delicate nature present 
 themselves on this occasion: i. On what principle the 
 Confederation, which stands in the solemn form of a 
 compact among the States, can be superseded without the 
 unanimous consent of the parties to it? 2. What rela- 
 tion is to subsist between the nine or more States ratify- 
 ing the Constitution and the remaining few who do not 
 become parties to it? 
 
 The first ■question is answered at once by recurring to 
 the absolute necessity of the case: to the great principle 
 of self-preservation; to the transcendent law of nature 
 and of nature's God, which declares that the safety and 
 happiness of society are the objects at which all political 
 institutions aim, and to which all such institutions must 
 be sacrificed. Perhaps, also, an answer may be found 
 without searching beyond the principles of the compact 
 itself. It has been heretofore noted among the. defects 
 of the Confederation that in many of the States it had 
 received no higher sanction than a mere legislative ratifi- 
 cation. " The principle of reciprocality seems to require 
 
 ' A history of the various successful and unsuccessful attempts to 
 amend the constitution will be found in the Appendix. — Editor. 
 
 ' The lack of authority of the state legislatures to adopt the articles 
 of confederation without submitting them to the people was one of 
 
Madisbnl VaLWITV OP COMPACT. 293 
 
 that its obligation on the other States should be reduced 
 to the same standard. A compact between indepen- 
 dent sovereigns, founded on ordinary acts of legisla- 
 tive 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 par- 
 ticular States to a dissolution of the federal pact, will 
 not the complaining parties find it a difficult task to 
 answer the multiplied and important infractions with 
 which they may be confronted? The time has been when 
 it was incumbent on us all to veil the ideas which this 
 paragraph exhibits. The scene is now changed, and 
 with it the part which the same motives dictate. 
 
 The second question is not less delicate; and the 
 flattering prospect of its being merely hypothetical for- 
 bids 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 observed that, although no political relation 
 can subsist between the assenting and dissenting States, 
 yet the moral relations will remain uncanceled. The 
 claims of justice, both on one side and on the other, will 
 be in force and must be fulfilled; the rights of humanity 
 must in all cases be duly and mutually respected; whilst 
 considerations of a common interest, and, above all, the 
 remembrance of the endearing scenes which are past, 
 
 the fundamental objections raised among the thoughtful men of the 
 time. And so general was the recognition that a state legislature 
 could not adopt or terminate the later federal compact, that South Caro- 
 lina in 1832 and i860, and all the other southern states which seceded, 
 declared secession through conventions of the people ; thus very effectu- 
 ally disproving what they were then trying to maintain, that the state 
 governments were sovereign. — Editor. 
 
294 RESTRICTIONS ON STATES. [No. 43 (42) 
 
 and the anticipation of a speedy triumph over the 
 obstacles to reunion, will, it is hoped, not urge in vain 
 MODERATION on onc sidc, and prudence on the other.' 
 
 PUBLIUS. 
 
 No. 44' [431- (iViw KorA /"airfeA January 25, 1788.) MadlSOn. 
 
 RESTRICTIVE POWERS ON THE STATES. 
 
 Forbidding the establishment of treaties and alliances between the 
 states — Issues of letters of marque — Coinage of money — Issue of bills of 
 credit — Establishment of any legal tender other than gold 'and silver — 
 Bills of attainder — Ex post facto laws — Laws impairing contracts — 
 Titles of nobility — 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 enumeration by specification of re- 
 served 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. 
 
 To the People of the State of New York: 
 
 A fifth class of provisions in favor of the federal 
 authority consists of the following restrictions on the 
 authority of the several States: 
 
 I. " No State shall enter into any treaty, alliance, or 
 confederation; grant letters of marque and reprisal; coin 
 money; emit bills of credit; make anything but gold and 
 silver a legal tender in payment of debts; pass any bill 
 of attainder, ex post facto law, or law impairing the obli- 
 gation of contracts; or grant any title of nobility." 
 
 The prohibition against treaties, alliances, and con- 
 
 ' North Carolina and Rhode Island did not adopt the federal constitu- 
 tion until the new government had been some months in operation and were 
 therefore, technically speaking, for some time out of the Union. The 
 persistence of Rhode Island in her refusal to accede actually led to dis- 
 cussion in Massachusetts and Connecticut as to whether that ' ' example 
 of turpitude " should not be dismembered and joined to those two 
 states. — Editor. 
 
MadUon] STATES AND COINAGE. 295 
 
 federations 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 some- 
 what extended in the new. According to the former, 
 letters of marque could be granted by the States after a 
 declaration of war; according to the latter, these licenses 
 must be obtained, as well during war as previous to its 
 declaration, from the government of the United States. 
 This alteration is fully justified by the advantage of uni- 
 formity in all points which relate to foreign powers; and 
 of immediate responsibility to the nation in all those for 
 whose conduct the nation itself is to be responsible. 
 
 The right of coining money, which is here taken from 
 the States, was left in their hands by the Confederation, 
 as a concurrent right with that of Congress, under an 
 exception in favor of the exclusive right of Congress to 
 regulate the alloy and value. In this instance, also, the 
 new provision is an improvement on the old. Whilst the 
 alloy and value depended on the general authority, a 
 right of coinage in the particular States could have no 
 other effect than to multiply expensive mints and 
 diversify the forms and weights of the circulating pieces. 
 The latter inconveniency defeats one purpose for which 
 the power was originally submitted to the federal head; 
 and as far as the former might prevent an inconvenient 
 remittance of gold and silver to the central mint for re- 
 coinage, the end can be as well attained by local mints 
 established under the general authority. 
 
 The extension of the prohibition to bills of credit must 
 give pleasure to every citizen, in proportion to his love 
 of justice and his knowledge of the true springs of public 
 prosperity. The loss which America has sustained since 
 the peace, from the pestilent effects of paper money on 
 the necessary confidence between man and man, on the 
 necessary confidence in the public councils, on the in- 
 dustry and morals of the people, and on the character of 
 republican government, constitutes an enormous debt 
 against the States chargeable with this unadvised measure, 
 
296 STATES AND PAPER MONEY. [Ho. 44 (48) 
 
 which must long remain unsatisfied; or rather an accumu- 
 lation of guilt, which can be expiated no otherwise than 
 by a voluntary sacrifice on the altar of justice of the 
 power which has been the instrument of it. In addition 
 to these persuasive considerations, it may be observed 
 that the same reasons which show the necessity of deny- 
 ing 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 animosi- 
 ties be kindled among the States themselves. The sub- 
 jects of foreign powers might suffer from the same cause, 
 and hence the Union be discredited and embroiled by 
 the indiscretion of a single member. No one of these 
 mischiefs is less incident to a power in the States to 
 emit paper money than to coin gold or silver. The 
 power to make anything but gold and silver a tender in 
 payment of debts is withdrawn from the States, on the 
 same principle with that of issuing a paper currency. ' 
 
 Bills of attainder, ex post facto laws, and laws impairing 
 the obligation of contracts, are contrary to the first 
 principles of the social compact and to every principle 
 of sound legislation. The two former are expressly pro- 
 hibited by the declarations prefixed to some of the State 
 constitutions, and all of them are prohibited by the 
 spirit and scope of these fundamental charters. Our 
 own experience has taught us, nevertheless, that addi- 
 tional fences against these dangers ought not to be 
 omitted. Very properly, therefore, have the convention 
 added this constitiitional bulwark in favor of personal 
 security and private rights; and I am much deceived if 
 they have not, in so doing, as faithfully consulted the 
 
 ' See Bancroft's "Plea for the Constitution " for a history of bills of 
 credit. — EcrroR. 
 
Madison] STATES AND IMPOSTS. 297 
 
 genuine sentiments as the undoubted interests of their 
 constituents. The sober people of America are weary 
 of the fluctuating policy which has directed the public 
 councils. They have seen with regret and indignation 
 that sudden changes and legislative interferences, in 
 cases affecting personal rights, become jobs in the hands 
 of enterprising and influential speculators, and snares to 
 the more-industrious and less informed part of the com- 
 munity. They have seen, too, that one legislative inter- 
 ference is but the first link of a long chain of repetitions, 
 every subsequent interference being naturally produced 
 by the effects of the preceding. They very rightly infer, 
 therefore, that some thorough reform is wanting, which 
 will banish speculations on public measures, inspire a 
 general prudence and industry, and give a regular course 
 to the business of society. The prohibition with respect 
 to titles of nobility is copied from the articles of Con- 
 federation, and needs no comment. 
 
 2. "No State shall, without the consent of the Con- 
 gress, lay any imposts or duties on imports or exports, 
 except what may be absolutely necessary for executing 
 its inspection laws, and the net produce of all duties and 
 imposts laid by any State on imports or exports, shall 
 be for the use of the treasury of the United States; 
 and all such laws shall be subject to the revision and 
 control of the Congress. No State shall, without the 
 consent of Congress, lay any duty on tonnage, keep 
 troops or ships of war in time of peace, enter into any 
 agreement or compact with another State, or with a 
 foreign power, or engage in war unless actually in- 
 vaded, 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 
 
298 ENABLING CLAUSE. Wo. 44 (43) 
 
 for the conveniency of their imports and exports, and to 
 the United States a reasonable check against the abuse 
 of this discretion. The remaining particulars of this 
 clause fall within reasonings which are either so obvious, 
 or have been so fully developed, that they may be passed 
 over without remark. 
 
 The sixth and last class consists of the several powers 
 and provisions by which efficacy is given to all the rest. 
 
 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 can appear more completely invulnerable. 
 Without the substance of this power, the whole Constitu- 
 tion wcTuld be a dead letter. Those who object to the 
 article, therefore, as a part of the Constitution, can only 
 mean that the form of the provision is improper. But 
 have they considered whether a better form could have 
 been substituted? 
 
 There are four other possible methods which the Con- 
 stitution might have taken on this subject. They might 
 have copied the second article of the existing Confedera- 
 tion, which would have prohibited the exercise of any 
 power not expressly delegated ; they might have attempted 
 a positive enumeration of the powers comprehended 
 under the general terms " necessary and proper "; they 
 might have attempted a negative enumeration of them, 
 by specifying the powers excepted from the general 
 definition; they might have been altogether silent on the 
 subject, leaving these necessary and proper powers to 
 construction and inference. 
 
 Had the convention taken the first method of adopting 
 the second article of Confederation, it is evident that the 
 new Congress would be continually exposed, as their 
 predecessors have been, to the alternative of construing 
 the term ^^ expressly" with so much rigor as to disarm 
 
MadiBon] ENUMERATION OF POWERS. 299 
 
 the government of all real authority whatever^ or with 
 so much latitude as to destroy altogether the force of 
 the restriction. It would be easy to show, if it were 
 necessary, that no important power, delegated by the 
 articles of Confederation, has been or can be executed 
 by Congress, without recurring more or less to the doc- 
 trine of construction or implication. As the powers dele- 
 gated under the new system are more extensive, the 
 government which is to administer it would find itself 
 still more distressed with the alternative of betraying the 
 public interests by doing nothing, or of violating the 
 Constitution by exercising powers indispensably 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 complete digest of laws on every subject to which the 
 Constitution relates; accommodated, too, not only to the 
 existing state of things, but to all the possible change? 
 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 while 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 enumera- 
 tion would have been equivalent to a positive grant of 
 authority. If, to avoid this consequence, they had 
 attempted a partial enumeration of the exceptions, and 
 described the residue by the general terms, not necessary 
 or proper, it must have happened that the enumeration 
 would comprehend a few of the excepted powers only; 
 that these would be such as would be least likely to be 
 assumed or tolerated, because the enumeration would 
 of course select such as would be least necessary or 
 
300 MISCONSTRUCTION OF POWERS. [Ho. 44 (43) 
 
 proper; and that the unnecessary and improper powers 
 included in the residuum would be less forcibly ex- 
 cepted/ than if no partial enumeration had been made. 
 
 Had the Constitution been silent on this head, there 
 can be no doubt that all the particular powers requisite 
 as means of executing the general powers would have 
 resulted to the government, by unavoidable implication. 
 No axiom is more clearly established in law, or in reason, 
 than that wherever the end is required, the means are 
 authorized; wherever a general power to do a thing is 
 given, every particular power necessary for doing it is 
 included. Had this last method, therefore, been pursued 
 by the convention, every objection now urged against 
 their plan would remain in all its plausibility; and the 
 real inconveniency would be incurred of not removing 
 a pretext which may be seized on critical occasions for 
 drawing into question the essential powers of the 
 Union. 
 
 If it be asked what is to be the consequence, in case 
 the Congress shall misconstrue this part of the Constitu- 
 tion, and exercise powers not warranted by its true mean- 
 ing, 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 constitu- 
 tional 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 elec- 
 tion 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 
 
MadiBonI CONSTlTUTlOM SUPJiMMt LA W. 30I 
 
 change of federal representatives.' There being no 
 such intermediate body between the State legislatures 
 and the people interested in watching the conduct of the 
 former, violations of the State constitutions are more 
 likely to remain unnoticed and unredressed. 
 
 2. "This Constitution and the laws of the United 
 States which shall be made in pursuance thereof, and all 
 treaties made, or which shall be made, under the author- 
 ity of the United States, shall be the supreme law of 
 the land, and the judges in every State shall be bound 
 thereby, anything in the constitution or laws of any 
 State to the contrary notwithstanding." 
 
 The indiscreet zeal of the adversaries to the Constitu- 
 tion has betrayed them into an attack on this part of it 
 See also, without which it would have been evi- 
 
 STo, 33. dently and radically defective. To be fully 
 
 sensible of this, we need only suppose for a moment that 
 the supremacy of the State constitutions had been left 
 complete by a saving clause in their favor. 
 
 In the first place, as these constitutions invest the 
 State legislatures with absolute sovereignty, in all cases 
 not excepted by the existing articles of Confederation, 
 all the authorities contained in the proposed Constitu- 
 tion, 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 
 
 ' Here Madison proposed the very course pursued by the Virginia and 
 Kentucky legislatures in 1798-99, and by the Connecticut and Massa- 
 chusetts legislatures in 1812-14. — Editor. 
 
302 SUPPORT OF CONSTITUTION. [No. 44 (43) 
 
 the States, would interfere with some and not with other 
 constitutions, and would consequently be valid in some 
 of the States, at the same time that it would have no 
 effect in others. 
 
 In fine, the world would have seen, for the first time, 
 a system of government founded on an inversion of the 
 fundamental principles of all government; it would have 
 seen the authority of the whole society everywhere sub- 
 ordinate to the authority of the parts; it would have 
 seen a monster, in which the head was under the direc- 
 tion of the members. 
 
 3. " The Senators and Representatives, and the mem- 
 bers of the several State legislatures, and all executive 
 and judicial officers, both of the United States and the 
 several States, shall be bound by oath or affirmation to 
 support this Constitution." 
 
 It has been asked why it was thought necessary that 
 the State magistracy should be bound to support the 
 federal Constitution, and unnecessary that a like oath 
 should be imposed on the officers of the United States, 
 in favor of the State constitutions. 
 
 Several reasons might be assigned for the distinction. 
 I content myself with one, which is obvious and conclu- 
 sive. The members of the federal government will have 
 no agency in carrying the State constitutions into effect. 
 The members and officers of the State governments, on 
 the contrary, will have an essential agency in giving 
 effect to the federal Constitution. The election of the 
 President and Senate will depend, in all cases, on the 
 legislatures of the several States. And the election of 
 the House of Representatives will equally depend on the 
 same authority in the first instance; and will, probably, 
 forever be conducted by the officers, and according to 
 the laws, of the States. 
 
 4. Among the provisions for giving efficacy to the 
 federal powers might be added those which belong to the 
 executive and judiciary departments; but as these are 
 reserved for particular examination in another place, I 
 pass them over in this. 
 
Madison] NATIONAL POWER AND STATES. 303 
 
 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 accomplish- 
 ing the necessary objects of the Union. The question, 
 therefore, whether this amount of power shall be granted 
 or not, resolves itself into another question, whether or 
 not a government commensurate to the exigencies of the 
 Union shall be established; or, in other words, whether 
 the Union itself shall be preserved. Publius. 
 
 L, 
 
 No, 45 [44]. (.New York Packet, jMVii.ryis,nii.) MadisOH. 
 
 THE WHOLE MASS OF NATIONAL POWER IN 
 RELATION TO THE STATE GOVERNMENTS. 
 
 The new constitution not dangerous to the state governments — Tend- 
 ency in confederation is to weaken the central power — State govern- 
 ments will have more influence among the people — State governments are 
 essential parts of the federal government — Officers of the United States 
 are less numerous than those of the states — Reserved powers are relatively 
 greater than those delegated — Proposed change consists less in giving new 
 than in strengthening old powers. 
 
 To the People of the State of New York: 
 
 Having shown that no one of the powers transferred 
 to the federal government is unnecessary or improper, 
 the next question to be considered is whether the whole 
 mass of them will be dangerous to the portion of author- 
 ity left in the several States. 
 
 The adversaries to the plan of the convention, instead 
 of considering in the first place what degree of power 
 was absolutely necessary for the purposes of the federal 
 government, have exhausted themselves in a secondary 
 inquiry into the possible consequences of the proposed 
 degree of power to the governments of the particular 
 States. But if the Union, as has been shown, be essen- 
 
304 FALSE IMPORTANCE OF STATES. [No. 45 (44) 
 
 tial to the security of the people of America against 
 foreign danger; if it be essential to their security 
 against contentions and wars among the different States; 
 if it be essential to guard them against those violent and 
 oppressive factions which embitter the blessings of 
 liberty, and against those military establishments which 
 must gradually poison its very fountain; if, in a word, 
 the Union be essential to the happiness of the people of 
 America, is it not preposterous to urge as an objection 
 to a government, without which the objects of the Union 
 cannot be attained, that such a government may dero- 
 gate from the importance of the governments of the 
 individual States? Was, then, the American Revolution 
 effected, was the American Confederacy formed, was the 
 precious blood of thousands spilt, and the hard-earned 
 substance of millions lavished, not that the people of 
 America should enjoy peace, liberty, and safety, but that 
 the government of the individual States, that particular 
 municipal establishments, might enjoy a certain extent 
 of power, and be arrayed with certain dignities and 
 attributes of sovereignty? We have heard of the impious 
 doctrine in the Old World that the people were made 
 for kings, not kings for the people. Is the same doc- 
 trine to be revived in the New, in another shape — that 
 the solid happiness of the people is to be sacrificed to the 
 views of political institutions of a different form? It is 
 too early for politicians to presume on our forgetting 
 that the public good, the real welfare of the great body 
 of the people, is the supreme object to be pursued; and 
 that no form of government whatever has any other value 
 than as it may be fitted for the attainment of this object. 
 Were the plan of the convention adverse to the public 
 happiness, my voice would be, Reject the plan. Were 
 the Union itself inconsistent with the public happiness, 
 it -would be, Abolish the Union. In like manner, as far 
 as the sovereignty of the States cannot be reconciled to 
 the happiness of the people, the voice of every good citi- 
 zen must be. Let the former be sacrificed to the latter. 
 How far the sacrifice is necessary has been shown. 
 
Madison] BALANCE OF UNION. ■ 305 
 
 How far the unsacrificed residue will be endangered is 
 the question before us. 
 
 Several important considerations have been touched 
 in the course of these papers, which discountenance the 
 supposition that the operation of the federal government 
 will by degrees prove fatal to the State governments. 
 The more I revolve the subject, the more fully I am 
 persuaded that the balance is much more likely to be dis- 
 turbed by the preponderancy of the last than of the first 
 scale. ' 
 
 We have seen, in all the examples of ancient and modern con- 
 federacies, the strongest tendency continually betraying itself in 
 See the members to despoil the general government of its 
 
 No. 37. authorities, with a very ineffectual capacity in the 
 
 latter to defend itself against the encroachments. Although, in 
 most of these examples, the system has bpen so dissimilar from 
 that under consideration as greatly to weaken any inference con- 
 cerning the latter from the fate of the former, yet, as the States 
 will retain, under the proposed Constitution, a very extensive por- 
 tion of active sovereignty, the inference ought not to be wholly 
 disregarded. In the Achsean league it is probable that the federal 
 head had a degree and species of power which gave it a con- 
 siderable 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 
 
 ' As a matter of fact the balance between the states and the nation 
 has been admirably maintained. While the national government has 
 assumed many additional powers which the growth of communication 
 has made it possible for it to enforce, yet relatively the state governments 
 have come to be more important elements, as compared with the national 
 government, than in 1800. This is owing chiefly to the circumstance that 
 relations with foreign countries — the greatest function of the general 
 government — have become far less vital, with the growing tendency to 
 peace; for such foreign relations as now exist are chiefly commercial, and 
 by the practical destruction of American shipping have been reduced to 
 little more than questions of tariffs. The importance of internal affairs, 
 too, has declined with the curbing and extinction of the Indian and with 
 the steady lessening of public territory. Certain developments have, of 
 course, greatly added to the national influence, such as the greater impor- 
 tance of the post office, the governmental control over railroads, the 
 creation of national banks and the power to say what is money, the 
 levying of protective tariff and the granting of bounties, the policy of 
 internal improvement, and several other material factors. But with the 
 development of national functions has come a greatly increased importance 
 
3o6 ADVANTAGE WITH STATES. [No. 45 (44) 
 
 tended to degenerate, into one consolidated government. On the 
 contrary, we know that the ruin of one of them proceeded from the 
 incapacity of the federal authority to prevent the dissensions, and 
 finally the disunion, of the subordinate authorities. These cases 
 are the more worthy of our attention, as the external causes by 
 which the component parts were pressed together were much more 
 numerous and powerful than in our case ; and consequently less 
 powerful ligaments within would be sufficient to bind the members 
 to the head and to each other. 
 
 In the feudal system we have seen a similar propensity exempli- 
 fied. Notwithstanding the want of proper sympathy in every 
 instance between the local sovereigns and the people, and the 
 sympathy in some instances between the general sovereign and 
 the latter, it usually happened that the local sovereigns prevailed 
 in the rivalship for encroachments. Had no external dangers 
 enforced internal harmony and subordination, and particularly, had 
 the local sovereigns possessed the affections of the people, the great 
 kingdoms in Europe would at this time consist of as many 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 
 possess; to the powers respectively vested in them; to 
 the predilection and probable support of the people; 
 to the disposition and faculty of resisting and frustrat- 
 ing the measures of each other. 
 
 The State governments may be regarded as constituent 
 
 of the state governments. The mere power to charter cities and corpo- 
 rations, which now plays such a vital part in the life of every citizen, 
 probably quite balances all the additional powers hitherto assumed by the 
 general government. Furthermore, the states have secured complete con- 
 trol over public education, have developed a militia far out of proportion 
 to the regular army, and have gained enormously in the power of taxation, 
 through such means as sales of public rights, and inheritance and income 
 taxes. In the daily life of the citizen, the creation and control of the 
 machinery for supplying him with food, water, gas, transportation, and 
 education ; for aiding him in sickness, in poverty, or in insanity ; and for 
 protecting him from violence and fire, from disease, from vice, and from 
 fraud, all vest — with exceptions scarcely worth a mention — in the state 
 governments, or in their creations — the counties and municipalities. As a 
 result it is probable that the direct reliance of the citizen on the national 
 government, as compared with that of his state, has distinctly lessened 
 rather than increased, in the last hundred years. — Editor, 
 
Madison] DEPENDENCE ON STATES. 307 
 
 and essential parts of the federal government; whilst the 
 latter is nowise essential to the operation or organization 
 of the former. Without the intervention of the State 
 legislatures, the President of the United States cannot 
 be elected at all.' They must in all cases have a great 
 share in his appointment, and will, perhaps, in most cases, 
 of themselves determine it. The Senate will be elected 
 absolutely and exclusively by the State legislatures. 
 Even the House of Representatives, though drawn 
 immediately from the people, will be chosen very much 
 under the influence of that class of men whose influence 
 over the people obtains for themselves an election into 
 the State legislatures. Thus, each of the principal 
 branches of the federal government will owe its existence 
 more or less to the favor of the State governments, and 
 must consequently feel a dependence which is much 
 more likely to beget a disposition too obsequious than 
 too overbearing towards them. On the other side, the 
 component parts of the State governments will in no 
 instance be indebted for their appointment to the direct 
 agency of the federal government, and very little, if at 
 all, to the local influence of its members. 
 
 The number of individuals employed under the Con- 
 stitution 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 
 
 ' In the first forty years the presidential electors were usually chosen 
 by the state legislatures, and South Carolina even maintained this system 
 till 1868. In 1828 a number of the states chose their electors by means 
 of popular votes, a system which has since become universal, and which 
 has thus excluded the legislatures from all participation in the election 
 of the President.— Editor. 
 
3o8 NA TIONAL AND STA TE OFFICERS. [No 45 (44) 
 
 exceed beyond all proportion, both in number and in 
 influence, those of every description who will be employed 
 in the administration of the federal system. Compare 
 the members of the three great departments of the 
 thirteen States, excluding from the judiciary department 
 the justices of peace, with the members of the corre- 
 sponding departments of the single government of the 
 Union; compare the militia officers of three millions of 
 people with the military and marine officers of any 
 establishment which is within the compass of probability, 
 or, I may add, of possibility, and, in this view alone, we 
 may pronounce the advantage of the States to be decisive. 
 If the federal government is to have collectors of revenue, 
 the State governments will have theirs also. And as 
 those of the former will be principally on the sea-coast, 
 and not very numerous, whilst those of the latter will be 
 spread over the face of the country, and will be very 
 numerous, the advantage in this view also lies on the 
 same side. It is true that the Confederacy is to possess, 
 and may exercise, the power of collecting internal as well 
 as external taxes throughout the States; but it is probable 
 that this power will not be resorted to, except for sup- 
 plemental purposes of revenue; that an option will then 
 be given to the States to supply their quotas by previous 
 collections of their own; and that the eventual collection, 
 under the immediate authority of the Union, will generally 
 be made by the officers, and according to the rules, 
 appointed by the several States. Indeed it is extremely 
 probable that in other instances, particularly in the 
 organization of the judicial power, the officers of the 
 States will be clothed with the correspondent authority 
 of the Union. Should it happen, however, that separate 
 collectors of internal revenue should be appointed under 
 the federal government, the influence of the whole num- 
 ber would not bear a comparison with that of the multi- 
 tude 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 per- 
 
Madison] NEW AND ORIGINAL POWERS.. 309 
 
 sons of character and weight, whose influence would lie 
 on the side of the State. 
 
 The powers delegated by the proposed Constitution to 
 the federal government are few and defined. Those 
 which are to remain in the State governments are 
 numerous and indefinite. The former will be exercised 
 principally on external objects, as war, peace, negotia- 
 tion, and foreign commerce; with which last the power 
 of taxation will, for the most part, be connected. The 
 powers reserved to the several States will extend to all 
 the objects which, in the ordinary course of affairs, con- 
 cern the lives, liberties, and properties of the people, and 
 the internal order, improvement, and prosperity of the 
 State. 
 
 The operations of the federal government will be most 
 extensive and important in times of war and danger; 
 those of the State governments, in times of peace and 
 security. As the former periods will probably bear a 
 small proportion to the latter, the State governments will 
 here enjoy another advantage over the federal govern- 
 ment. The more adequate, indeed, the federal powers 
 maybe rendered to the national defense, the less frequent 
 will be those scenes of danger which might favor their 
 ascendency over the governments of the particular States. 
 
 If the new Constitution be examined with accuracy and candor, 
 it will be found that the change which it proposes consists much 
 less in the addition of NEW POWERS to the Union than in the 
 invigoration of its ORIGINAL powers. TJie_ regulation of com- 
 nverce, it is true, is a new power; but that seems to be, an addi- 
 tion \yhich few oppose, and from which no~apprehensions are en- 
 tertained. The powers relating to war and peace, armies and fleets, 
 treaties and jfiiiance, with _th_e other more considerable powers, 
 are all vested in the existing; Congress by the articles of Con- 
 federation. 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 im- 
 portant ; and yet the present Congress have as complete authority 
 to" REQUIRE of the States indefinite, supplies of money for the 
 common defense and general welfare as the future^-^Congress will 
 have to require them of individual citizens ; aad. thelMter, will be 
 
3IO POPULAR SUPPORT. [No. 46 (45) 
 
 no more bound than the States themselves have begn_Jo pay the 
 quotas respectively taxed orTthernT Had^tHe States complied 
 punctually with the articles of Confederation, or could their com- 
 pliance have been enforced by as peaceable means as may be used 
 with success towards single persons, our past experience is very far 
 from countenancing an opinion that the State governments would 
 have lost tlieir constitutional povvers and have gradually undergone 
 an entire consolidatioji. To maintain that such an event would have 
 ensued, would -be- to say- at once, that the existence of the State 
 governments is incompatible with any system whatever that accom- 
 plishes the essential purposes of the Union. 
 
 PUBLIUS. 
 
 No. 46 [45]. (New York Packet, January 29, 1788.) MadisOn. 
 
 THE RELATIVE INFLUENCE OF THE FEDERAL 
 AND THE STATE GOVERNMENTS WITH THE 
 PEOPLE. 
 
 Federal and state governments only different agents of the same con- 
 stituents — The first attachment of the people will be to the state govern- 
 ments — Popularity will come to the federal government only if it is 
 better administered — Objections on score of federal military power 
 answered — Concluding remarks on the proposition that the powers of the 
 Union will be dangerous to the state governments. 
 
 To the People of the State of New York: 
 
 Resuming the subject of the last paper, I proceed to 
 inquire whether the federal government or the State 
 governments will have the advantage with regard to the 
 predilection and support of the people. Notwithstanding 
 the different modes in which they are appointed, we 
 must consider both of them as substantially dependent 
 on the great body of the citizens of the United States. 
 I assume this position here as it respects the first, re- 
 serving the proofs for another place. The federal and 
 State governments are in fact but different agents and 
 trustees of the people, constituted with different powers, 
 and designed for different purposes. The adversaries of 
 the Constitution seem to have lost sight of the people 
 
Madison] THE PEOPLE ATTACHED TO STATES. 311 
 
 altogether in their reasonings on this subject; and to 
 have viewed these different establishments not only as 
 mutual rivals and enemies, but as uncontrolled by any 
 common superior in their efforts to usurp the authorities 
 of each other. These gentlemen must here be reminded 
 of their error. They must be told that the ultimate 
 authority, wherever the derivative may be found, resides 
 in the people alone, and that it will not depend merely 
 on the comparative ambition or address of the different 
 governments, whether either, or which of them, will be 
 able to enlarge its sphere of jurisdiction at the expense 
 of the other. Truth, no less than decency, requires that 
 the event in every case should be supposed to depend 
 on the sentiments and sanction of their common 
 constituents. 
 
 Many considerations besides those suggested on a 
 former occasion seem to place it beyond doubt that the 
 first and most natural attachment of the people will be to 
 the governments of their respective States. Into the 
 administration of these a greater number of individuals 
 will expect to rise. From the gift of these a greater 
 number of offices and emoluments will flow. By the 
 superintending care of these, all the more domestic and 
 personal interests of the people will be regulated and 
 provided for. With the affairs of these, the people will 
 be more familiarly and minutely conversant. And with 
 the members of these, will a greater proportion of the 
 people have the ties of personal acquaintance and friend- 
 ship, 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 defec- 
 tive in comparison with what may be hoped under a 
 better system, had, during the war, and particularly 
 whilst the independent fund of paper emissions was in 
 credit, an activity and importance as great as it can well 
 have in any future circumstances whatever. It was 
 engaged, too, in a course of measures which had for 
 
312 POPULAR COtfFWBNCE IN NATION. [No. 46 (46) 
 
 their object the protection of everything that was dear, 
 and the acquisition of everything that could be desirable 
 to the people at large. It was nevertheless invariably 
 found, after the transient enthusiasm for the early Con- 
 gresses was over, that the attention and attachment of 
 the people were turned anew to their own particular 
 governments; that the federal council was at no time 
 the idol of popular favor; and that 'opposition to pro- 
 posed 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 peo- 
 ple should in future become more partial to the federal 
 See than to the State governments, the change 
 
 No, 49. can only result from such manifest and 
 
 irresistible proofs of a better administration as will 
 overcome all their antecedent propensities.' And in 
 that case the people ought not surely to be precluded 
 from giving most of their confidence where they may 
 discover it to be most due; but even in that case the 
 State governments could have little to apprehend, be- 
 cause it is only within a certain sphere that the federal 
 power can, in the nature of things, be advantageously 
 administered. 
 
 The remaining points on which I propose to compare 
 the federal and State governments are the disposition 
 and the faculty they may respectively possess, to resist 
 and frustrate the measures of each other. 
 
 It has been already proved that the members of the 
 federal will be more dependent on the members of the 
 State governments than the latter will be on the former. 
 It has appeared, also, that the prepossessions of the 
 people, on whom both will depend, will be more on the 
 
 ' Such has been the history of the steady growth of respect for the 
 national government, and it illustrates Bagehot's principle that "every 
 constitution must first gain authority, and then use authority ; it must 
 first win the loyalty and confidence of mankind, and then employ that 
 homage in the work of government." — Editor. 
 
Madison] LOCAL SPIRIT IN CONGRESS. 313 
 
 side of the State governments than of the federal govern- 
 ment. So far as the disposition of each towards the 
 other may be influenced by these causes, the State 
 governments must clearly have the advantage. But in a 
 distinct and very important point of view, the advantage 
 will lie on the same side. The prepossessions, which 
 the members themselves will carry into the federal 
 government, will generally be favorable to the States; 
 whilst it will rarely happen that the members of the 
 State governments will carry into the public councils a 
 bias in favor of the general government. A local spirit 
 will infallibly prevail much more in the members of Con- 
 gress than a national spirit will prevail in the legisla- 
 tures of the particular States.' Everyone knows that a 
 great proportion of the errors committed by the State 
 legislatures proceeds from the disposition of the members 
 to sacriiice the comprehensive and permanent interest of 
 the State to the particular and separate views of the 
 counties or districts in which they reside. And if they 
 do not sufficiently enlarge their policy to embrace the 
 collective welfare of their particular State, how can it be 
 imagined that they will make the aggregate prosperity 
 of the Union, and the dignity and respectability of its 
 government, the objects of their affections and consulta- 
 tions? For the same reason that the members of the 
 State legislatures will be unlikely to attach themselves 
 sufficiently to national objects, the members of the 
 
 ' This has been shown in all sectional controversies such as the 
 slavery, tariff, Indian, coinage, and other issues. And, in a smaller 
 sense, in every question of internal improvement the same spirit is mani- 
 fested ; each member of the legislative body sinking all thought of 
 national good in the attempt to get " something " for his own immediate 
 district or state. Both the River and Harbor bill and the bill appropriat- 
 ing money for public buildings have come to be vast " dickers," in which 
 each representative or senator secures " something" for his constituents, 
 by promising his vote to his fellow-members for the appropriations for 
 their localities. Much of the jobbery could perhaps be remedied 
 by a power granted to the President to veto separate items of a bill, 
 instead of requiring him to veto or approve the bill as a whole. Many of 
 the appropriations are disapproved by the majority of Congress, and are only 
 put in to secure enough votes to pass the measure, consequently the vetoing 
 of separate items wouldrarely result in attempts to repass them. — Editor. 
 
3i4 PARTISAN LEGISLATION. [No, 46 (45) 
 
 federal legislature will be likely to attach themselves too 
 much to local objects. The States will be to the latter 
 what counties and towns are to the former. Measures 
 will too often be decided according to their probable 
 effect, not on the national prosperity and happiness, but 
 on the prejudices, interests, and pursuits of the govern- 
 ments and people of the individual States. What is the 
 spirit that has in general characterized the proceedings 
 of Congress? A perusal of their journals, as well as the 
 candid acknowledgments of such as have had a seat in 
 that assembly, will inform us that the members have but 
 too frequently displayed the character rather of partisans 
 of their respective States than of impartial guardians of 
 a common interest; that where on one occasion improper 
 sacrifices have been made of local considerations to the 
 aggrandizement of the federal government, the great inter- 
 ests of the nation have suffered on a hundred from an 
 undue attention to the local prejudices, interests, and 
 views of the particular States. I mean not by these reflec- 
 tions to insinuate that the new federal government will 
 not embrace a more enlarged plan of policy than the ex- 
 isting government may have pursued; much less, that its 
 views will be as confined as those of the State legisla- 
 tures; but only that it will partake sufficiently of the 
 spirit of both to be disinclined to invade the rights of 
 the individual States or the prerogatives of their govern- 
 ments. The motives on the part of the State govern- 
 ments to augment their prerogatives, by defalcations 
 from the federal government, will be overruled by no 
 reciprocal predispositions in the members. 
 
 Were it admitted, however, that the federal govern- 
 ment may feel an equal disposition with the State 
 governments to extend its. power beyond the due limits, 
 the latter would still have the advantage in the means of 
 defeating such encroachments. If an act of a particular 
 State, though unfriendly to the national government, be 
 generally popular in that State, and should not too 
 grossly violate the oaths of the State officers, it is exe- 
 cuted immediately and, of course, by means on the spot 
 
Madison] OBSTRUCTIVE POWER OF STATES. 31S 
 
 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 
 diificulty. On the other hand, should an unwarrantable 
 measure of the federal government be unpopular in par- 
 ticular 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 alid, perhaps, refusal to co-operate with the 
 ofificers of the Union; the frowns of the executive magis- 
 tracy of the State; the embarrassments created by legis- 
 lative 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 ad- 
 joining 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 govern- 
 ment on the authority of the State governments would 
 not excite the opposition of a single State or of a few 
 States only. They would be signals of general alarm. 
 Every government would espouse the common cause. 
 A correspondence would be opened." Plans of resistance 
 
 ■ In every attempt to oppose actively the state governments to the national 
 government this has been the method, and probably nothing better proves 
 the underlying sense of the true nationality of the Union, over and apart 
 from any constitutional compact, than the fact that the leaders of state 
 sovereignty have always appealed for support to the other states, or in 
 reality to the majority of the people or nation, in their endeavors to over- 
 ride the acts of the federal government. The Virginia and Kentucky 
 resolutions were in reality nothing but a request to the " co-states" for 
 support. The Hartford convention ended in a proposition to amend the 
 constitution, which was but a way of asking the other states to aid New 
 England in its opposition to the general government. The South Carolina 
 convention of 1832 issued an address to the " people " of the states, affirm- 
 ing that in this "crisis " those states cannot " hesitate in acceding to 
 this arrangement." Most illustrative of all, however, was the appeal 
 
3l6 REPRESENTATIVES VERSUS PEOPLE. [No. 46 (45) 
 
 would be concerted. One spirit would animate and con- 
 duct the whole. The same combinations, in short, would 
 result from an apprehension of the federal as was pro- 
 duced by the dread of a foreign yoke; and unless the 
 projected innovations should be voluntarily renounced, 
 the same appeal to a trial of force would be made in the 
 one case as was made in the other. But what degree of 
 madness could ever drive the federal government to such 
 an extremity? In the contest with Great Britain, one 
 part of the empire was employed against the other. The 
 more numerous part invaded the rights of the less 
 numerous part. The attempt was unjust and unwise; 
 but it was not in speculation absolutely chimerical. But 
 what would be the contest in the case we are supposing? 
 Who would be the parties? A few representatives of the 
 people would be opposed to the people themselves; or 
 rather one set of representatives would be contending 
 against thirteen sets of representatives, with the whole 
 body of their common constituents on the side of the 
 latter. 
 
 The only refuge left for those who prophesy the downfall of the 
 State governments is the visionaiy supposition that the federal 
 government may previously accumulate a military force for the 
 projects of ambition. The reasonings contained in these papers 
 must have been employed to little purpose indeed, if it could be 
 necessary now to disprove the reality of this danger. That the 
 people and the States should, for a sufficient period of time, elect 
 an uninterrupted succession of men ready to betray both ; that the 
 traitors should, throughout this period, uniformly and sys- 
 
 of South Carolina, in 1861, by an address of its convention to " the 
 people of the slave-holding states," in which it was announced that 
 " South Carolina desires no destiny separate from yours," and asking them 
 to "join us in forming a confederacy of slave-holding states." That a 
 state which had just asserted its existence as a free and sovereign country 
 should at once ask to be made part of another implied as little true 
 sense of the essence of nationality as if the thirteen colonies, after 
 declaring independence in 1776, had petitioned to be united to France 
 or Spain. In the whole history of the United States, a genuine effort 
 to create an actual sovereignty in statehood, which could absolutely dis- 
 regard the vrill of the co-states, was never once attempted. Yet without 
 absolute independence from each and every other state, state sovereignty 
 was necessarily a pure fiction and nullity. — Editor. 
 
Madison] MILITIA SUPERIOR TO ARMY. 317 
 
 tematically pursue some fixed p]an 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 con- 
 tinue to supply the materials, until it should be prepared to burst 
 on their own heads, must appear to everyone more like the in- 
 coherent dreams of a delirious jealousy, or the misjudged exaggera- 
 tions of a counterfeit zeal, than like the sober apprehensions of 
 genuine patriotism. Extravagant as the supposition is, let it, how- 
 ever, be made. Let a regular army fully equal to the resources of 
 the country be formed, and let it be entirely at the devotion of 
 the federal government ; still it would not be going too far to 
 say that the State governments, with the people on their side, 
 would be able to repel the danger. The highest number to which, 
 according to the best computation, a standing army can be carried 
 in any country, does not exceed one hundredth part of the whole 
 number of souls ; or one twenty-fifth part of the number able to 
 bear arms. This proportion would not yield, in the United States, 
 an army of more than twenty-five or thirty thousand men. To 
 these would be opposed a militia amounting to near half a million 
 of citizens with arms in their hands, officered by men chosen from 
 among themselves, fighting for their common liberties, and united 
 and conducted by governments possessing their affections and 
 confidence. It may well be doubted whether a militia thus cir- 
 cumstanced 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 advan- 
 tage of being armed, which the Americans possess over the people 
 of almost every other nation, the existence of subordinate govern- 
 ments to which the people are attached, and by which the militia 
 officers are appointed, forms a barrier against the enterprises of 
 ambition more insurmountable than any which a simple govern- 
 ment of any form can admit of. Notwithstanding the mihtary 
 establishments in the several kingdoms of Europe, which are 
 carried as far as the public resources will bear, the governments 
 are afraid to trust the people with arms. And it is not certain 
 that, with this aid alone, they would not be able to shake off their 
 yokes. But were the people to possess the additional advantages 
 of local governments chosen by themselves, who could collect the 
 national will and direct the national force, and of officers appointed 
 out of the militia, by these governments, and attached both to them 
 and to the militia, it may be affirmed with the greatest assurance 
 that the throne of every tyranny in Europe would be speedily 
 
3l8 FEDERAL POWERS NOT FORMIDABLE. [110.46(46) 
 
 overturned in spite of the legions which surround it. Let us not 
 ipsult 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 sup- 
 position that they can ever reduce themselves to the necessity of 
 making the experiment, by a blind and tame submission to the 
 long train of insidious measures which must precede and produce it. 
 
 The argument under the present head may be put into 
 a very concise form, which appears altogether conclusive. 
 Either the mode in which the federal government is to 
 be constructed will render it suflSciently dependent on 
 the people, or it will not. On the first supposition, it 
 will be restrained by that dependence from forming 
 schemes obnoxious to their constituents. On the other 
 supposition, it will not possess the confidence of the 
 people, and its schemes of usurpation will be easily 
 defeated by the State governments, who will be sup- 
 ported by the people. 
 
 On summing up the considerations stated in this and 
 the last paper, they seem to amount to the most convinc- 
 ing 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 indispens- 
 ably necessary to accomplish the purposes of the Union; 
 and that all those alarms which have been sounded, of a 
 meditated and consequential annihilation of the State 
 governments, must, on the most favorable interpretation, 
 be ascribed to the chimerical fears of the authors of 
 them. PuBLius. 
 
Madison] DISTRIBUTION^ OF POWERS. 319 
 
 No. 47 [461' (Independent Journal, January 30, 1788.) MadisOH. 
 
 SEPARATION OF THE DEPARTMENTS OF 
 POWER. 
 
 The maxim that there should be separate and distinct departments 
 considered — This maxim, true — The new constitution does not violate it — 
 The view of Montesquieu — The provisions of the various state constitu- 
 tions on this point examined. 
 
 To the People of the State of New York: 
 
 Having reviewed the general form of the proposed 
 government and the general mass of power allotted to it, 
 I proceed to examine the particular structure of this 
 government and the distribution of this mass of power 
 among its constituent parts. 
 
 One of the principal objections inculcated by the more 
 respectable adversaries to the Constitution is its sup- 
 posed violation of the political maxim that the legisla- 
 tive, executive, and judiciary departments ought to be 
 separate and distinct. In the structure of the federal 
 government, no regard, it is said, seems to have been 
 paid to this essential precaution in favor of liberty. The 
 severaf departments of power are distributed and 
 blended in such a manner as at once to destroy all sym- 
 metry 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 en- 
 lightened patrons of liberty, than that on which the 
 objection is founded. The accumulation of all powers, 
 legislative, executive, and judiciary, in the same hands, 
 whether of one, a few, or many, and whether hereditary, 
 self-appointed, or elective, may justly be pronounced the 
 very definition of tyranny. Were the federal Constitu- 
 tion, therefore, really chargeable with the accumulation 
 of power, or with a mixture of powers, having a danger- 
 ous tendency to such an accumulation, no further argu- 
 
3*0 MOJ^TESQVIEU'S THEORY. [Ko.47(46) 
 
 ments would be necessary to inspire a universal reproba- 
 tion of the system. I persuade myself, however, that it 
 will be made apparent to everyone that the charge can- 
 ggg not be supported, and that the maxim on 
 
 No. 66. which it relies has been totally misconceived 
 
 and misapplied. In order to form correct ideas on this 
 important subject, it will be proper to investigate the 
 sense in which the preservation of liberty requires that 
 the three great departments of power should be separate 
 and distinct.' 
 
 The oracle who is always consulted and cited on this 
 subject is the celebrated Montesquieu. If he be not the 
 author of this invaluable precept in the science of politics, 
 he has the merit at least of displaying and recommend- 
 ing it most effectually to the attention of mankind. Let 
 us endeavor, in the first place, to ascertain his meaning 
 on this point. 
 
 The British Constitution was to Montesquieu what 
 Homer has been to the didactic writers on epic poetry. 
 As the latter have considered the work of the immortal 
 bard as the perfect model from which the principles and 
 rules of the epic art were to be drawn, and by which all 
 similar works were to be judged, so this great political 
 
 ' This theory of the division or separation of governmental powers, 
 virhich has reached its highest expression in our constitution, vifas briefly 
 noted by Aristotle, but was first seriously discussed by Locke in his 
 " Treatise on Civil Government." It vifas Montesquieu, however, who 
 first demonstrated that the separation of governmental powers into the 
 legislative, executive, and judicial, with each so balanced as to be able to 
 resist the encroachments of the other two, was indispensable to civil 
 liberty, and from his " Esprit des Lois" the framers of American con- 
 stitutions drew the principles embodied in the various state and federal 
 constitutions. As Madison here observes, Montesquieu in his example 
 of Great Britain as a model of such differentiation, constructed an ideal 
 commonwealth rather than described the British government of his day. 
 Bagehot, after making merry over this conception of the English 
 constitution, asserts that the "efficient secret" of the system is the 
 " close union, the nearly complete fusion, of the executive and legisla- 
 tive powers." (" The English Constitution," Works: iv. 52, 59.) See also 
 Parker's, " The Three Powers of Government," New York : 1869; H. 
 Davis's "American Constitutions; the Relations of the Three Depart- 
 ments as adjusted by a Century," Baltimore : 1885, and W. Bondy's 
 " The Separation of Governmental Powers," New York : 1893. — 
 Editor. 
 
Madison] BRITISH CONSTITUTION. 321 
 
 critic appears to have viewed the Constitution of Eng- 
 land as the standard, or to jase his own expression, as the 
 nairror of political liberty; and to have delivered, in the 
 form of elementary truths, the several characteristic 
 principles of that particular system. That we may be 
 sure, then, not to mistake' his meaning in this case, let us 
 recur to the source from which the maxim was drawn. 
 
 On the slightest view of the British Constitution, we 
 must perceive that the legislative, executive, and judiciary 
 departments are by no means totally separate and dis- 
 tinct from each other. The executive magistrate forms 
 an integral part of the legislative authority. He alone 
 has the prerogative of making treaties with foreign 
 sovereigns, which, when made, have, under certain limi- 
 tations, the force of legislative acts. All the members of 
 the judiciary department are appointed by him, can be 
 removed by him on the address of the two Houses of 
 Parliament, and form, when he pleases to consult them, 
 one of his constitutional councils. One branch of the 
 legislative department forms also a great constitutional 
 council to the executive chief, as, on another hand, it is 
 the sole depositary of judicial power in cases of impeach- 
 ment, and is invested with the supreme appellate juris- 
 diction in all other cases. The judges, again, are so far 
 connected with the legislative department as often to 
 attend and participate in its deliberations, though not 
 admitted to a legislative vote. 
 
 From these facts, by which Montesquieu was guided, 
 it may clearly be inferred that, in saying "There can be 
 no liberty where the legislative and executive powers are 
 united in the same person, or body of magistrates," or, 
 "if the power of judging be not separated from the 
 legislative and executive powers," he did not mean that 
 these departments ought to have no partial agency in, or 
 no control over, the acts of each other. His meaning, as 
 his own words import, and still more conclusively as 
 illustrated by the example in his eye, can amount to no 
 more than this, that where the whole power of one de- 
 partment is exercised by the same hands which possess 
 
322 TYRANNY IN UNION OF POWER. [Wo. 47 (46) 
 
 the whole power of another department, the fundamental 
 principles of a free constitution are subverted. This 
 would have been the case in the constitution examined 
 by him, if the king, who is the sole executive magistrate, 
 had possessed also the complete legislative power, or the 
 supreme administration of justice; or if the entire legis- 
 lative body had possessed the supreme judiciary, or the 
 supreme executive authority. This, however, is not 
 among the vices of that constitution. The magistrate in 
 whom the whole executive power resides cannot of him- 
 self make a law, though he can put a negative on every 
 law; nor administer justice in person, though he has the 
 appointment of those who do administer it. The judges 
 can exercise no executive prerogative, though they are 
 shoots from the executive stock; nor any legislative 
 function, though they may be advised with by the legis- 
 lative councils. The entire legislature can perform no 
 judiciary act, though by the joint act of two of its 
 branches the judges may be removed from their offices, 
 and though one of its branches is possessed of the judicial 
 power in the last resort. The entire legislature, again, 
 can exercise no executive prerogative, though one of its 
 branches constitutes the supreme executive magistracy, 
 and another, on the impeachment of a third, can try and 
 condemn all the subordinate officers in the executive 
 department. 
 
 The reasons on which Montesquieu grounds his maxim 
 are a further demonstration of his meaning. " When the 
 legislative and executive powers are united in the same 
 person or body," says he, "there can be no liberty, 
 because apprehensions may arise lest the same monarch or 
 senate should enact tyrannical laws to execute them in a 
 tyrannical manner." Again: " Were the power of judg- 
 ing joined with the legislative, the life and liberty of the 
 subject would be exposed to arbitrary control, for the judge 
 would then be the legislator. Were it joined to the execu- 
 tive power, the judge might behave with all the violence of 
 an oppressor." Some of these reasons are more fully ex- 
 plained in other passages; but briefly stated as they are 
 
Madison] £>EPARTMEMtS SEPARATE IN STATES. %'i^ 
 
 here, they sufficiently establish the meaning which we have 
 put on this celebrated maxim of this celebrated author. 
 
 If we look into the constitutions of the several States we find 
 that, notwithstanding the emphatical and, in some instances, the 
 unqualified terms in which this axiom has been laid down, there 
 is not a single instance in which the several departments of power 
 have been kept absolutely separate and distinct. New Hampshire, 
 whose constitution was the last formed, seems to have been fully 
 aware of the impossibility and inexpediency of avoiding any 
 mixture whatever of these departments, and has qualified the 
 doctrine by declaring " that the legislative, executive, and judiciary 
 powers ought to be kept as separate from, and independent of, 
 each other as the nature of a free government will admit ; or as 
 is consistent with that chain of connection that binds the whole 
 fabric of the constitution in one indissoluble bond of unity and 
 amity." Her constitution accordingly mixes these departments 
 in several respects. The Senate, which is a branch of the 
 legislative department, is also a judicial tribunal for the trial of 
 impeachments. The President, who is the head of the executive 
 department, is the presiding member also of the Senate; and, 
 besides an equal vote in all cases, has a casting vote in case of a 
 tie. The executive head is himself eventually elective every year 
 by the legislative department, and his council is every year chosen 
 by and from the members of the same department. Several of 
 the ofi&cers of state are also appointed by the legislature. And 
 tlie members of the judiciary department are appointed by the 
 executive department. 
 
 The constitution of Massachusetts has observed a sufficient 
 though less pointed caution, in expressing this fundamental article 
 of liberty. It declares " that the legislative department shall 
 never exercise the executive and judicial powers, or either of them; 
 the executive shall never exercise the legislative and judicial 
 powers, or either of them ; the judicial shall never exercise the 
 legislative and executive powers, or either of them." This decla- 
 ration 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 
 
324 BLENDING OF PO WERS IN STA TES. [No. 47 C46) 
 
 departments. The members of the judiciary department, again, 
 are appointable by the executive department, and removable by 
 the same authority on the address of the two legislative branches. 
 Lastly, a number of the officers of government are annually 
 appointed by the legislative department. As the appointment to 
 offices, particularly executive offices, is in its nature an executive 
 function, the compilers of the constitution have, in this last point 
 at least, violated the rule established by themselves. 
 
 I pass over the constitutions of Rhode Island and Connecticut, 
 because they were formed prior to the Revolution, and even before 
 the principle under examination had become an object of political 
 attention.' 
 
 The constitution of New York contains no declaration on 
 this subject, but appears very clearly to have been framed with 
 an eye to the danger of improperly blending the different depart- 
 ments. It gives, nevertheless, to the executive magistrate, a 
 partial control over the legislative department ; and, what is more, 
 gives a like control to the judiciary department ; and even blends 
 the executive and the judiciary departments in the exercise of this 
 control. In its council of appointment members of the legislative 
 are associated with the executive authority, in the appointment of 
 officers, both executive and judiciary. And its court for the trial 
 of impeachments and correction of errors is to consist of one 
 branch of the legislature and the principal members of the 
 judiciary department. 
 
 The constitution of New Jersey has blended the different 
 powers of government more than any of the preceding. The 
 governor, who is the executive magistrate, is appointed by the 
 legislature ; is chancellor and ordinary, or surrogate of the State ; 
 is a member of the Supreme Court of Appeals, and president, with 
 a casting vote, of one of the legislative branches. The same 
 legislative branch acts again as executive council of the governor, 
 and with him constitutes the Court of Appeals. The members of 
 the judiciary department are appointed by the legislative depart- 
 ment, and removable by one branch of it, on the impeachment of 
 the other. 
 
 According to the constitution of Pennsylvania, the president, 
 who is the head of the executive department, is annually elected 
 by a vote in which the legislative department predominates. In 
 conjunction with an executive council, he appoints the members 
 of the judiciary department and forms a court of impeachment 
 
 ' Rhode Island and Connecticut maintained the royal charters granted 
 them in the seventeenth century. — Editor. 
 
Madison! POWERS DISTINCT IN SOME STATES. 3 25 
 
 for trial of all officeis, judiciary as well as executive. The judges 
 of the Supreme Court and justices of the peace seem also to be 
 removable by the legislature ; and the executive power of pardon- 
 ing in certain cases, to be referred to the same department. The 
 members of the executive council are made EX OFFICIO justices 
 of peace throughout the State. 
 
 In Delaware the chief executive magistrate is annually elected 
 by the legislative department. The speakers of the two legislative 
 branches are vice presidents in the executive department. The 
 executive chief, with six others, appointed, three by each of the 
 legislative branches, constitutes the Supreme Court of Appeals ; 
 he is joined with the legislative department in the appointment of 
 the other judges. Throughout the States it appears that the 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 members of the 
 executive council. The principal officers of the executive depart- 
 ment are appointed by the legislative ; and one branch of the 
 latter forms a court of impeachments. All officers may be 
 removed on address of the legislature. 
 
 Maryland has adopted the maxim in the most unqualified 
 terms ; declaring that the legislative, executive, and judicial 
 powers of government ought to be forever separate and distinct 
 from each other. Her constitution, notwithstanding, makes the 
 executive magistrate appointable by the legislative department ; 
 and the members of the judiciary by the executive department. 
 
 The language of Virginia is still more pointed on this subject. 
 Her constitution declares " that the legislative, executive, and 
 judiciary departments shall be separate and distinct ; so that 
 neither exercise the powers properly belonging to the other ; nor 
 shall any person exercise the powers of more than one of them at 
 the same time, except that the justices of county courts shall be 
 eligible to either House of Assembly." Yet we find not only this 
 express exception, with respect to the members of the inferior 
 courts, but that the chief magistrate, with his executive council, 
 are appointable by the legislature ; that two members of the latter 
 ai-e 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, 
 
326 iMPERFECTIONS ADMITTED. tiIo.47(4d) 
 
 at the same time, to the legislative department the appointment 
 not only of the executive chief, but all the principal officers within 
 both that and the judiciary department. 
 
 In South Carolina the constitution makes the executive magis- 
 tracy 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 appoint- 
 ment of officers in the executive department, down to captains 
 in the army and navy of the State. 
 
 In the constitution of Georgia, where it is declared "that the 
 legislative, executive, and judiciary departments shall be separate 
 and distinct, so that neither exercise the powers properly belong- 
 ing to the other," we find that the executive department is to be 
 filled by appointments of the legislature ; and the executive pre- 
 rogative 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, execu- 
 tive, and judiciary departments have not been kept 
 totally separate and distinct, I wish not to be regarded 
 as an advocate for the particular organizations of the 
 several State governments. I am fully aware that, 
 among the many excellent principles which they ex- 
 emplify, they carry strong marks of the haste, and still 
 stronger of the inexperience, under which they were 
 framed. It is but too obvious that in some instances 
 the fundamental principle under consideration has been 
 violated by too great a mixture, and even an actual 
 consolidaticJn,' 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. Publics. 
 
Madison] INDEPENDENCE 7'0 DEPARTMENTS. 327 
 
 No. 48 [47] • ^'^^'^ ^'"'* P'^<:>"'< February i, 1788.) MadisOn. 
 
 MEANS OF GIVING INDEPENDENCE TO THE 
 DIFFERENT DEPARTMENTS. 
 
 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 — The tendency of the legislature to absorb the other depart- 
 ments — Reasons for this — An instance of encroachments in Virginia — 
 Experience in Pennsylvania. 
 
 To the People of the State of New York: 
 
 It was shown in the last paper that the political 
 apothegm there examined does not require that the 
 legislative, executive, and judiciary departments should 
 be wholly unconnected with each other. I shall under- 
 take, in the next place, to show that unless these depart- 
 ments be so far connected and blended as to give to 
 each a constitutional control over the others, the degree 
 of separation which the maxim requires, as essential to 
 a free government, can never in practice be duly main- 
 tained. 
 
 It is agreed, on all sides, that the powers properly 
 belonging to one of the departments ought not to be 
 directly and completely administered by either of the 
 other departments. It is equally evident that none of 
 them ought to possess, directly or indirectly, an over- 
 ruling influence over the others, in the administration of 
 their respective powers. It will not be denied that power 
 is of an encroaching nature, and that it ought to be 
 effectually restrained from passing the limits assigned to 
 it. After discriminating, therefore, in theory, the several 
 classes of power, as they may in their nature be legisla- 
 tive, executive, or judiciary, the next and most difficult 
 task is to provide some practical security for each 
 against the invasion of the others. What this security 
 ought to be, is the great problem to be solved. 
 
 Will it be sufficient to mark with precision the 
 
328 LEGISLATIVE USURPATION. [No. 48 (47) 
 
 boundaries of these departments in the constitution of 
 the government, and to trust to these parchment barriers 
 against the encroaching spirit of power? This is the 
 security which appears to have been principally relied 
 on by the compilers of most of the American consti- 
 tutions. But experience assures us that the efficacy 
 of the provision has been greatly overrated, and that 
 some more adequate defense is indispensably necessary 
 for the more feeble, against the more powerful members 
 of the government. The legislative department is every- 
 where extending the sphere of its activity, and drawing 
 all power into its impetuous vortex. 
 
 The founders of our republics have so much merit for 
 the wisdom which they have displayed that no task can 
 be less pleasing than that of pointing out the errors into 
 which they have fallen. A respect for truth, however, 
 obliges us to remark that they seem never for a moment 
 to have turned their eyes from the danger to liberty from 
 the overgrown and all-grasping prerogative of an hered- 
 itary magistrate, supported and fortified by an hereditary 
 branch of the legislative authority. They seem never 
 to have recollected the danger from legislative usurpa- 
 tions, which, by assembling all power in the same hands, 
 must lead to the same tyranny as is threatened by execu- 
 tive usurpations." 
 
 ' That the legislative department has sought persistently, and to a 
 certain extent successfully, to encroach on the power of the executive 
 department, history has plainly shown. The most material assumptions 
 have been those connected with the choice of the Executive, with his 
 power of appointment, with his veto power, and finally with the treaty- 
 making power. 
 
 It was the intention of the framers of the constitution that the electoral 
 college should choose the President and that Congress should have no 
 concern in his election beyond the mere formal counting of the votes and 
 the announcement of the result. With absolute unconstitutionality and 
 by gradual usurpation Congress has extended its power until to-day it 
 claims the right to go behind the vote and reject or accept what it 
 chooses, thus practically taking the election of President into its own 
 hands ; this power it successfully employed in 1876 to defeat the people's 
 will by excluding from office the President actually elected. Doubly 
 regrettable was the action of the supreme court, for, in place of restrain- 
 ing this assumption of Congress, the court actually made itself a party to 
 this most high-handed proceeding, when certain judges acted as members 
 
Madison] EXECUTIVE INTRIGUE. 329 
 
 In a government wWere 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 legis- 
 lative functions, and are continually exposed, by their 
 incapacity for regular deliberation and concerted meas- 
 ures, to the ambitious intrigues of their executive mag- 
 istrates, tyranny may well be apprehended, on some 
 favorable emergency, to start up in the same quarter. 
 But in a representative republic, where the executive 
 magistracy is carefully limited, both in the extent and 
 the duration of its power; and where the legislative 
 power is exercised by an assembly, which is inspired, by 
 
 of the electoral commission. Nor is tliis grasp of power the only attempt 
 Congress has made to interfere in the election of President. The early 
 Congresses of the Union assumed the right to nominate the President, and 
 for thirty years successfully forced upon tlTe people candidates for 
 President. The legislative enmity to Jackson in 1824 led to the nomina- 
 tion of another man, when the popular bent of the people had declared 
 for Jackson ; and when Jackson in that year received a plurality though 
 not a majority of the electoral college, Congress, when the election came 
 before it, elected Adams in his stead. By this act, in the words of the 
 convention of Maryland, " the will of a majority of the states as well as 
 of the people of the Union has been defeated," and such a storm arose 
 as to sweep Jackson into power at the next election. The people 
 resumed the right of nomination by means of popular conventions and 
 forever ended the power of Congress to nominate the President of 
 the United States. It is to be wished that some equally unpopular 
 action in the future will result in the people taking from Congress the 
 unconstitutional function of canvassing the returns of the electoral 
 college. 
 
 The second class of assumptions has consisted in a persistent endeavor 
 to gain greater control over appointments. The first evidence of this was 
 an attempt to decide on the grade of office of the first diplomatic nomina- 
 tions, but Washington refused to allow the Senate any power in the mat- 
 ter, save that of confirmation or rejection. (See Jefferson's "Writings," 
 V. 161.) A second, and recurring, invasion has been a demand for 
 documents on which nominees were selected, first made on Washington, 
 and last on Cleveland, and always refused. But the most serious form 
 has been the insistence of members of both houses that they be allowed to 
 name the local officials, which has been resisted only by the strongest 
 and most honest Presidents, and which has done more to corrupt both the 
 legislative and executive branches of our government than any other one 
 force. 
 
 The third class of assumptions has been in the direction of lessening the 
 
33° LEGISLATIVE POWERS EXTENSIVE. [No. 48 (47) 
 
 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 multi- 
 tude, yet not so numerous as to be incapable of pursuing 
 the objects of its passions, by means which reason 
 prescribes; it is against the enterprising ambition of this 
 department that the people ought to indulge all their 
 jealousy and exhaust all their precautions. 
 
 The legislative department derives a superiority in our 
 governments from other circumstances. Its constitu- 
 tional powers being at once more extensive, and less 
 susceptible of precise limits, it can, with the greater 
 facility, mask, under complicated and indirect measures, 
 the encroachments which it makes on the co-ordinate 
 departments. It is not unfrequently a question of real 
 nicety in legislative bodies, whether the operation of a 
 particular measure will, or will not, extend beyond the 
 
 value of the Presideiitiaf veto, by attaching what are called " riders" to 
 appropriation or other bills, as a method of compelling the consent of the 
 President to what he would choose to veto. Thus, in 1867, in the con- 
 flict between the President and Congress, the latter attached to the army 
 appropriation bill a clause actually depriving the President of the com- 
 mand of the army, and Johnson, though protesting, felt compelled to 
 sign rather than veto the whole bill. Hayes, with more resolution, 
 successively vetoed five appropriation bills carrying riders, and after 
 a long struggle Congress yielded. Both Grant and Arthur in their 
 messages of December I, 1873, and December 5, 1882, urged a constitu- 
 tional amendment, which should prevent the evil, either by requiring 
 that every bill be limited to one object, or that a veto of separate items 
 be permitted. 
 
 Lastly, the House of Representatives has several times sought to 
 obtain a share in treaty-making, by asserting a control over all treaties 
 which involved questions of revenue. After long debate, this claim was 
 denied in the consideration of the Jay treaty of 1795, but the infringe- 
 ment was surrendered to the representatives by President Jefferson 
 in the consideration of the Louisiana treaty of 1803, and from that 
 time has been frequently permitted. The most notable case was the 
 Hawaiian reciprocity treaty of 1876, which contained the distinct 
 provision that it should not take effect until Congress should pass an 
 act to carry out certain of its provisions. So, too. Congress has gone 
 so far as to abrogate treaties by statute, as in 1798, when the French 
 treaty was declared wholly terminated by an act, and by laws con- 
 travening certain clauses of treaties when they related to internal 
 concerns ; and this right has been upheld by the decisions of the courts. 
 A pronounced example was the Chinese exclusion act, which entirely 
 contravened our treaty with China. — Editor. 
 
Madison] EXAMPLE OE VtRGlNIA. 33 1 
 
 legislative sphere. On the other side, the executive 
 power being restrained within a narrower compass, and 
 being more simple in its nature, and the judiciary being 
 described by landmarks still less uncertain, projects of 
 usurpation by either of these departments would imme- 
 diately betray and defeat themselves. Nor is this all: 
 as the legislative department alone has access to the 
 pockets of the people, and has in some constitutions full 
 discretion, and in all a prevailing influence, over the 
 pecuniary rewards of those who fill the other depart- 
 ments, 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 experi- 
 ence by particular proofs, they might be multiplied without end. 
 I might find a witness in every citizen who has shared in, or been 
 attentive to, the course of public administrations. I might collect 
 vouchers in abundance from the records and archives of every 
 State in the Union. But as a more concise, and at the same time 
 equally satisfactory evidence, I will refer to the example of two 
 States, attested by two unexceptionable authorities. 
 
 The first example is that of Virginia, a State which, as we have 
 seen, has expressly declared in its constitution that the three great 
 departments ought not to be intermixed. The authority in sup- 
 port of it is Mr. Jefferson, who, besides his other advantages for 
 remarking the operation of the government, was himself the chief 
 magistrate of it. In order to convey fully the ideas with which 
 his experience had impressed him on this subject, it will be neces- 
 sary to quote a passage of some length from his very interesting 
 " Notes on the State of Virginia," p. 195. " All the powers of 
 government — legislative, executive, and judiciary — result to the 
 legislative body. The concentrating these in the same hands is 
 precisely the definition of despotic government. It will be no 
 alleviation that these powers will be exercised by a plurality of 
 hands, and not by a single one. One hundred and seventy-three 
 despots would surely be as oppressive as one. Let those who 
 doubt it turn their eyes on the republic of Venice. As little will 
 it avail us that they are chosen by ourselves. An elective des- 
 potism 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 
 
332 COUNCIL OF CENSOliS. [No. 48 (47; 
 
 several bodies of magistracy as that no one could transcend their 
 legal limits without being effectually checked and restrained by 
 the others. For this reason, that convention which passed the 
 ordinance of government laid its foundation on this basis, that 
 the legislative, executive, and judiciary departments should be - 
 separate and distinct, so that no person should exercise the powers 
 of more than one of them at the same time. But no barrier was 
 provided between these several powers. The judiciary and the 
 executive members were left dependent on the legislative for their 
 subsistence in office, and some of them for their continuance in it. 
 If, therefore, the legislature assumes executive and judiciary 
 powers, no opposition is likely to be made ; nor, if made, can be 
 effectual ; because, in that case, they may put their proceedings 
 into the form of acts of Assembly, which will render them obliga- 
 tory on the other branches. They have accordingly, in many in- 
 stances, decided rights which should have been left Xa judiciary 
 controversy, and the direction of the executive, during the whole 
 time of their session, is becoming habitual and familiar." 
 
 The other State which I shall take for an example is Pennsyl- 
 vania ; and the other authority, the Council of Censors, which 
 assembled in the years 1783 and 1784. A part of the duty of this 
 body, as marked out by the constitution, was " to inquire whether 
 the constitution had been preserved inviolate in every part ; and 
 whether the legislative and executive branches of government had 
 performed their duty as guardians of the people, or assumed to 
 themselves, or exercised, other or greater powers than they are 
 entitled to by the constitution." In the execution of this trust the 
 council were necessarily led to a comparison of both the legislative 
 and executive proceedings, with the constitutional powers of these 
 departments ; and from the facts enumerated, and to the truth of 
 most of which both sides in the council subscribed, it appears thai 
 the constitution had been flagrantly violated by the legislature in a 
 variety of important instances. 
 
 A great number of laws had been passed, violating, without any 
 apparent necessity, the rule requiring that all bills of a public 
 nature shall be previously printed for the consideration of the 
 people ; although this is one of the precautions chiefly relied on by 
 the constitution against improper acts of the legislature. 
 
 The constitutional trial by jury had been violated, and powers 
 assumed which had not been delegated by the constitution. 
 
 Executive powers had been usurped. 
 
 The salaries of the judges, which the constitution expressly re- 
 quires to be fixed, had been occasionally varied ; and cases belong- 
 
Madison] PENNSYLVANIA EXECUTIVE. 333 
 
 ing to the judiciary department frequently drawn within .egislative 
 cognizance and determination. 
 
 Those who wish to see the several particulars falling under 
 each of these heads may consult the journals of the council, which 
 are in print. Some of them, it will be found, may be imputable to 
 peculiar circumstances connected with the war ; but the greater 
 part of them may be considered as the spontaneous shoots of an 
 ill-constituted government. 
 
 It appears, also, that the executive department had not been 
 innocent of frequent breaches of the constitution. There are three 
 observations, however, which ought to be made on this head : first, 
 a great proportion of the instances were either immediately pro- 
 duced by the necessities of the war, or recommended by Congress 
 or the commander-in-chief ; secondly, in most of the other instances, 
 they conformed either to the declared or the known sentiments of 
 the legislative department ; thirdly, the executive department of 
 Pennsylvania is distinguished from that of the other States by the 
 number of members composing it. In this respect, it has as much 
 affinity to a legislative assembly as to an executive council. And 
 being at once exempt from the restraint of an individual responsi- 
 bility for the acts of the body, and deriving confidence from mutual 
 example and joint influence, unauthorized measures would, of 
 course, be more freely hazarded than where the executive depart- 
 ment 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 sufificient guard against those 
 encroachments which lead to a tyrannical concentration 
 of all the powers of government in the same hands. 
 
 PUBLIUS. 
 
334 APPEAL TO THE PEOPLE. [No. 49 (48) 
 
 No. 49 [48]. (.Independent Journal, Yebiaajy 2, jjiS.) MadisOn (?) 
 
 PROBABLE EXCESSIVE INFLUENCE OF THE 
 LEGISLATIVE DEPARTMENT. 
 
 Propriety of a well-defined mode of appealing to the people — A sufficient 
 remedy — Very dangerous and useless if too frequently applied — Reasons 
 for this — When such appeals are useful — Remarks on occasional appeals 
 to the people. 
 
 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 everything from the same pen, marks a turn of think- 
 ing, original, comprehensive, and accurate; and is the 
 more worthy of attention as it equally displays a fervent 
 attachment to republican government and an enlightened 
 view of the dangerous propensities against which it ought 
 to be guarded. One of the precautions whichvhe pro- 
 poses, and on which he appears ultimately to rely as a 
 palladium to the weaker departments of power against 
 the invasions of the stronger, is perhaps altogether his 
 own, and, as it immediately relates to the subject of our 
 present inquiry, cjught not to be overlooked. 
 
 His proposition is " that whenever any two of the 
 three branches of government shall concur in opinion, 
 each by the voices of two-thirds of their whole number, 
 that a convention is necessary for altering the constitu- 
 tion, or correcting breaches of it, a convention shall be called 
 for the purpose." 
 
 As the people are the only legitimate fountain of 
 power, and it is from them that the constitutional charter, 
 under which the several branches of government hold 
 their power, is derived, it seems strictly consonant to 
 the republican theory to recur to the same original 
 
Madison (?)] OBJECTIONS TO RECURRENCE. 335 
 
 authority not only whenever it may be necessary to 
 enlarge, diminish, or new-model the powers of the govern- 
 ment, but also whenever any one of the departments may 
 commit encroachments on the chartered authorities of 
 the others. The several departments being perfectly 
 co-ordinate by the terms of their common commission, 
 none of them, it is evident, can pretend to an exclusive 
 or superior right of settling the boundaries between their 
 respective powers; and how are the encroachments of 
 the stronger to be prevented, or the wrongs of the 
 weaker to be redressed, without an appeal to the peo- 
 ple themselves, who, as the grantors of the commission, 
 can alone declare its true meaning and enforce its ob- 
 servance? 
 
 There is certainly great force in this reasoning, and it 
 must be allowed to prove that a constitutional road to 
 the decision of the people ought to be marked out and 
 kept open for certain great and extraordinary occasions. 
 But there appear to be insuperable objections against the 
 proposed recurrence to the people as a provision, in all 
 cases, for keeping the several departments of power 
 within their constitutional limits. 
 
 In the first place, the provision does not reach the 
 case of a combination of two of the departments against 
 the third. If the legislative authority, which possesses 
 so many means of operating on the motives of the other 
 departments, should be able to gain to its interest either 
 of the others, or even one-third of its members, the 
 remaining department could derive no advantage from 
 its remedial provision. I do not dwell, however, on this 
 objection, because it may be thought to be rather against 
 the modification of the principle than against the princi- 
 ple itself. 
 
 In the next place, it may be considered as an objection 
 inherent in the principle that, as every appeal to the 
 ggj people would carry an implication of some 
 
 iro.46. defect in the government, frequent appeals 
 
 would in a great measure deprive the government of 
 that veneration which time bestows on everything, and 
 
336 DISTURBANCE OF TRANQUILLITY. [No. 49 (48) 
 
 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 con- 
 sideration ought to be disregarded. A reverence for the 
 laws would be sufficiently inculcated by the voice of an 
 enlightened reason. But a nation of philosophers is as 
 little to be expected as the philosophical race of kings 
 wished for by Plato. And in every other nation the 
 most rational government will not find it a superfluous 
 advantage to have the prejudices of the community on 
 its side. 
 
 The danger of disturbing the public tranquillity by 
 interesting too strongly the public passions is a still 
 more serious objection against a frequent reference of 
 constitutional questions to the decision of the whole 
 society. Notwithstanding the success which has attended 
 the revisions of our established forms of government, 
 and which does so much honor to the virtue and intelli- 
 gence of the people of America, it must be confessed that 
 the experiments are of too ticklish a nature to be 
 unnecessarily multiplied. We are to recollect that all the 
 existing constitutions were formed in the midst of a 
 danger which repressed the passions most unfriendly to 
 order and concord; of an enthusiastic confidence of the 
 people in their patriotic leaders which stifled the 
 ordinary diversity of opinions on great national ques- 
 tions; of a universal ardor for new and opposite forms, 
 produced by a universal resentment and indignation 
 against the ancient government; and whilst no spirit of 
 party connected with the changes to be made, or the 
 
Madison (T)] CONSTITUTIONAL EQUILIBRIUM. 337 
 
 abuses to be reformed, could mingle its leaven in the 
 operation. The future situations in which we must 
 expect to be usually placed, do not present any equivalent 
 security against the danger which is apprehended. 
 
 But the greatest objection of all is that the decisions 
 which would probably result from such appeals would not 
 answer the purpose of maintaining the constitutional 
 equilibrium of the government. We have seen that the 
 tendency of republican governments is to an aggrandize- 
 ment of the legislative at the expense of the other 
 departments. The appeals to the people, therefore, 
 would usually be made by the executive and judiciary 
 departments. But whether made by one side or the 
 other, would each side enjoy equal advantages on 
 the trial? Let us view their different situations. The 
 members of the executive and judiciary departments 
 are few in number, and can be personally known to a 
 small part only of the people. The latter, by the mode 
 of their appointment, as well as by the nature and 
 permanency of it, are too far removed from the people 
 to share much in their prepossessions. The former are 
 generally the objects of jealousy, and their administra- 
 tion 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 connec- 
 tions of blood, of friendship, and of acquaintance em- 
 brace a great proportion of the most influential part of 
 the society. The nature of their public trust implies a 
 personal influence among the people, and that they are 
 more immediately the confidential guardians of the rights 
 and liberties of the people. With these advantages, it 
 can hardly be supposed that the adverse party would 
 have an equal chance for a favorable issue. 
 
 But the legislative party would not only be able to 
 plead their cause most successfully with the people. 
 They would probably be constituted themselves the 
 judges. The same influence which had gained them an 
 election into the legislature, would gain them a seat in 
 
338 POPULAR REASON AND PASSIONS. [No. 49 (48) 
 
 the convention. If this should not be the case with all, 
 it would probably be the case with many, and pretty 
 certainly with those leading characters on whom every- 
 thing depends in such bodies. The convention, in short, 
 would be composed chiefly of men who had been, who 
 actually were, or who expected to be, members of the 
 department whose conduct was arraigned. They would 
 consequently be parties to the very question to be decided 
 by them. 
 
 It might, however, sometimes happen that appeals 
 would be made under circumstances less adverse to the 
 executive and judiciary departments. The usurpations 
 of the legislature might be so flagrant and so sudden as 
 to admit of no specious coloring. A strong party among 
 themselves might take side with the other branches. 
 The executive power might be in the hands of a peculiar 
 favorite of the people.' In such a posture of things, the 
 public decision might be less swayed by prepossessions 
 in favor of the legislative party. But still it could never 
 be expected to turn on the true merits of the question. 
 It would inevitably be connected with the spirit of pre- 
 existing parties, or of parties springing out of the ques- 
 tion itself. It would be connected with persons of 
 distinguished character and extensive influence in the 
 community. It would be pronounced by the very men 
 who had been agents in, or opponents of, the measures 
 to which the decision would relate. Th^ fassions, there- 
 fore, not the reason, of the public would sit in judgment. 
 But it is the reason, alone, of the public, that ought to 
 control and regulate the government. The passions 
 ought to be controlled and regulated by the government. 
 
 We found in the last paper, that mere declarations in 
 the written constitution are not sufificient to restrain the 
 several departments within their legal rights. It appears 
 in this that occasional appeals to. the people would be 
 
 ' Mr. Bryce, with admirable discrimination, asserts that "whenever 
 the President is weak and unpopular, Congress seems to be gaining on 
 the Executive Chief. When the latter is presumably strong, he can 
 keep the Legislature at bay." — Editor. 
 
Madison (?)] INFRACTIONS OF CONSTITUTION. 339 
 
 neither a proper nor an effectual provision for that pur- 
 pose. How far the provisions of a different nature con- 
 tained in the plan above quoted might be adequate, I do 
 not examine. Some of them are unquestionably founded 
 on sound political principles, and all of them are framed 
 with singular ingenuity and precision. Publius. 
 
 No. 50 [49]. '^New York Packet, February s, 1788.) MadisOn (?) 
 
 PERIODICAL CORRECTING OF INFRACTIONS 
 OF THE CONSTITUTION. 
 
 The merits and disadvantages of short and long intervals — Example of 
 Pennsylvania. 
 
 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 oi 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 enforc- 
 ing the Constitution, by keeping the several departments 
 
 ' Although no special provision for periodical revision of the constitu- 
 tion was provided in that instrument, appeals for a convention to reshape 
 the government have been recurrent vi'ith each apparent crisis. Even 
 before the adoption of the federal constitution, its opponents urged the 
 calling of a convention to revise it (see E. P. Smith's " The Movement 
 towards a Second Constitutional Convention in 1788 " [In Jameson's 
 " Essays in the Constitutional History of the United States," 1889] ). In 
 the contested election of 1801, the Republicans threatened to " invite " a 
 convention which " would have repaired the Constitution where it was 
 defective and wound it up again," and the fear of what an extra-legal 
 body, originating from such a call, might do to the frame of government, 
 produced a prompt surrender on the part of the Federalists. The Hart- 
 ford convention, in 1814, recommended a revision of the constitution. 
 The South Carolina convention of 1832, in its address to the states, 
 asserted that the only alternative to a modification of the tariff would be 
 " the call for a general convention of all the states." In 1861 the Peace 
 conference, called by the border states, framed a series of amendments 
 to the constitution (see Appendix). — EPITOR. 
 
340 PERIODICAL REVISION. [No. 60 (49) 
 
 of power within their due bounds, without particularly 
 considering them as provisions for altering the Constitu- 
 tion itself. In the first view, appeals to the people at 
 fixed periods appear to be nearly as ineligible as appeals 
 on particular occasions as they emerge. If the periods 
 be separated by short intervals, the measures to be 
 reviewed and rectified will have been of recent date, and 
 will be connected with all the circumstances which tend 
 to vitiate and pervert the result of occasional revisions. 
 If the periods be distant from each other, the same 
 remark will be applicable to all recent measures; and in 
 proportion as the remoteness of the others may favor a 
 dispassionate review of them, this advantage is insepara- 
 ble 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 con- 
 siderations drawn from a censorial revision of their con- 
 duct 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 stand- 
 ing, would have taken deep root, and would not easily be 
 extirpated. 
 
 The scheme of revising the constitution, in order to correct 
 recent breaches of it, as well as for other purposes, has been 
 actually tried in one of the States. One of the objects of the 
 Council of Censors which met in Pennsylvania in 1783 and 1784, 
 was, as we have seen, to inquire " whether the constitution had 
 been violated, and whether the legislative and executive depart- 
 ments had encroached on each other." This important and novel 
 experiment in politics merits, in several points of view, very 
 particular attention. In some of them it may, perhaps, as a single 
 experiment, made under circumstances somewhat peculiar, be 
 
Madison (?)] COUNCIL NOT HARMONIOUS. 341 
 
 thought to be not absolutely conclusive. But as applied to the 
 case under consideration, it involves some facts, which I venture to 
 remark, as a complete and satisfactory illustration of the reasoning 
 which I have employed. 
 
 First. It appears, from the names of the gentlemen who com- 
 posed the council, that some, at least, of its most active and lead- 
 ing members had also been active and leading characters in the 
 parties which pre-existed in the State. 
 
 Secondly. It appears that the same active and leading members 
 of the council had been active and influential members of the 
 legislative and executive branches, within the period to be reviewed, 
 and even patrons or opponents of the very measures to be thus 
 brought to the test of the Constitution. Two of the members had 
 been vice presidents of the State, and several others members of 
 the executive council, within the seven preceding years. One of 
 them had been speaker, and a number of others distinguished 
 members, of the legislative assembly within the same period. 
 
 Thirdly. Every page of their proceedings witnesses the effect 
 of all these circumstances on the temper of their deliberations. 
 Throughout the continuance of the council, it was split into two 
 fixed and violent parties. The fact is acknowledged and lamented 
 by themselves. Had this not been the case, the face of their pro- 
 ceedings exhibits a proof equally satisfactory. In all questions, 
 however unimportant in themselves, or unconnected with each 
 other, the same names stand invariably contrasted on the opposite 
 columns. Every unbiased observer may infer, without danger of 
 mistake, and at the same time without meaning to reflect on either 
 party, or any individuals of either party, that, unfortunately, 
 passion, not reason, must have presided over their decisions. 
 When men exercise their reason coolly and freely on a variety of 
 distinct questions, they inevitably fall into different opinions on 
 some of them. When they are governed by a common passion, 
 their opinions, if they are so to be called, will be the same. 
 
 Fourthly. It is at least problematical whether the decisions of 
 this body do not, in several instances, misconstrue the limits 
 prescribed for the legislative and executive departments, instead of 
 reducing and Umiting them within their constitutional places. 
 
 Fifthly. I have never understood that the decisions of the 
 council on constitutional questions, whether rightly or erroneously 
 formed, have had any effect in varying the practice founded on 
 legislative constructions. It even appears, if I mistake not, that 
 in one instance the contemporary legislature denied the construc- 
 tions of the council, and actually prevailed in the contest. ___^ 
 
342 BALANCE OF DEPARTMENTS. [No. 51(60) 
 
 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 pre- 
 sumed that any other State, at the same or any other given period, 
 I will be exempt from them ? Such an event ought to be neither 
 i presumed nor desired ; because an extinction of parties necessarily 
 I implies either a universal alarm for the public safety, or an abso- 
 ' lute extinction of liberty. 
 
 Were the precaution taken of excluding from the 
 assemblies elected by the people to revise the preceding 
 administration of the government, all persons who should 
 have been concerned with the government within the 
 given period, the difficulties would not be obviated. 
 The important task would probably devolve on men, 
 who, with inferior capacities, would in other respects be 
 little better qualified. Although they might not have 
 been personally concerned in the administration, and 
 therefore not immediately agents in the measures to be 
 examined, they would probably have been involved in 
 the parties connected with these measures, and have 
 been elected under their auspices. 
 
 PUBLIUS. 
 
 No. 51 [50]' (Independent Journal, February 6, 1788.) MadlSOn (?) 
 
 METHOD OF BALANCING THE DEPARTMENTS 
 OF GOVERNMENT. 
 
 Modes of obtaining 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. 
 
 To the People of the State of New York: 
 
 To what expedient, then, shall we finally resort, for 
 maintaining in practice the necessary partition of power 
 among the several departments, as laid down in the Con- 
 
Madison (?)] FREEDOM OF EACH DEPARTMENT. 343 
 
 stitution? 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 con- 
 stituent parts may, by their mutual relations, be the 
 means of keeping each other in their proper places. 
 Without presuming to undertake a full development of 
 this important idea, I will hazard a few general observa- 
 tions, which may perhaps place it in a clearer light and 
 enable us to form a more correct judgment of the prin- 
 ciples and structure of the government planned by the 
 convention. 
 
 In order to lay a due foundation for that separate and 
 distinct exercise of the different powers of government, 
 which to a certain extent is admitted on all hands to be 
 essential to the preservation of liberty, it is evident that 
 each department should have a will of its own, and con- 
 sequently should be so constituted that the members of 
 each should have as little agency as possible in the 
 appointment of the members of the others. Were this 
 principle rigorously adhered to, it would require that 
 all the appointments for the supreme executive, legis' 
 lative, and judiciary magistracies should be drawn from 
 the same fountain of authority, the people, through 
 channels having no communication whatever with one 
 another. Perhaps such a plan of constructing the several 
 departments would be less difficult in practice than it 
 may in contemplation appear. Some difficulties, however, 
 and some additional expense would attend the execution 
 of it. Some deviations, therefore, from the principle 
 must be admitted. In the constitution of the judiciary 
 department in particular, it might be inexpedient 
 to insist rigorously on the principle: first, because 
 peculiar qualifications being essential in the members, 
 the primary consideration ought to be to select that mode 
 of choice which best secures these qualifications; sec- 
 ondly, because the permanent tenure by which the appoint- 
 ments are held in that department, must soon destroy all 
 sense of dependence on the authority conferring them. 
 
344 ENCROACHMENT ON PREROGATIVE. [Mo. SI (50) 
 
 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 independent of the legislature in this particular, 
 their independence in every other would be merely 
 nominal. 
 
 But the great security against a gradual concentration 
 of the several powers in the same department con- 
 sists in giving to those who administer each depart- 
 ment the necessary constitutional means and personal 
 motives to resist encroachments of the others. The 
 provision for defense must in this, as in all other cases, be 
 made commensurate to the danger of attack. Ambition 
 must be made to counteract ambition. The interest of 
 the man must be connected with the constitutional rights 
 of the place. ' It may be a reflection on human nature 
 that such devices should be necessary to control the 
 abuses of government. But what is government itself, 
 but the greatest of all reflections on human nature? If 
 men were angels, no government would be necessary. If 
 angels were to govern men, neither external nor internal 
 controls on government would be necessary. In framing 
 a government which is to be administered by men over 
 men, the great difficulty lies in this: you must first en- 
 able the government to control the governed; and in 
 the next place oblige it to control itself. A dependence 
 on the people is, no doubt, the primary control on the 
 government; but experience has taught mankind the 
 necessity of auxiliary precautions. 
 
 This policy of supplying, by opposite and rival 
 
 ' This tendency of the office-holder to resist encroachment on his own 
 prerogatives, and to endeavor to increase his own power, is so universal 
 that it scarcely needs illustration. Though Jefferson came to the presi- 
 dency pledged to reduce its powers, Gouverneur Morris predicted that 
 far from the probability of his " discarding " power, " we may fairly trust 
 the Ambition which seeks Office, for holding the power which it confers," 
 and time proved his correctness, for no other President has so greatly 
 added to the influence of the executive, nor so often undertaken to inter- 
 fere in the legislative and judicial departments. — Editor. 
 
Madison (t)] PREDOMINANCE OF LEGISLATURE. 345 
 
 interests, the defect of better motives, might be traced 
 through the whole system of human affairs, private as 
 well as public. We see it particularly displayed in all 
 the subordinate distributions of power, where the con- 
 stant aim is to divide and arrange the several offices in 
 such a manner as that each may be a check on the other 
 — that the private interest of every individual may be a 
 sentinel over the public rights. These inventions of 
 prudence cannot be less requisite in the distribution of 
 the supreme powers of the State. 
 
 But it is not possible to give to each department an 
 equal power of self-defense. In republican government, 
 the legislative authority necessarily predominates. The 
 remedy for this inconveniency is to divide the legislature 
 into different branches; and to render them, by different 
 modes of election and different principles of action, as 
 little connected with each other as the nature of their 
 common functions and their common dependence on the 
 society will admit. It may even be necessary to guard 
 against dangerous encroachments by still further pre- 
 cautions. As the weight of the legislative authority re- 
 quires that it should be thus divided, the weakness of the 
 executive may require, on the other hand, that it should 
 be fortified. An absolute negative on the legislature ap- 
 pears, at first view, to be the natural defense with which 
 the executive magistrate should be armed. But perhaps 
 it would be neither altogether safe nor alone sufficient. 
 On ordinary occasions it might not be exerted with the 
 requisite firmness, and on extraordinary occasions it 
 might be perfidiously abused. May not this defect of an 
 absolute negative be supplied by some qualified connec- 
 tion between this weaker department and the weaker 
 branch of the stronger department, by which the latter 
 may be led to support the constitutional rights of the 
 former, without being too much detached from the rights 
 of its own department? 
 
 If the principles on which these observations are 
 founded be just, as I persuade myself they are, and they 
 be applied as a criterion to the several State constitu- 
 
346 RIGHTS OF MINORITY. [No. 61 (50) 
 
 tions, and to the federal Constitution, it will be found 
 that if the latter does not perfectly correspond with 
 them, the former are infinitely less able to bear such a test. 
 
 There are, moreover, two considerations particularly 
 applicable to the federal system of America, which place 
 that system in a very interesting point of view. 
 
 First. In a single republic, all the power surrendered 
 by the people is submitted to the administration of a 
 single government; and the usurpations are guarded 
 against by a division of the government into distinct and 
 separate departments. In the compound republic of 
 America, the power surrendered by the people is first 
 divided between two distinct governments, and then the 
 portion allotted to each subdivided among distinct and 
 separate departments. Hence a double security arises 
 to the rights of the people. The different governments 
 will control each other, at the same time that each will 
 be controlled by itself. 
 
 Second. It is of great importance in a republic not 
 only to guard the society against the oppression of its 
 rulers, but to guard one part of the society against the 
 injustice of the other part. Different interests neces- 
 sarily exist in different classes of citizens. If a majority 
 be united by a common interest, the rights of the 
 minority will be insecure. There are but two methods of 
 providing against this evil: the one by creating a will 
 in the community independent of the majority — that 
 ^is, of the society itself; the other, by comprehending 
 in the society so many separate descriptions of citizens 
 as will render an unjust combination of a majority of 
 the whole very improbable, if not impracticable. The 
 first method prevails in all governments possessing 
 an hereditary or self-appointed authority. This, at 
 best, is but a precarious security; because a power 
 independent of the society may as well espouse the 
 unjust views of the major, as the rightful interests of 
 the minor party, and may possibly be turned against 
 both parties. The second method will be exemplified in 
 the federal republic of the United States. Whilst all 
 
Madison (?)] JUSTICE THE END OF SOCIETY. 347 
 
 authority in it will be derived from and dependent on the 
 society, the society itself will be broken into so many 
 parts, interests, and classes of citizens that the rights 
 of individuals, or of the minority, will be in little danger 
 from interested combinations of the majority. In a free 
 government the security for civil rights must be the 
 same as that for religious rights. It consists in the one 
 case in the multiplicity of interests, and in the other in 
 the multiplicity of sects. The degree of security in both 
 cases will depend on the number of interests and sects; 
 and this may be presumed to depend on the extent of 
 country and number of people comprehended under the 
 same government. This view of the subject must par- 
 ticularly recommend a proper federal system to all the 
 sincere and considerate friends of republican govern- 
 ment, since it shows that in exact proportion as the 
 territory of the Union may be formed into more circum- 
 scribed 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 
 government, the only other security, must be propor- 
 tionally 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 sub- 
 mit 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 
 
348 HOUSE OF REPRESENTATIVES. [No. 51 C50 
 
 was separated from the Confederacy and left to itself, 
 the insecurity of rights under the popular form of 
 government within such narrow limits would be dis- 
 played by such reiterated oppressions of factious ma- 
 jorities, that some power altogether independent of the 
 people would soon be called for by the voice of the very 
 factions whose misrule had proved the necessity of it. 
 In the extended republic of the United States, and among 
 the great variety of interests, parties, and sects which it 
 embraces, a coalition of a majority of the whole society 
 could seldom take place on any other principles than 
 those of justice and the general good; whilst there being 
 thus less danger to a minor from the will of a major 
 party, there must be less pretext, also, to provide for the 
 security of the former, by introducing into the govern- 
 fnent a will not dependent on the latter, or, in other 
 words, a will independent of the society itself. It is no 
 less certain than it is important, notwithstanding the 
 contrary opinions which have been entertained, that the 
 larger the society, provided it lie within a practical 
 sphere, the more duly capable it will be of self-govern- 
 ment. And happily for the republican cause, the practic- 
 able sphere may be carried to a very great extent, by 
 a judicious modification and mixture of the federal 
 principle. Publius. 
 
 No. 52 [51]. (at™ Kor* ^acfe/f, February 8, 1788.) Hamilton (?) 
 
 QUALIFICATION AND TERM OF HOUSE OF 
 REPRESENTATIVES. 
 
 Electors — The qualifications of the members — The term of office — 
 Biennial elections — Value of frequent elections — i'erms of service in 
 other govermnents — In England, Ireland, and in the American colonies — 
 Biennial elections not dangerous — Reasons for this drawn from the 
 nature and position of Congress, 
 
 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. 
 
Hamilton an QUALIFICATIONS OF ELECTORS. 349 
 
 The first view to be taken of this part of the govern- 
 ment relates to the qualifications of the electors and the 
 elected. 
 
 Those of the former are to be the same with those of 
 the electors of the most numerous branch of the State 
 legislatures. The definition of the right of suffrage is 
 very justly regarded as a fundamental article of republi- 
 can government. It was incumbent on the convention, 
 therefore, to define and establish this right in the Con- 
 stitution. To have left it open for the occasional regula- 
 tion 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 im- 
 proper for the same reason; and for the additional reason 
 that it would have rendered too dependent on the State 
 governments that branch of the federal government 
 which ought to be dependent on the people alone. To 
 have reduced the different qualifications in the different 
 States to one uniform rule would probably have been as 
 dissatisfactory to some of the States as it would have 
 been difficult to the convention. The provision made by 
 the convention appears, therefore, to be the best that 
 lay within their option. It must be satisfactory to every 
 State, because it is comformable to the standard already 
 established, or which may be established, by the State 
 itself. It will be safe to the United States, because, be- 
 ing 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 constitu- 
 tions in such a manner as to abridge the rights secured 
 to them by the federal Constitution. 
 
 The qualifications of the elected, being Jess carefully 
 and properly defined by the State constitutions, and be- 
 ing at the same time more susceptible of uniformity, have 
 been very properly considered and regulated by the con- 
 vention. A representative of the United States must be 
 of the age of twenty-five years; must have been seven 
 years a citizen of the United States; must, at the time 
 of his election, be an inhabitant of the State he is to 
 
35° FREQUENCY OF ELECTIONS. [Ho. 52(51) 
 
 represent; and, during the time of his service, must be 
 in no office under the United States. Under these rea- 
 sonable 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 profes- 
 sion of religious faith. 
 
 The term for which the representatives are to be 
 elected falls under a second view which may be taken of 
 this branch. In order to decide on the propriety of this 
 article, two questions must be considered: first, whether 
 biennial elections will, in this case, be safe; secondly, 
 whether they be necessary or useful. 
 
 First. As it is essential to liberty that the govern- 
 ment in general should have a common interest with the 
 people, so it is particularly essential that the branch of 
 it under consideration should have an immediate depend- 
 ence on, and an intimate sympathy with, the people. 
 Frequent elections are unquestionably the only policy by 
 which this dependence and sympathy can be effectually 
 secured. But what particular degree of frequency may 
 be absolutely necessary for the purpose does not appear 
 to be susceptible of any precise calculation, and must 
 depend on a variety of circumstances with which it may 
 be connected. Let us consult experience, the guide that 
 ought always to be followed whenever it can be found. 
 
 The scheme of representation, as a substitute for a meeting of 
 the citizens in person, being at most but very imperfectly known 
 gee to ancient polity, it is in more modern times only that 
 
 No. 14, we are to expect instructive examples. And even 
 
 here, in order to avoid a research too vague and diffusive, it will 
 be proper to confine ourselves to the few examples which are best 
 known, and which bear the greatest analogy to our particular case. 
 The first to which this character ought to be applied is the House 
 of Commons in Great Britain. The history of this branch of the 
 English Constitution, anterior to the date of Magna Charta, is too 
 obscure to yield instruction. The very existence of it has been 
 made a question among political antiquaries. The earliest records 
 of subsequent date prove that parliaments were to sit only every 
 year ; not that they were to be elected every year. And even 
 
Hamilton (T)] LENGTH OF PARLIAMENTS. 3SI 
 
 these annual sessions were left so much at the discretion of the 
 monarch that, under various pretexts, very long and dangerous 
 intermissions were often contrived by royal ambition. To remedy 
 this grievance, it was provided by a statute, in the reign of Charles 
 II., that the intermissions should not be protracted beyond a 
 period of three years. On the accession of William III., when a 
 revolution took place in the government, the subject was still more 
 seriously resumed, and it was declared to be among the funda- 
 mental rights of the people that parliaments ought to be held 
 frequently. By another statute, which passed a few years later in 
 the same reign, the term " frequently," which had alluded to the 
 triennial period settled in the time of Charles II., is reduced to a 
 precise meaning ; it being expressly enacted that a new parliament 
 shall be called within three years after the termination of the 
 former. The last change, from three to seven years, is well 
 known to have been introduced pretty early in the present century, 
 under an alarm for the Hanoverian succession. From these facts 
 it appears that the greatest frequency of elections. which has been 
 deemed necessary in that kingdom, for binding the representatives 
 to their constituents, does not exceed a triennial return of them. 
 And if we may argue from the degree of liberty retained even 
 under septennial elections, and all the other vicious ingredients in 
 the parliamentary constitution, we cannot doubt that a reduction 
 of the period from seven to three years, with the other necessary 
 reforms, would so far extend the influence of the people over their 
 representatives as to satisfy us that biennial elections, under the 
 federal system, cannot possibly be dangerous to the requisite de- 
 pendence of the House of Representatives on their constituents. 
 
 Elections in Ireland, till of late, were regulated entirely by the 
 discretion of the crown, and were seldom repeated, except on 
 the accession of a new prince, or some other contingent event. 
 The parliament which commenced with George II. was continued 
 throughout his whole reign, a period of about thirty-five years. 
 The only dependence of the representatives on the people con- 
 sisted in the right of the latter to supply occasional vacancies, by 
 the election of new members, and' in the chance of some event 
 which might produce a general new election. The ability also of 
 the Irish parliament to maintain the rights of their constituents, so 
 far as the disposition might exist, was extremely shackled by the 
 control of the crown over the subjects of their deliberation. Of 
 late, these shackles, if I mistake not, have been broken ; and octen- 
 nial parliaments have besides been established. What effect may 
 be produced by this partial reform must be left to further experi- 
 
3S2 COLONIAL kUPRESENTATION. [No. 52 (51) 
 
 ence. The example of Ireland, from this view of it, can throw but 
 little light on the subject. As far as we can draw any conclusion 
 from it, it must be that if the people of that country have been 
 able under all these disadvantages to retain any liberty whatever, 
 the advantage of biennial elections would secure to them every 
 degree of liberty which might depend on a due connection between 
 their representatives and themselves. 
 
 Let us bring our inquiries nearer home. The example 
 of these States, when British colonies, claims particular 
 attention, at the same time that it is so well known as to 
 require little to be said on it. The principle of repre- 
 sentation, 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 con- 
 duct of the representatives of the people prior to the 
 Revolution, that biennial elections would have been 
 dangerous to the public liberties? The spirit which 
 everywhere displayed itself at the commencement of the 
 struggle, and which vanquished the obstacles to inde- 
 pendence, is the best of proofs that a sufScient portion 
 of liberty had been everywhere enjoyed to inspire both a 
 sense of its worth and a zeal for its proper enlargement. 
 This remark holds good, as well with regard to the then 
 colonies whose elections were least frequent as to those 
 whose elections were most frequent. Virginia was the 
 colony which stood first in resisting the parliamentary 
 usurpations of Great Britain; it was the first also in 
 espousing, by public act, the resolution of independence. 
 In Virginia, nevertheless, if I have not been misinformed, 
 elections under the former government were septennial. 
 This particular example is brought into view, not as a 
 proof of any peculiar merit, for the priority in those 
 instances was probably accidental; and still less of any 
 advantage in septennial elections, for when compared with 
 a greater frequency they are admissible; 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 
 
Itamilton (t) ] TERM OF THE HOUSE. 353 
 
 not a little strengthened by recollecting three circum- 
 stances. 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 legisla- 
 tures, 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 Representa- 
 tives 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. 
 
 No. 53 [52]. {.Independent Journal, February 9, 1788.) Hamilton (?) 
 
 TERM OF HOUSE OF REPRESENTATIVES. 
 
 Objections that when annual elections end tyranny begins, answered — 
 Biennial elections necessary and useful — Objections to unduly short 
 terms — Biennial elections useful and safe. 
 
 To the People of the State of New York: 
 
 I shall here, perhaps, be reminded of a current obser- 
 vation, "that where annual elections end, tyranny 
 begins." If it be true, as has often been remarked, that 
 
3S4 kLECTtOH OP STATE LEGISLATURES. [No. 53 (52) 
 
 sayings which become proverbial are generally founded 
 in reason, it is not less true that, when once established, 
 they are often applied to cases to which the reason of 
 them does not extend. I need not look for a proof 
 beyond the case before us. What is the reason on which 
 this proverbial observation is founded? No man will 
 subject himself to the ridicule of pretending that any 
 natural connection subsists between the sun or the 
 seasons and the period within which human virtue can 
 bear the temptations of power. Happily for mankind, 
 liberty is not, in this respect, confined to any single 
 point of time; but lies within extremes, which afford 
 sufficient latitude for all the variations which may be 
 required by the various situations and circumstances of 
 civil society. The election of magistrates might be, if it 
 were found expedient, as in some instances it actually 
 has been, daily, weekly, or monthly, as well as annual; 
 and if circumstances may require a deviation from the 
 rule on one side, why not also on the other side? Turn- 
 ing our attention to the periods established among our- 
 selves for the election of the most numerous branches of 
 the State legislatures, we find them by no means coinciding 
 any more in this instance than in the elections of other 
 civil magistrates. In Connecticut and Rhode Island the 
 periods are half-yearly. In the other States, South 
 Carolina excepted, they are annual. In South Carolina 
 they are biennial — as is proposed in the federal govern- 
 ment. Here is a difference, as four to one, between the 
 longest and shortest periods; and yet it would be not 
 easy to show that Connecticut or Rhode Island is better 
 governed, or enjoys a greater share of rational liberty, 
 than South Carolina; or that either the one or the other 
 of these States is distinguished in these respects, and by 
 these causes, from the States whose elections are different 
 from both. 
 
 In searching for the grounds of this doctrine I can 
 discover but one, and that is wholly inapplicable to our 
 case. The important distinction, so well understood in 
 America, between a Constitution established by the 
 
Hamilton (?) ] PAkLlAMENTARV DANGERS. 355 
 
 people and unalterable by the government, and a law 
 established by the government and alterable by the 
 government, seems to have been little understood and 
 less observed in any other country. Wherever the 
 supreme power of legislation has resided, has been 
 supposed to reside also a full power to change the form 
 of the government. Even in Great Britain, where the 
 principles of political and civil liberty have been most 
 discussed, and where we hear most of the rights of the 
 Constitution, it is maintained that the authority of the 
 Parliament is transcendent and uncontrollable, as well 
 with regard to the Constitution as the ordinary objects 
 of legislative provision. They have accordingly, in sev- 
 eral instances, actually changed, by legislative acts, some 
 of the most fundamental articles of the government. 
 They have in particular, on several occasions, changed 
 the period of election; and, on the last occasion, not 
 only introduced septennial in place of triennial elections, 
 but by the same act continued themselves in place four 
 years beyond the term for which they were elected by 
 the people. An attention to these dangerous practices 
 has produced a very natural alarm in the votaries of free 
 government, of which frequency of elections is the cor- 
 ner stone; and has led them to seek for some security 
 to liberty against the danger to which it is exposed. 
 Where no constitution, paramount to the government, 
 either existed or could be obtained, no constitutional 
 security, similar to that established in the United States, 
 was to be attempted. Some other security, therefore, 
 was to be sought for; and what better security would 
 the case admit than that of selecting and appealing to 
 some simple and familiar portion of time as a standard 
 for measuring the danger of innovations, for fixing the na- 
 tional 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 toward tyranny was to be 
 
35^ LEGISLATOR N^EEDS EXPERIENCE. [So. 83 (62) 
 
 calculated by the distance of departure from the fixed 
 point of annual elections. But what necessity can there 
 be of applying this expedient to a government limited, as 
 the federal government will be, by the authority of a para- 
 mount Constitution? Or who will pretend that the liber- 
 ties of the people of America will not be more secure 
 under biennial elections, unalterably fixed by such a Con- 
 stitution, than those of any other nation would be, where 
 elections were annual, or even more frequent, but subject 
 to alterations by the ordinary power of the government? 
 
 The second question stated is, whether biennial elec- 
 tions be necessary or useful. The propriety of answer- 
 ing 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 cer- 
 See tain degree of knowledge of the subjects on 
 
 No. 62. which he is to legislate, A part of this knowl- 
 
 edge may be acquired by means of information which lie 
 within the compass of men in private as well as public 
 stations. Another part can only be attained, or at least 
 thoroughly attained, by- actual experience in the station 
 which requires the use of it' The period of service 
 ought, therefore, in all such cases, to bear some propor- 
 tion to the extent of practical knowledge requisite to the 
 due performance of the service. The period of legisla- 
 tive 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 
 
 ' With the disappearance, or rather submergence, of congressional ora- 
 tory and the increased complication of legislative measures, a term in 
 Congress has become almost a necessity before any member can make 
 his influence strongly felt. Those states, therefore, which have a tend- 
 ency to re-elect the same men are apt to secure a slightly greater influ- 
 ence on legislation, as compared will} those which frequently change their 
 representatives, because the representatives of the former gain a greater 
 knowledge of congressional practice, and also because they increase their 
 chances of appointments on committees. It was through the constant re- 
 election of Clay, Calhoun, and Webster, far more than by their speeches, 
 that these men came to wield the power which they did. To-day scarcely 
 a member of Congress is known beyond his state, unless he has served 
 more than one term in that body.T-EoiTOR. 
 
Hamilton «)1 AFFAIRS OF THE STATES. 3S7 
 
 the period of two years bear no greater proportion to the 
 knowledge requisite for federal legislation than one year 
 does to the knowledge requisite for State legislation? 
 The very statement of the question, in this form, sug- 
 gests 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 co-mpass, are not very diversified, and 
 occupy much of the attention and conversation of every 
 class of people. The great theater of the United States 
 presents a very different scene. The laws are so far 
 from being uniform that they vary in every State; whilst 
 the public affairs of the Union are spread throughout a 
 very extensive region, and are extremely diversified by 
 the local affairs connected with them, and can with diffi- 
 culty 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 
 l)e not accommodated to the different laws and local 
 ircumstances relating to these objects in the different 
 tates? How can uniform regulations for the militia 
 e duly provided, without a similar knowledge of many 
 nternal circumstances by which the States are dis- 
 tinguished 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 
 
358 KNO W LEDGE OF FOREIGN A F FAIRS. [No. 53 (52) 
 
 a proportional degree of information with regard to 
 them. 
 
 It is true that all these difficulties will, by degrees, 
 very much diminished. The most laborious task will 
 be the proper inauguration of the government and the 
 primeval formation of a federal code. Improvements on 
 the first draughts will every year become both easier and 
 fewer. Past transactions of the government will be a 
 ready and accurate source of information to new mem- 
 bers. The affairs of the Union will become more and 
 more objects of curiosity and conversation among the 
 citizens at large.' And the increased intercourse among 
 those of different States will contribute not a little to 
 diffuse a mutual knowledge of their affairs, as this again 
 will contribute to a general assimilation of their manners 
 and laws. But with all these abatements, the business of 
 federal legislation must continue so far to exceed, both 
 in novelty and difficulty, the legislative business of a 
 single State, as to justify the longer period of service 
 assigned to those who are to transact it. 
 
 A branch of knowledge which belongs to the 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 Repre- 
 sentatives 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 atten- 
 
 ' If our press is a fair exemplar, the reverse of this is true. In l7go, 
 or in 1840, the newspapers devoted proportionally far more space to 
 national politics than they do in 1897. What is yet more striking, they 
 rarely paid much heed to state, and almost none to local politics, both of 
 which to-day receive as close attention and as much space as do general 
 politics. — Editor. 
 
Hamilton (?)] RE-ELECTION OF MEMBERS. 359 
 
 tion in the ordinary course of legislation, and will some- 
 times demand particular legislative sanction and co- 
 operation. Some portion of this knowledge may, no 
 doubt, be acquired in a man's closet; but some of it also 
 can only be derived from the public sources of informa- 
 tion; and all of it will be acquired to best effect by a 
 practical attention to the subject during the period of 
 actual service in the legislature. 
 
 There are other considerations, — of less importance, 
 perhaps, — but which are not unworthy of notice. The 
 distance which many of the representatives will be obliged 
 to travel, and the arrangements rendered necessary by 
 that circumstance, might be much more serious objec- 
 tions with fit men to this service, if limited to a single 
 year, than if extended to two years. No argument can 
 be drawn on this subject from the case of the delegates 
 to the existing Congress. They are elected annually, it 
 is true; but their re-election is considered by the legis- 
 lative assemblies almost as a matter of course. The 
 election of the representatives by the people would not 
 be governed by the same principle. 
 
 A few of the members, as happens in all such assemblies, 
 will possess superior talents; will, by frequent re-elec- 
 gee tions, become members of long standing; will 
 
 N0.S6. be thoroughly masters of the public business, 
 
 and perhaps not unwilling to avail themselves of those 
 advantages. The greater the proportion of new members, 
 and the less the information of the bulk of the members, 
 the more apt will they be to fall into the snares that may 
 be laid for them. This remark is no less applicable to 
 the relation which will subsist between the House of 
 Representatives and the Senate. 
 
 It is an inconvenience mingled with the advantages of 
 our frequent elections, even in single States, where they 
 are large, and hold but one legislative session in a year, 
 that spurious elections cannot be investigated and an- 
 nulled 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, 
 
36o RATIO OF REPRESENTATION. LNo. 64 (63) 
 
 is sure of holding it a sufficient time to answer Iiis pur- 
 poses. Hence, a very pernicious encouragement is given 
 to the use of unlawful means for obtaining irregular 
 returns. Were elections for the federal legislature to be 
 annual, this practice might become a very serious abuse, 
 particularly in the more distant States. Each House is, 
 as it necessarily must be, the judge of the elections, 
 qifalifications, and returns of its members; and whatever 
 improvements may be suggested by experience for sim- 
 plifying and accelerating the process in disputed cases, 
 so great a portion of a year would unavoidably elapse 
 before an illegitimate member could be dispossessed of 
 his seat, that the prospect of such an event would be 
 little check to unfair and illicit means of obtaining a seat.' 
 All these considerations, taken together, warrant us in 
 affirming that biennial elections will be as useful to the 
 affairs of the public as we have seen that they will be 
 safe to the liberty of the people. Publius. 
 
 No. 54 [53]. (iVia' For/l/'a.r.irf, Februarys, 1788.) Hamilton (?) 
 
 RATIO OF REPRESENTATION IN LOWER 
 BRANCH. 
 
 Numbers the proper standard for representation — Slave representation 
 — Objection that slaves do not enter into local representation considered — 
 The right of representation of property as well as persons — Votes in Con- 
 gress 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 of repre- 
 sentation. 
 
 To the People of the State of New York: 
 
 The next view which I shall take of the House of Representatives 
 relates to the appointment of its members to the several States, 
 which is to be determined by the same rule with that of direct taxes.' 
 
 ' Unfortunately, the House of Representatives, so far from attempt- 
 ing to make " improvements " in the system of judging disputed elections, 
 has shown only an eagerness to seat those claimants who coincide in 
 party views. This tendency is fully set forth in the " History of 
 Disputed Elections." — Editor. 
 
 ^ This clause has been so modified by the XlVth Amendment as to 
 make this number purely historical. — Editor, 
 
Hamilton «)] REPRESENTATION OF SLAVES. 36 1 
 
 It is not contended that the number of people in each State 
 ought not to be the standard for regulating the proportion of those 
 who are to represent the people of each State. The establishment 
 of the same rule for the appointment of taxes will probably be as 
 little contested ; though the rule itself in this case is by no means 
 founded on the same principle. In the former case the rule is 
 understood to refer to the personal rights of the people, with which 
 it has a natural and universal connection. In the latter, it has 
 reference to the proportion of wealth, of which it is in no case a 
 precise measure, and in ordinary cases a very unfit one. But not- 
 withstanding the imperfection of the rule as applied to the relative 
 wealth and contributions of the States, it is evidently the least 
 objectionable among the practicable rules, and had too recently 
 obtained the general sanction of America, not to have found a 
 ready preference with the convention. 
 
 All this is admitted, it will perhaps be said ; but does it follow, 
 from an admission of numbers for the measure of representation, 
 or of slaves combined with free citizens as a ratio of taxation, that 
 slaves ought to be included in the numerical rule of representa- 
 tion ? 1 Slaves are considered as property, not as persons. They 
 ought therefore to be comprehended in estimates of taxation which 
 are founded on property, and to be excluded from representation 
 which is regulated by a census of persons. This is the objection, 
 as I understand it, stated in its full force. I shall be equally can- 
 did in stating the reasoning which may be offered on the opposite 
 side. 
 
 " We subscribe to the doctrine," might one of our Southern 
 brethren observe, " that representation relates more immediately 
 gee to persons and taxation more immediately to prop- 
 
 ITo. 42. erty, and we join in the application of this distinction 
 
 to the case of our slaves. But we must deny the fact that slaves 
 are considered merely as property, and in no respect whatever as 
 persons. The true state of the case is that they partake of both 
 these qualities : being considered by our laws, in some respects, as 
 persons, and in other respects as property. In being compelled to 
 labor, not for himself, but for a master ; in being vendible by one 
 master to another master ; and in being subject at all times to be 
 
 ' On the subject of what has passed into history as the ' ' Federal 
 Number,"see " Slave Representation, by Boreas," 1812 ; Carey's " Calm 
 Address to the People of the Eastern States on the Subject of the Repre- 
 sentation of Slaves," 1814, and the amendments proposed by the Hart- 
 ford convention in the Appendix. — Editor. 
 
 ^ See also Hamilton's speech in the New York convention (Elliot's 
 " Debates," ii. 237).— Editor. 
 
362 SLA VES AS PERSONS AND PROPERTY. [No. 84(53) 
 
 restrained in his liberty and chastised in his body, by the capricious 
 will of another, the slave may appear to be degraded from the 
 human rank, and classed with those irrational animals which fall 
 under the legal denomination of property. In being protected on 
 the other hand, in his life and in his limbs, against the violence of 
 all others, even the master of his labor and his liberty ; and in 
 being punishable himself for all violence committed against others 
 — the slave is no less evidently regarded by the law as a member 
 of the society, not as a part of the irrational creation ; as a moral 
 person, not as a mere article of property. The federal Constitu- 
 tion, therefore, decides with great propriety on the case of our 
 slaves, when it views them in the mixed character of persons and 
 of property. This is in fact their true character. It is the charac- 
 ter bestowed on them by the laws under which they live ; and it 
 will not be denied that these are the proper criterion ; because it 
 is only under the pretext that the laws have transformed the 
 negroes into subjects of property that a place is disputed them in 
 the computation of numbers ; and it is admitted that, if the laws 
 were to restore the rights which have been taken away, the 
 negroes could no longer be refused an equal share of representa- 
 tion 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 repre- 
 sentation were to be calculated, and inserted them on the lists 
 when the tariff of contributions was to be adjusted .' Could it be 
 reasonably expected that the Southern States would concur in a 
 system which considered their slaves in some degree as men 
 when burdens were to be imposed, but refused to consider them in 
 the same light when advantages were to be conferred .' Might 
 not some surprise also be expressed that those who reproach the 
 Southern States with the barbarous policy of considering as prop- 
 erty a part of their human brethren, should themselves contend 
 that the government to which all the States are to be parties 
 ought to consider this unfortunate race more completely in the 
 unnatural light of property than the very laws of which they 
 complain ? 
 
 " It may be replied, perhaps, that slaves are not included in the 
 estimate of representatives in any of the States possessing them. 
 They neither vote themselves nor increase the votes of their mas- 
 ters. Upon what principle, then, ought they to be taken into the 
 
Hamilton (b] THREE-FIFTHS APPORTIONMENT. 363 
 
 federal estimate of representation ? In rejecting them altogether, 
 the Constitution would, in this respect, have followed the very laws 
 which have been appealed to as the proper guide. 
 
 " This objection is repelled by a single observation. It is a fun- 
 damental principle of the proposed Constitution that, as the aggre- 
 gate number of representatives allotted to the several States is to 
 be determined by a federal rule, founded on the aggregate number 
 of inhabitants, so the right of choosing this allotted number in 
 each State is to be exercised by such part of the inhabitants as the 
 State itself may designate. The qualifications on which the right 
 of suffrage depend are not, perhaps, the same in any two States. 
 In some of the States the difference is very material. In every 
 State a certain proportion of inhabitants are deprived of this right 
 by the constitution of the State who will be included in the census 
 by which the federal Constitution apportions the representatives. 
 In this point of view the Southern States might retort the com- 
 plaint, by insisting that the principle laid down by the convention 
 required that no regard should be had to the policy of particular 
 States toward their own inhabitants ; and, consequently, that the 
 slaves, as inhabitants, should have been admitted into the census 
 according to their full number, in like manner with other inhabit- 
 ants, who, by the policy of other States, are not admitted to all 
 the rights of citizens. A rigorous adherence, however, to this 
 principle is waived by those who would be gainers by it. All that 
 they ask is that equal moderation be shown on the other side. 
 Let the case of the slaves be considered, as it is in truth, a peculiar 
 one. Let the compromising expedient of the Constitution be 
 mutually adopted, which regards them as inhabitants, but as 
 debased by servitude below the equal level of free inhabitants ; 
 which regards the slave as divested of two-fifths of the man} 
 
 ' Since the freeing and admitting of the slave to citizenship, this two- 
 fifths idea has of course entirely disappeared, and tlie negro is counted 
 as a full man. By the XlVth Amendment, any state depriving the freed- 
 man of his vote lost a corresponding degree of representation ; die 
 theory being that this would secure to the negro his rights of citizenship, 
 because the southern states would not choose to forego the large loss of 
 representation which his disfranchisement would involve. The south 
 obtains the same result, however, first by the suppression of the negro 
 vote, and more lately, with less completeness but with greater nominal 
 fairness, by the introduction of educational restrictions which the elec- 
 tion officers use to exclude the ballots of negroes. The whole history of 
 the federal attempts to solve the negro problem for the south is a his- 
 tory of the folly of national attempts to destroy the home rule principle 
 which is essentially the theory of American institutions. Far from 
 achieving any good, such efforts have manifestly made the problem more 
 difficult.— Editor. 
 
364 PkOPERTV AND REPRESENTATlOtf. [No. 64 (58) 
 
 "After all, may not another ground be taken on which this 
 article of the Constitution will admit of a still more ready defense ? 
 We havehitherto proceeded on the idea that representation related 
 to persons only, and not at all to property. But is it a just idea ? 
 Government is instituted no less for protection of the property, 
 than of the persons, of individuals. The one as well as the other, 
 therefore, may be considered as represented by those who are 
 charged with the government. Upon this principle it is that in 
 several of the States, and particularly in the State of New York, 
 one branch of the government is intended more especially to be the 
 guardian of property, and is accordingly elected by that part of the 
 society which is most interested in this object of government.' In 
 the federal Constitution, this policy does not prevail. The rights 
 of property are committed into the same hands with the personal 
 rights. Some attention ought, therefore, to be paid to property in 
 the choice of those hands. 
 
 " For another reason, the votes allowed in the federal legislature 
 to the people of each State ought to bear some proportion to the 
 comparative wealth of the States. States have not, like individ- 
 uals, an influence over each other arising from superior advantages 
 of fortune. If the law allows an opulent citizen but a single vote 
 in the choice of his representative, the respect and consequence 
 which he derives from his fortunate situation very frequently 
 guide the votes of others to the objects of his choice ; and through 
 this imperceptible channel the rights of property are conveyed into 
 the public representation. A State possesses no such influence 
 over other States.' It is not probable that the richest State in the 
 Confederacy will ever influence the choice of a single representative 
 in any other State.' Nor will the representatives of the larger and 
 
 ' The qualification of the members of the Senate of New York, by the 
 constitution of 1777, was a freehold, and they were elected only by voters 
 having a freehold of the value of ;^ioo over and above all debts charged 
 thereon. — Editor. 
 
 ' This is quite true, if we simply consider the states as states. But with 
 the growth of great commercial and manufacturing centers there has 
 come what is a little different. The collection of vast sums of money from 
 such sections as New England and Pennsylvania, whenever a campaign 
 involving a tariff issue is to the front, is not merely matter of public 
 knowledge, but even of boast with the party leaders who are to disburse 
 the corruption fund in the "doubtful" states. Into the same category 
 fall the enormous amounts collected in l8g6 from all the moneyed centers 
 to fight the silver issue in the south and west. A more curious instance 
 still was that of the funds collected in the east and south by the two great 
 forces of abolition and slavery to carry on the struggle for supremacy in 
 the days of " bleeding Kansas." — Editor. 
 
 ' It was a brag of the extreme protective interest that by a liberal use 
 
Hamilton (4)] kMPkESEMTATlVES' VOTES E^UAL. 365 
 
 richer States possess any other advantage in the federal legislature, 
 over the representatives of other States, than what may result from 
 their superior number alone. As far, therefore, as their superior 
 wealth and weight may justly entitle them to any advantage, it 
 ought to be secured to them by a superior share of representation. 
 The new Constitution is, in this respect, materially different from the 
 existing Confederation, as well as from that of the United Nether- 
 lands and other similar confederacies. In each of the latter the 
 efficacy of the federal resolutions depends on the subsequent and 
 voluntary resolutions of the states composing the union. Hence 
 the states, though possessing an equal vote in the public councils, 
 have an unequal influence, corresponding with the unequal impor- 
 tance 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 con- 
 sequently 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 in- 
 dividually given in a State legislature, by the representatives of 
 unequal counties or other districts, have each a precise equality of 
 value and effect ; or if there be any difference in the case, it pro- 
 ceeds 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 representa- 
 tion which the convention have established. 
 
 In one respect, the establishment of a common measure for 
 representation and taxation will have a very salutary effect. As 
 the accuracy of the census to be obtained by the Congress will 
 necessarily depend, in a considerable degree, on the disposition, if 
 not on the co-operation, of the States, it is of great importance 
 that the States should feel as little bias as possible to swell or to 
 reduce the amount of their numbers. Were their share of repre- 
 sentation alone to be governed by this rule, they would have an 
 interest in exaggerating their inhabitants. Were the rule to decide 
 their share of taxation alone, a contrary temptation would prevail.' 
 
 of money they defeated the re-election of Wilson of West Virginia, be- 
 cause of his share in the Wilson tariff bill of 1894. — Editor. 
 
 ' It was charged that the national census of 1890 materially underrated 
 
366 SIZE OF THE HOUSE. [No. 64 (63) 
 
 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. 
 
 No. 55 [54]. klndefe-ndeni Journal, February 13, 1788.) Hamilton (?) 
 
 SIZE OF THE HOUSE OF itEPRESENTATIVES. 
 
 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 objections 
 considered and answered — Sources of danger considered. 
 
 To the People of the State of New York: 
 
 The number of which the House of Representatives is 
 to consist forms another and a very interesting point of 
 view, under which this branch of the federal legislature 
 may be contemplated. Scarce any article, indeed, in the 
 whole Constitution seems to be rendered more worthy . 
 of attention, by the weight of character and the apparent 
 force of argument with which it has been assailed. The 
 charges exhibited against it are, first, that so small a 
 number of representatives will be an unsafe depositary 
 of the public interests; secondly, that they will not pos- 
 sess 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 corre- 
 spondent increase of the representatives. 
 
 the population of New York city, thus reducing her quota of representa- 
 tives in the House of Representatives. A police census taken imme- 
 diately afterward seemed to prove the assertion. As the census was 
 prepared under Republican auspices and New York city was strongly 
 Democratic, the partisan object was obvious. — Editor. 
 
Hamilton (?)] SIZE OF STATE LEGISLATURES. 367 
 
 In general it may be remarked on this subject that no 
 political problem is less susceptible of a precise solution 
 than that which relates to the number most convenient 
 for a representative legislature ; nor is there any point on 
 which the policy of the several States is more at variance, 
 whether we compare their legislative assemblies directly 
 with each other, or consider the proportions which they 
 respectively bear to the number of their constituents. 
 Passing over the difference between the smallest and 
 largest States, as Delaware, whose most numerous 
 branch consists of twenty-one representatives, and 
 Massachusetts, where it amounts to between three and 
 four hundred, a very considerable difference is observ- 
 able among States nearly equal in population. The 
 number of representatives in Pennsylvania is not more 
 than one-fifth of that in the State last mentioned. New 
 York, whose population is to that of South Carolina as 
 six to five, has little more than one-third of the number 
 of representatives. As great a disparity prevails be- 
 tween the States of Georgia and Delaware or Rhode 
 Island. In Pennsylvania the representatives do not bear 
 a greater proportion to their constituents than of one 
 for every four or five thousand. In Rhode Island they 
 bear a. proportion of at least one for every thousand. 
 And according to the constitution of Georgia, the pro- 
 portion may be carried to one to every ten electors; and 
 must unavoidably far exceed the proportion in any of 
 the other States. 
 
 Another general remark to be made is that the ratio 
 between the representatives and the people ought not to 
 be the same where the latter are very numerous as where 
 they are very few. Were the representatives in Virginia 
 to be regulated by the standard in Rhode Island, they 
 would, at this time, amount to between four and five 
 hundred; and twenty or thirty years hence, to a thou- 
 sand. On the other hand, the ratio of Pennsylvania, if 
 applied to the State of Delaware, would reduce the 
 representative assembly of the latter to seven or eight 
 members. Nothing can be more fallacious than to found 
 
368 NUMBER OF REPRESENTATIVES. [No, 66 (54) 
 
 our political calculations on arithmetical principles. 
 Sixty or seventy men may be more properly trusted with 
 a given degree of power than six or seven. But it does 
 not follow that six or seven hundred would be propor- 
 tionately a better depositary. And if we carry on the 
 supposition to six or seven thousand, the whole reason- 
 ing ought to be reversed. The truth is that, in all 
 cases, a certain number at least seems to be necessary 
 to secure the benefits of free consultation and discussion, 
 and to guard against too easy a combination for improper 
 purposes; as, on the other hand, the number ought at 
 most to be kept within a certain limit, in order to avoid 
 the confusion and intemperance of a multitude. In all 
 very numerous assemblies, of whatever character com- 
 posed, passion never fails to wrest the scepter 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 safety 
 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 objec- 
 tions which have been stated against the number of members 
 proposed for the House of Representatives. It is said, in the 
 first place, that so small a number cannot be safely trusted with 
 so much power. 
 
 The number of which this branch of the legislature is to consist 
 at the outset of the government will be sixty-five. Within three 
 years a census is to be taken, when the number may be augmented 
 to one for every thirty thousand inhabitants ; and within every 
 successive period of ten years the census is to be renewed, and 
 augmentations may continue to be made under the above limita- 
 tion. It will not be thought an extravagant conjecture that the 
 first census will, at tiie rate of one for every thirty thousand, raise 
 the number of representatives to at least one hundred. Estiraat- 
 
Hamilton 0) ] FE IVNESS OF MEMBERS NO DANGER. 369 
 
 ing the negroes in the proportion of three-fifths, it can scarcely be 
 doubted that the population of the United States will by that time, 
 if it does not already, amount to three millions. At the expiration 
 of twenty-five years, according to the computed rate of increase, 
 the number of representatives will amount to two hundred ; and 
 of fifty years, to four hundred. This is a number which, I pre- 
 sume, 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 representa- 
 tives will be augmented from time to time in the manner provided 
 by the Constitution. On a contrary supposition, I should admit 
 the objection to have very great weight indeed. 
 
 The true question to be decided then is, whether the smallness 
 of the number, as a temporary regulation, be dangerous to the 
 public liberty .' Whether sixty-five members for a few years, and 
 hundred or two hundred for a few more, be a safe depositary for 
 a limited and well-guarded power of legislating for -the United 
 States ? I must own that I could not give a negative answer to 
 this question, without first obliterating every impression which I 
 have received with regard to the present genius of the people of 
 America, the spirit which actuates the State legislatures, and the 
 principles which are incorporated with the political character of 
 every class of citizens. I am unable to conceive that the people 
 of America, in their present temper, or under any circumstances 
 which can speedily happen, will choose, and every second year 
 repeat the choice of, sixty-five or a hundred men who would be 
 disposed to form and pursue a scheme of tyranny or treachery. I 
 am unable to conceive that the State legislatures, which must feel 
 so many motives to watch, and which possess so many means of 
 counteracting the federal legislature, would fail either to detect 
 or to defeat a conspiracy of the latter against the liberties of their 
 common constituents. I am equally unable to conceive that there 
 are at this time, or can be in any short time, in the United States, 
 any sixty-five or a hundred men capable of recommending them- 
 selves to the choice of the people at large, who would either desire 
 or dare, within the short space of two years, to betray the solemn 
 trusted committed to them. What change of circumstances, time, 
 and a fuller population of our country may produce, requires a 
 prophetic spirit to declare, which makes no part of my pretensions. 
 But judging from the circumstances now before us, and from the 
 probable state of them within a moderate period of time, I must 
 pronounce that the liberties of America cannot be unsafe in the 
 number of hands proposed by the federal Constitution. 
 
37° CONSTITUTIONAL CONGRESS. [No. 56 (64) 
 
 From what quarter can the danger proceed? Are we 
 afraid of foreign gold? If foreign gold could so easily 
 corrupt our federal rulers and enable them to ensnare 
 and betray their constituents, how has it happened that 
 we are at this time a free and independent nation? The 
 Congress which conducted us through the Revolution was 
 a less numerous body than their successors will be; they 
 were not chosen by, nor responsible to, their 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 under the veil of secrecy; they had 
 the sole transaction of our affairs with foreign nations; 
 through the whole course of the war, they had the fate 
 of their country more in their hands than it is to be 
 hoped will ever be the case with our future representa- 
 tives; 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 experi- 
 ence that the public trust was not betrayed; nor has the 
 purity of our public councils in this particular ever suf- 
 fered, 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 
 gee found by the President, or the Senate, or both? 
 
 No. 76. Their emoluments of office, it is to be pre- 
 
 sumed, will not, and without a previous corruption of the 
 House of Representatives cannot, more than suffice for 
 very different purposes; their private fortunes, as they 
 must all be Americian citizens, cannot possibly be sources 
 of danger. The only means, then, which they can pos- 
 sess 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 im- 
 probability of such a mercenary and perfidious combina- 
 
Hamilton (?) ] MEMBERS CANNOT HOLD OFFICE. 371 
 
 tion of the several members of government, standing on 
 as different foundations as republican principles will well 
 admit, and at the same time accountable to the society 
 over which they are placed, ought alone to quiet this 
 apprehension. But, fortunately, the Constitution has 
 provided a still further safeguard. The members of the 
 Congress are rendered ineligible to any civil offices that 
 ggg may be created, or of which the emoluments 
 
 No. 77. 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 will be 
 sufficient to purchase the guardians of the people, 
 selected by the people themselves, is to renounce every 
 rule by which events cwght to be calculated, and to 
 substitute an indiscriminate and unbounded jealousy, 
 with which all reasoning must be vain. The sincere 
 friends of liberty who give themselves up to the extrav- 
 agancies of this passion are not aware of the injury 
 they do their own cause. As there is a degree of de- 
 pravity in mankind which requires a certain degree of 
 circumspection and distrust, so there are other qualities 
 in human nature which justifiy a certain portion of 
 esteem and confidence. Republican government presup- 
 poses 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. 
 
372 KNOWLEDGE IN REPRESENTATIVES. [No. 66 (86) 
 No. 56 [55]. (.Independent Journal, YebrMaxyL6,i7ii.') Hamilton (?) 
 
 NECESSARY KNOWLEDGE IN THE REPRE- 
 SENTATIVE CONSIDERED IN RELATION TO 
 THE RATIO OF REPRESENTATION. 
 
 Objection that Congress will he 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 be sufficient — Taxation — Militia — The experience of 
 Great Britain. 
 
 To the People of the State of New York: 
 
 The second charge against the House of Representa- 
 tives is that it will be too small to possess a due knowl- 
 edge of the interests of its constituents. 
 
 As this objection evidently proceeds from a compari- 
 son of the proposed number of representatives with the 
 great extent of the United States, the number of their 
 inhabitants, and the diversity of their interests, without 
 taking into view at the same time the circumstances 
 which will distinguish the Congress from other legisla- 
 lative 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 repre- 
 sentative ought to be acquainted with the interests and 
 circumstances of his constituents. But this principle can 
 extend no further than to those circumstances and inter- 
 ests to which the authority and care of the representa- 
 tive relate. An ignorance of a variety of minute and 
 particular objects, which do not lie within the compass 
 of legislation, is consistent with every attribute necessary 
 to a due performance of the legislative trust. In deter- 
 mining the extent of information required in the exer- 
 cise 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. 
 
Hamilton (?)] TAXATION -AND THE STATES. 373 
 
 A proper regulation of commerce requires much infor- 
 mation, as has been elsewhere remarked; but as far as 
 this information relates to the laws and local situation of 
 each individual State, a very few representatives would 
 be very sufficient vehicles of it to the federal councils. 
 
 Taxation will consist, in a great measure, of duties 
 which will be involved in the regulation of commerce. 
 So far the preceding remark is applicable to this object. 
 As far as it may consist of internal collections, a more 
 diffusive knowledge of the circumstances of the State 
 may be necessary. But will not this also be possessed in 
 sufficient degree by a very few intelligent men, diffusively 
 elected within the State? Divide the largest State into 
 ten or twelve districts, and it will be found that there 
 will be no peculiar local interests in either which will not 
 be within the knowledge of the representative of the dis- 
 trict. Besides this source of information, the laws of 
 the State, framed by representatives from every part of 
 it, will be almost of themselves a sufficient guide. In 
 every State there have been made, and must continue to 
 be made, regulations on this subject which will, in many 
 cases, leave little more to be done by the federal legisla- 
 ture than to review the different laws and reduce them 
 in one general act. A skillful individual in his closet, 
 with all the local codes before him, might compile a law 
 on some subjects of taxation for the whole Union with- 
 out any aid from oral information, and it may be ex- 
 pected that whenever internal taxes may be necessary, 
 and particularly in cases requiring uniformity through- 
 out the States, the more simple objects will be preferred. 
 To be fully sensible of the facility which will be given to 
 this branch of federal legislation by the assistance of the 
 State codes, we need only suppose for a moment that 
 this or any other State were divided into a number of 
 parts, each having and exercising within itself a power 
 of local legislation. Is it not evident that a degree of 
 local information and preparatory labor would be found 
 in the several volumes of their proceedings which would 
 very much shorten the labors of the general legislature, 
 
374 MILITIA AND THE STATES. [No. 86 (65; 
 
 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 mem- 
 bers, and may even at the very time be members, of the 
 State legislature, where all the local inforniation and 
 interests of the State are assembled, and from whence 
 they may easily be conveyed by a very few hands into 
 the legislature of the United States. 
 
 The observations made on the subject of taxation 
 apply with greater force to the case of the militia. For 
 however different the rules of discipline may be in differ- 
 ent 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 sufificiency of a moderate number 
 See of representatives, does not in any respect 
 
 STo. 53. contradict what was urged on another occa- 
 
 sion with regard to the extensive information which the 
 representatives ought to possess, and the time that 
 might be necessary for acquiring it. This information, 
 so far as it may relate to local objects, is rendered 
 necessary and difficult, not by a difference of laws and 
 local circumstances within a single State, but of those 
 among different States. Taking each State by itself, its 
 laws are the same, and its interests but little diversified. 
 A few men, therefore, will possess all the knowledge 
 requisite for a proper representation of them. Were the 
 
 ' In the text of the collected edition of 1788 this paragraph reads : 
 ' ' With regard to the regulation of the militia, there are scarcely any 
 circumstances in reference to which local knowledge can be said to be 
 necessary. The general face of the country, whether mountainous or 
 level, most fit for the operations of infantry or cavalry, is almost the 
 only consideration of this nature that can occur. The art of war teaches 
 general principles of organization, movement, and discipline, which 
 apply universally." — Editor. 
 
Hamilton (t)1 INCREASE OF MEMBERS FORESEEN. 375 
 
 interests and affairs of each individual State perfectly 
 simple and uniform, a knowledge of them in one part 
 would involve a knowledge of them in every other, and 
 the whole State might be competently represented by a 
 single member taken from any part of it. On a com- 
 parison of the different States together, we find a great 
 dissimilarity in their laws, and in many other circum- 
 stances connected with the objects of federal legislation, 
 with all of which the federal representatives ought to 
 have some acquaintance. Whilst a few representatives, 
 therefore, from each State, may bring with them a due 
 knowledge of their own State, every representative will 
 have much information to acquire concerning all the 
 other States. The changes of time, as was formerly re- 
 marked, on the comparative situation of the different 
 States, will have an assimilating effect. The effect of 
 time on the internal affairs of the States, taken singly, 
 will be just the contrary. At present some of the States 
 are little more than a society of husbandmen. Few of 
 them have made much progress in those branches of 
 industry which give a variety and complexity to the 
 affairs of a nation. These, however, will in all of them 
 be the fruits of a more advanced population, and will 
 require, on the part of each State, a fuller representation. 
 The foresight of the convention has accordingly taken 
 care that the progress of population may be accompanied 
 with a proper increase of the representative branch of 
 the government. 
 
 The experience of Great Britain, which presents to mankind so 
 many political lessons, both of the monitory and exemplary kind, 
 and which has been frequently consulted in the course of these 
 inquiries, corroborates the result of the reflections which we have 
 just made. The number of inhabitants in the two kingdoms of 
 England and Scotland cannot be stated at less than 8,000,000. 
 The representatives of these 8,000,000 in the House of Commons 
 amount to 558. Of this number, one-ninth are elected by 364 
 persons, and one-half by 5723 persons.* It cannot be supposed 
 that the half thus elected, and who do not even reside among the 
 
 * Burgh's " Political Disquisitions." — PUBLIUS. 
 
37^ BRITISH REPRESENTA TtON. CKo. 66 (65) 
 
 people at large, can add anything either to the security of the 
 people against the government, or to the knowledge of their cir- 
 cumstances and interests in the legislative councils. On the 
 contrary, it is notorious that they are more frequently the repre- 
 sentatives and instruments of the executive magistrate than the 
 guardians and advocates of the popular rights. They might, 
 therefore, with great propriety, be considered as something more 
 than a mere deduction from the real representatives of the nation. 
 We will, however, consider them in this light alone, and will not 
 extend the deduction to a considerable number of others, who do 
 not reside among their constituents, are very faintly connected 
 with them, and have very little particular knowledge of their 
 affairs. With all these concessions, 279 persons only will be the 
 depositary of the safety, interest, and happiness of 8,ocx},ooo — 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 complicated. Yet it is very certain, not only that 
 a valuable portion of freedom has been preserved under all these 
 circumstances, but that the defects in the British code are charge- 
 able, in a very small proportion, on the ignorance of the legisla- 
 lature concerning the circumstances of the people. Allowing to 
 this case the weight which is due to it, and comparing it with 
 that of the House of Representatives as above explained, it seems 
 to give the fullest assurance that a representative for every thirty 
 thousand inhabitants will render the latter both a safe and com- 
 petent guardian of the interests which will be confided to it. 
 
 PUBLIUS. 
 
Hamilton (1)] HOUSE AS PRETENDED OLIGARCHY. 377 
 
 No. 57 [56]. (New KiJj-yt/VjfM February 19, 1788.) Hamilton (?) 
 
 UNLIKELIHOOD THAT THE HOUSE OF REP- 
 RESENTATIVES WILL ELEVATE THE FEW- 
 ABOVE THE MANY. 
 
 This objection, in principle , strikes at the root of representative govern- 
 ment — Members elected by and taken from all classes — Securities to 
 insure fidelity of members enumerated — Provisions for electing members, 
 and their qualifications, like those of state officers — The relative numbers 
 of the constituencies no reason for approval of state and disapproval of 
 federal system — The doctrine neither reasonable nor admissible — It is not 
 sustained by facts — Examples from House of Commons and from the 
 states. 
 
 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 extra- 
 ordinary. Whilst the objection itself is leveled against a 
 pretended oligarchy, the principle of it strikes at the 
 very root of republican government. 
 
 The aim of every political constitution is, or ought to 
 be, first to obtain for rulers men who possess most 
 wisdom to discern, and most virtue to pursue the com- 
 mon good of the society; and in the next place, to take 
 the most effectual precautions for keeping them virtuous 
 whilst they continue to hold their public trust. The 
 elective mode of obtaining rulers is the characteristic 
 policy of republican government. The means relied on 
 in this form of government for preventing their degener- 
 acy are numerous and various. The most effectual one 
 is such a limitation of the term of appointments as will 
 maintain a proper responsibility to the people. 
 
 Let me now ask what circumstance there is in the 
 constitution of the House of Representatives that violates 
 the principles of republican government, or favors the 
 
37^ CHARACTER OF MEMBERS. [No. 67 (56) 
 
 elevation of the few on the ruins of the many? Let me 
 ask whether every circumstance is not, on the contrary, 
 strictly conformable to these principles, and scrupulously 
 impartial to the rights and pretensions of every class and 
 description of citizens? 
 
 Who are to be the electors of the federal representa- 
 tives? Not the rich more than the poor; not the 
 learned more than the ignorant; not the haughty heirs 
 of distinguished names more than the humble sons of 
 obscurity and unpropitious fortune. The electors are to 
 be the great body of the people of the United States. 
 They are to be the same who exercise the right in every 
 State of electing the corresponding branch of the legis- 
 lature 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 suffrages of their fellow-citizens may confer the 
 representative trust, we shall find it involving every 
 security which can be devised or desired for their fidelity 
 to their constituents. 
 
 In the first place, as they will have been distinguished 
 by the preference of their fellow-citizens, we are to pre- 
 sume that in general they will be somewhat distinguished 
 also by those qualities which entitle them to it, and which 
 promise a sincere and scrupulous regard to the nature of 
 their engagements. 
 
 In the second place, they will enter into the public 
 service under circumstances which cannot fail to produce 
 a temporary affection at least to their constituents. 
 There is in every breast a sensibility to marks of honor, 
 of favor, of esteem, and of confidence, which, apart from 
 all considerations of interest, is some pledge for grateful 
 and benevolent returns. Ingratitude is a common topic 
 of declamation against human nature; and it must be 
 
Hamilton 0)] RESTRAINTS ON MEMBERS. 379 
 
 confessed that instances of it are but too frequent and 
 flagrant, both in public and in private life. But the 
 universal and extreme indignation which it inspires is 
 itself a proof of the energy and prevalence of the con- 
 trary 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. What- 
 ever hopes or projects might be entertained by a few 
 aspiring characters, it must generally happen that a great 
 proportion of the men deriving their advancement from 
 their influence with the people would have more to hope 
 from a preservation of the favor than from innovations 
 in the government subversive of the authority of the 
 people. 
 
 All these securities, however, would be found very 
 insufficient without the restraint of frequent elections. 
 Hence, in the fourth place, the House of Representatives 
 is so constituted as to support in the members an habitual 
 recollection of their dependence on the people. Before 
 the sentiments impressed on their minds by the mode of 
 their elevation can be effaced by the exercise of power, 
 they will be compelled to anticipate the moment when 
 their power is to cease, when their exercise of it is to be 
 reviewed, and when they must descend to the level from 
 they were raised; there forever to remain unless a faith- 
 ful discharge of their trust shall have established their 
 title to a renewal of it. 
 
 I will add, as a fifth circumstance in the situation of 
 the House of Representatives, restraining them from 
 oppressive measures, that they can make no law which 
 will not have its full operation on themselves and their 
 friends, as well as on the great mass of the society. 
 This has always been deemed one of the strongest bonds 
 by which human policy can connect the rulers and the 
 people together. It creates between them that com- 
 munion of interests and sympathy of sentiments of which 
 
380 RELA TIONS TO CONSTITUENTS. tNo. 87 t56) 
 
 few governments have furnished examples, but with- 
 out which every government degenerates into tyranny. 
 If it be asked what is to restrain the House of Repre- 
 sentatives 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 anything 
 but liberty. 
 
 Such will be the relation between the House of Repre- 
 sentatives and their constituents. Duty, gratitude, 
 interest, ambition itself, are the cords 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 insuflScient to control the caprice and wickedness of 
 man. But are they not all that government will admit 
 and that human prudence can devise? Are they not the 
 genuine and the characteristic means by which republi- 
 can government provides for the liberty and happiness 
 of the people? Are they not the identical means on 
 which every State government in the Union relies for the 
 attainment of these important ends? What, then, are we 
 to understand by the objection which this paper has 
 combated? What are we to say to the men who profess 
 the most flaming zeal for republican government, yet 
 boldly impeach the fundamental principle of it; who 
 pretend to be champions for the right and the capacity 
 of the people to choose their own rulers, yet maintain 
 that they will prefer those only who will immediately and 
 infallibly betray the trust committed to them? 
 
 Were the objection to be read by one who had not seen 
 the mode prescribed by the Constitution for the choice 
 of representatives, he could suppose nothing less than 
 that some unreasonable qualification of property was 
 
Hamilton 0)] WISE CHOICE PROBABLE. 381 
 
 annexed to the right of suffrage; or that the right of 
 eligibility was limited to persons of particular families or 
 fortunes; or at least that the mode prescribed by the 
 State constitutions was, in some respect or other, very 
 grossly departed from. We have seen how far such a 
 supposition would err, as to the two first points. Nor 
 would it, in fact, be less erroneous as to the last. The 
 only difference discoverable between the two cases is 
 that each representative of the United States will be 
 elected by five or six thousand citizens; whilst, in the 
 individual States, the election of a representative is left 
 to about as many hundreds. Will it be pretended that 
 this difference is sufficient to justify an attachment to the 
 State governments, and an abhorrence to the federal 
 government? If this be the point on which the objec- 
 tion turns, it deserves to be examined. 
 
 Is it supported by reason 2 This cannot be said with- 
 out 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. 
 Reasofi, on the contrary, assures us that as in so great 
 a number a fit representative would be most likely to be 
 found, so the choice would be less likely to be diverted 
 from him by the intrigues of the ambitious or the bribes 
 of the rich. 
 
 Is the consequence from this doctrine admissible? If we 
 say that five or six hundred citizens are as many as can 
 jointly exercise their right of suffrage, must we not 
 deprive the people of the immediate choice of their pub- 
 he servants, in every instance where the administration 
 of the government does not require as many of them as 
 will amount to one for that number of citizens? 
 
 Is the doctrine warranted hy facts? It was shown in the last 
 paper that the real representation in the British House of Com- 
 mons 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 hun- 
 dred pounds sterling per year ; nor of a city or borough, unless he 
 
382 STATE ELECTORAL DISTRICTS. LNo. S7 (66) 
 
 possess a like estate of half that annual value. To this qualifica- 
 tion 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 present rate of 
 money. Notwithstanding these unfavorable circumstances, and 
 notwithstanding some very unequal laws in the British code, it 
 cannot be said that the representatives of the nation have elevated 
 the few on the ruins of the many. 
 
 But we need not resort to foreign experience on this subject. 
 Our own is explicit and decisive. The districts in New Hampshire 
 in which the senators are chosen immediately by the people are 
 nearly as large as will be necessary for her representatives in the 
 Congress. Those of Massachusetts are larger than will be neces- 
 sary for that purpose ; and those of New York still more so. In 
 the last State the members of Assembly for the cities and counties 
 of New York and Albany are elected by very nearly as many voters 
 as will be entitled to a representative in the Congress, calculating 
 on the number of sixty-five representatives only. It makes no dif- 
 ference 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, how- 
 ever, but one county, in which every elector votes for each of its 
 representatives in the State legislature. And what may appear to 
 be still more directly to our purpose, the whole city actually elects 
 a single member for the executive council. This is the case in all 
 the other counties of the State. 
 
 Are not these facts the most satisfactory proofs of the fallacy 
 which has been employed against the branch of the federal gov- 
 ernment 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 ? 
 
HamiltonCD] PUTURE INCREASE OF HOUSE. 383 
 
 But there are cases of a stronger complexion than any which I 
 have yet quoted. One branch of the legislature of Connecticut is 
 so constituted that each member of it is elected by the whole State. 
 So is the governor of that State, of Massachusetts, and of this 
 State, and the president of New Hampshire. I leave every man to 
 decide whether the result of any one of these experiments can be 
 said to countenance a suspicion that a diffusive mode of choosing 
 representatives of the people tends to elevate traitors and to under- 
 mine the public liberty. Publius. 
 
 No. 58 [57]. (Jndefendent Journal, 'FArnaiy 20, 1^&i.) Hamilton (?) 
 
 FUTURE AUGMENTATION OF THE HOUSE OF 
 REPRESENTATIVES. 
 
 The state constitutions compared on this point with the one proposed 
 — The practice of the state governments — The organization of Congress 
 ■will induce watchfulness — ■ The large states will contrqf the small — Ob- 
 jections that the Senate will prevent augmentation answered — The con- 
 stitutional resource of refusing supplies by the House — Reasons against 
 a numerous House — Objection to a majority being a qutrum^ of which a 
 majority can enact laws^ considered. 
 
 To the People of the State of New York: 
 
 The remaining charge against the House of Represent- 
 atives which I am to examine is grounded on a suppo- 
 sition that the number of members will not be augmented 
 from time to time, as the progress of population may 
 demand. 
 
 It has been admitted that this objection, if well 
 supported, would have great weight. The following 
 observations will show that, like most other objections 
 against the Constitution, it can only proceed from a 
 partial view of the subject, or from a jealousy which dis- 
 colors and disfigures every object which is beheld. 
 
 I. Those who urge the objection seem not to have 
 recollected that the federal Constitution will not suffer 
 by a comparison with the State constitutions, in the 
 security provided for a gradual augmentation of the 
 number of representatives. The number which is to 
 prevail in the first instance is declared to be temporary. 
 
384 LARGE STATMS WAN-T mCREASE. [ifo.68(6'?) 
 
 Its duration is limited to tlie short term of three years. 
 Within every successive term of ten years a census of 
 inhabitants is to be repeated. The unequivocal objects 
 of these regulations are, first, to readjust from time to 
 time the apportionment of representatives to the num- 
 ber of inhabitants, under the single exception that each 
 State shall have one representative at least; secondly, to 
 augment the number of representatives at the same 
 periods, under the sole limitation that the whole number 
 shall not exceed one for every thirty thousand inhab- 
 itants. If we review the constitutions of the several 
 States, we shall find that some of them contain no 
 determinate regulations on this subject, that others 
 correspond pretty much on this point with the federal 
 Constitution, and that the most effectual security in any 
 of them is resolvable into a mere directory provision. 
 
 2. As far as experience has taken place on this subject, 
 a gradual increase of representatives under the State 
 constitutions has at least kept pace with that of the con- 
 stituents, and* it appears that the former have been as 
 ready to concur in such measures as the latter have been 
 to call for them. 
 
 3. There is a peculiarity in the federal Constitution 
 which insures a watchful attention in a majority both of 
 the people and of their representatives to a constitutional 
 augmentation of the latter. The peculiarity lies in this, 
 that one branch of the legislature is a representation of 
 citizens, the other of the States; in th.e former, conse- 
 quently, 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 advo- 
 cates 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 vote in the House of Representa- 
 tives. Should the representatives or people, therefore, 
 of the smaller States oppose at any time a reasonable 
 addition of members, a coalition of a very few States will 
 
Hamilton (I) ] ADVANTAGE ACCRUING TO HOUSE. 3^5 
 
 be sufficient to overrule the opposition; a coalition which, 
 notwithstanding the rivalship and local prejudices which 
 might prevent it on ordinary occasions, would not fail to 
 take place, when not merely prompted by common inter- 
 est, but justified by equity and the principles of the Con- 
 stitution. 
 
 It may be alleged, perhaps, that the Senate would be 
 prompted by like motives to an adverse coalition; and as 
 their concurrence would be indispensable, the just and 
 constitutional views of the other branch might be de- 
 feated. This is the difficulty which has probably created 
 the most serious apprehensions in the jealous friends of 
 a numerous representation. Fortunately it is among the 
 difficulties which, existing only in appearance, vanish on 
 a close and accurate inspection. The following reflec- 
 tions 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 speak- 
 ing the known and determined sense of a majority of the 
 people, will have no small advantage in a question de- 
 pending on the comparative firmness of the two houses. 
 
 This advantage must be increased by the consciousness 
 felt by the same side of being supported in its demands 
 by right, by reason, and by the Constitution; and the 
 consciousness, on the opposite side, of contending against 
 the force of all these solemn considerations. 
 
 It is farther to be considered that, in the gradation be- 
 tween the smallest and largest States, there are several 
 which, though most likely in general to arrange them- 
 selves among the former, are too little removed in extent 
 and population from the latter to second an opposition 
 to their just and legitimate pretensions. Hence it is by 
 no means certain that a majority of votes, even in the 
 Senate, would be unfriendly to proper augmentations in 
 the number of representatives. 
 
386 POWER OF SMALL STATES. [No. 88 (57) 
 
 It will not be looking too far to add that the senators 
 from all the new States may be gained over to the just 
 views of the House of Representatives by an expedient 
 too obvious to be overlooked. As these States will, for 
 a great length of time, advance in population with pecul- 
 iar rapidity, they will be interested in frequent reap- 
 portionments of the representatives to the number of 
 inhabitants. The large States, therefore, who will pre- 
 vail in the House of Representatives, will have nothing 
 to do but to make reapportionments and augmentations, 
 mutually conditions of each other; and the senators 
 from all the most growing States will be bound to con- 
 tend for the latter by the interest which their States will 
 feel in the former. 
 
 These considerations seem to afford ample security on 
 this subject, and ought alone to satisfy all the doubts and 
 fears which have been indulged with regard to it. Ad- 
 mitting, however, that they should all be insufficient to 
 subdue the unjust policy of the smaller States, or their 
 predominant influence in the councils of the Senate, a 
 constitutional and infallible resource still remains with 
 the larger States, by which they will be able at all 
 times to accomplish their just purposes. The House of 
 Representatives cannot only refuse, but they alone can 
 propose, the supplies requisite for the support of govern- 
 ment' They, in a word, hold the purse — that powerful 
 
 ' To examine at length the points on which the Senate and House have 
 disagreed would be useless. But a few of the questions may be briefly 
 noticed, that some idea may be given of the actual value of the Senate, 
 both as a check and as a clog to the more popular action of the House. 
 In 1794 the House attempted to prohibit trade with England, but the 
 resolution was negatived by the Senate. The latter ratified the Jay 
 treaty, which the former hotly opposed. In i8ig the House voted for 
 the amendment admitting Missouri as a free state, and the Senate re- 
 jected it ; a very similar action occurring in 1820. In the same year 
 (1819) the former passed a protective tariff, which was negatived by the 
 latter, and in 1826 the Senate defeated a bill of even greater protective 
 tendency. In 1837 the Senate ' ' recognized " the independence of Texas, 
 but the House refused to concur. Opposite action was taken by the two 
 bodies on the bill for an Independent Treasury. The battle over the 
 Wilmot proviso, and its prototypes, was several times dodged by the 
 Senate, but that body was unfavorable to the amendment. The Senate 
 surrendered to the House in the bill organizing the territories of New 
 
BamiltonC?)] HOUSE AND SENATE. 3^7 
 
 instrument by which we behold, in the history of the 
 British Constitution, an infant and humble representa- 
 tion of the people gradually enlarging the sphere of its 
 activity and importance, and finally reducing, as far as 
 it seems to have wished, all the overgrown prerogatives 
 of the other branches of the government. This power 
 over the purse may, in fact, be regarded as the most 
 complete and effectual weapon with which any constitu- 
 tion can arm the immediate representatives of the people, 
 for obtaining a redress of every grievance, and for carry- 
 ing into effect every just and salutary measure. 
 
 But will not the House of Representatives be as much 
 interested as the Senate in maintaining the government 
 in its proper functions, and will they not therefore be 
 unwilling to stake its existence or its reputation on the 
 pliancy of the Senate? Or, if such a trial of firmness be- 
 tween the two branches were hazarded, would not the 
 one be as likely first to yield as the other? These ques- 
 tions will create no difficulty with those who reflect that 
 in all cases the smaller the number, and the more perma- 
 
 Mexico and California in 1848. The struggle over the Kansas-Nebraska 
 difficulties was long and the disagreements frequent; the Senate being 
 consistently favorable to the extension of, or non-interference vifith 
 slavery, and the House fluctuating in its attitude. In 1863 the Senate 
 passed a constitutional amendment abolishing slavery, but it failed to get 
 the necessary vote in the House. The most recent disagreements of 
 moment have been on the so-called " force bill," and on the silver pur- 
 chase lawf, in both of which the Senate has shown itself a conservative 
 force, but one ultimately responsive to public opinion. 
 
 " This much, however, may be claimed for it, that it has been, and is, 
 ■ on the whole, a steadying and moderating power. One cannot say, in 
 the language of European politics, that it has represented aristocratic 
 principles, or anti-popular principles, or even conservative principles. 
 Each of the great historic parties has in turn commanded a majority in 
 it, and the difference between their strength has during the last decade 
 been but slight. On none of the great issues that have divided the nation 
 has the Senate been, for any long period, decidedly opposed to the other 
 House of Congress. It showed no more capacity than the House for 
 grappling with the problems of slavery extension. It was scarcely less 
 ready than the House to strain the Constitution by supporting Lincoln in 
 the exercise of the so-called war powers, or subsequently by cutting down 
 presidential authority in the struggle between Congress and Andrew John- 
 son. All the fluctuations of public opinion tell upon it, nor does it ven- 
 ture, any more than the House, to confront a popular impulse, because 
 it is, equally with the House, subject to the control of the great 
 
388 RESISTANT FORCE OF HOUSE. [No. 58 (67) 
 
 nent and conspicuous the station, of men in power, the 
 stronger must be the interest which they will individually 
 feel in whatever concerns the government. Those who 
 represent the dignity of their country in the eyes of other 
 nations will be particularly sensible to every prospect of 
 public danger or of dishonorable stagnation in public 
 affairs. To those causes we are to ascribe the continual 
 triumph of the British House of Commons over the other 
 branches of the government, whenever the engine of a 
 money bill has been employed. An absolute inflexibility 
 on the side of the latter, although it could not have 
 failed to involve every department of the state in the 
 general confusion, has neither been apprehended nor ex- 
 perienced. The utmost degree of firmness that can be 
 displayed by the federal Senate or President will not be 
 more than equal to a resistance in which they will be sup- 
 ported by constitutional and patriotic principles. 
 
 In this review of the constitution of the House of 
 Representatives, I have passed over the circumstances of 
 
 parties, which seek to use while they obey the dominant sentiment of 
 the hour. 
 
 " But the fluctuations of opinion tell on it less energetically than on the 
 House of Representatives. They reach it slowly and gradually, owing 
 to the system which renews it by one-third every second year, so that it 
 sometimes happens that before the tide has risen to the top of the flood 
 in the Senate it has already begun to ebb in the country. The Senate 
 has been a stouter bulwark against agitation, not merely because a 
 majority of the senators have always four years of membership before 
 them, within which period public feeling may change, but also because 
 the senators have been individually stronger men than the representatives. 
 They are less democratic, not in opinion, but in temper, because they 
 have more self-confidence, because they have more to lose, because ex- 
 perience has taught them how fleeting a thing popjilar sentiment is, and 
 how useful a thing continuity in policy is. The Senate has therefore 
 usually kept its head better than the House of Representatives. It has 
 expressed more adequately the judgment, as contrasted with the emotion, 
 of the nation. In this sense it does constitute a ' check and balance ' in 
 the Federal government. Of the three great functions which the Fathers 
 of the Constitution meant it to perform, the first, that of securing the 
 rights of the smaller States, is no longer important, because the extent of 
 State rights has been now well settled ; while the second, that of advis- 
 ing or controlling the Executive in appointments as well as in treaties, 
 has given rise to evils almost commensurate with its benefits. But the 
 third duty is still well discharged, for ' the propensity of a single and 
 numerous assembly to yield to the impulse of sudden and violent pas- 
 sions ' is restrained." — Bryce's " American Commonwealth." — EDITOR, 
 
Hamilton C?) ] PO WER OF FE W IM BIG ASSEMBLIES. 389 
 
 economy, which, in the present state of affairs, might 
 have had some effect in lessening the temporary number 
 of representatives, and a disregard of which would prob- 
 ably have been as rich a theme of declamation against 
 the Constitution as has been shown by the smallness of 
 the number proposed. I omit also any remarks on the 
 difficulty which might be found, under present circum- 
 stances, in engaging in the federal service a large number 
 of such characters as the people will probably elect. 
 One observation, however, I must be permitted to add on 
 this subject as claiming, in my judgment, a very serious 
 attention. It is, that in all legislative assemblies the 
 greater the number composing them may be, the fewer 
 will be the men who will in fact direct their proceedings. 
 gee In the first place, the more numerous an 
 
 No. 53. assembly may be, of whatever characters 
 
 composed, the greater is known to be the ascendency of 
 passion over reason. In the next place, the larger the 
 number, the greater will be the proportion of members 
 of limited information and of weak capacities. Now, it 
 is precisely on characters of this description that the elo- 
 quence and address of the few are known to act with all 
 their force. In the ancient republics, where the whole 
 body of the people assembled in person, a single orator, 
 or an artful statesman, was generally seen to rule with as 
 complete a sway as if a scepter had been placed in his 
 single hand. On the same principle, the more multitu- 
 dinous a representative assembly may be rendered, the 
 more it will partake of the infirmities incident to collect- 
 ive meetings of the people. Ignorance will be the dupe 
 of cunning, and passion the slave of sophistry and dec- 
 lamation. The people can never err more than in sup- 
 posing that by multiplying their representatives beyond 
 a certain limit, they strengthen the barrier against the 
 government of a few. Experience will forever admonish 
 them that, on the contrary, after securing a sufficient tium- 
 ber for the purposes of safety, of local information, and of 
 diffusive sympathy with the whole society, they will counter- 
 act their own views by every addition to their represent- 
 
39<^ MAJORITIES AIVD QUORUMS. [No. 88 (Sft 
 
 atives. The countenance of the government may become 
 more democratic, but the soul that animates it will be 
 more oligarchic. The machine will be enlarged, but the 
 fewer, and often the more secret, will be the springs by 
 which its motions are directed. 
 
 As connected with the objection against the number 
 of representatives, may properly be here noticed that 
 which has been suggested against the number made 
 competent for legislative business. It has been 
 said that more than a majority ought to have been 
 required for a quorum; and in particular cases, if not 
 in all, more than a majority of a quorum for a deci- 
 sion. That some advantages might have resulted 
 from such a precaution cannot be denied. It might 
 have been an additional shield to some particular 
 interests, and another obstacle generally to hasty and 
 partial measures. But these considerations are out- 
 weighed by the inconveniences in the opposite scale. In 
 all cases where justice or the general good might require 
 new laws to be passed, or active measures to be pursued, 
 the fundamental principle of free government would be 
 reversed. It would be no longer the majority that would 
 rule: the power would be transferred to the minority.' 
 Were the defensive privilege limited to particular cases, 
 an interested minority might take advantage of it to 
 screen themselves from equitable sacrifices to the general 
 weal, or, in particular emergencies, to extort unreason- 
 able indulgences. Lastly, it would facilitate and foster 
 
 ' This had been successfully accomplished in 1776 in the Assembly of 
 Pennsylvania, where a minority of the representatives had, by with- 
 drawing, destroyed a quorum, and thus prevented all legislation. The 
 same measure was attempted in 1787 by the minority of the same Assem- 
 bly, to prevent the calling of a convention to consider the federal consti- 
 tution, but had been successfully defeated through the agency of a 
 Philadelphia mob, which captured some of the seceders and brought 
 them by force to the Assembly, where they were counted to make a 
 quorum, and the act passed. Speaker Reed's long contest with the 
 Democrats of the House of Representatives, when they refused to answer 
 the roll-call in order to block alllegislation by a nominal lack of quorum, 
 and his refusal to admit their contention, is the most recent attempt of 
 the minority to prevent Congress frota performing its duties, by laches 
 of its own members. — Editor. 
 
Hamilton] REGULATION OF ELECTIONS. 391 
 
 the baneful practice of secessions; a practice which has 
 shown itself even in States where a majority only is 
 required; a practice subversive of all the principles of 
 order and regular government; a practice which leads 
 more directly to public convulsions and the ruin of 
 popular governments than any other which has yet 
 been displayed among us. Publius. 
 
 No. 59 [58]. (•'V*™ yor/c Packet, February 22, 1778.) Hamilton. 
 
 THE NATIONAL REGULATION OF ELECTIONS. 
 
 Every government must have the means of self-preservation — Different 
 depositaries of this power considered — Exact character and extent of this 
 power — If this power be not given, the federal government will be at the 
 mercy of the state governments — The right of self-preservation in the 
 state governments unimpaired— Objection that the power of the states in 
 the election of senators is equally dangerous, considered — Reasons for this 
 retention of power — Objection that the interests of each state will be a suffi- 
 cient security against the abuse of the power to control the election of 
 members by the state governments, considered. 
 
 To the People of the State of New York: 
 
 The natural order of the subject leads us to consider, 
 in this place, that provision of the Constitution which 
 authorizes the national legislature to regulate, in the last 
 resort, the election of its own members. 
 
 It is in these words: " The times, places, and manner of 
 holding elections for senators and representatives shall 
 '^be prescribed in each State by the legislature thereof; 
 but the Congress may, at any time, by law, make or alter 
 such regulations, except as to the places of choosing sena- 
 tors."* This provision has not only been declaimed 
 against by those who condemn the Constitution in the 
 gross; but it has been censured by those who have 
 objected with less latitude and greater moderation; and, 
 in one instance, it has been thought exceptionable by a 
 gentleman who has declared himself the advocate of 
 every other part of the system. 
 
 *ist clause, 4th section, of the 1st article. — PuBLins. 
 
392 FEDERAL DISCRETION PROPER. [No. 69 (68) 
 
 I am greatly mistaken, notwithstanding, if there be 
 any article in the whole plan more completely defensible 
 than this. Its propriety rests upon the evidence of this 
 plain proposition, that every government ought to contain in 
 itself the means of its own preservation. Every just rea- 
 soner will, at first sight, approve an adherence to this 
 rule, in the work of the convention; and will disapprove 
 every deviation from it which may not appear to have 
 been dictated by the necessity of incorporating into the 
 work some particular ingredient with which a rigid con- 
 formity to the rule was incompatible. Even in this case, 
 though he may acquiesce in the necessity, yet he will not 
 cease to regard and to regret a departure from so funda- 
 mental a principle as a portion of imperfection in the 
 system which may prove the seed of future weakness, 
 and perhaps anarchy. 
 
 It will not be alleged that an election la^ could have 
 been framed and inserted in the Constitution which 
 would have been always applicable to every probable 
 change in the situation of the country; and it will, there- 
 fore, not be denied that a discretionary power ove.' 
 elections ought to exist somewhere. It will, I presume, 
 be as readily conceded that there were only three ways 
 in which this power could have been reasonably modified 
 and disposed: that it must either have been lodged 
 wholly in the national legislature, or wholly in the State 
 legislatures, or primarily in the latter and ultimately in 
 the former. The last mode has, with reason, been pre- 
 ferred by the convention. They have submitted the 
 regulation of elections for the federal government, in the 
 first instance, to the local administrations; which, in 
 ordinary cases, and when no improper views prevail, may 
 be both more convenient and more satisfactory; but 
 they have reserved to the national authority a right to 
 interpose, whenever extraordinary circumstances might 
 render that interposition necessary to its safety. 
 
 Nothing can be more evident than that an exclusive 
 power of regulating elections for the national govern- 
 ment, in the hands of the State legislatures, would leave 
 
Hamilton] STATE ELECTIONS INDEPENDENT. 393 
 
 the existence of the Union entirely at their mercy. 
 They could at any moment annihilate it by neglecting to 
 provide for the choice of persons to administer its affairs. 
 It is to little purpose to say that a neglect or omission 
 of this kind would not be likely to take place. The 
 constitutional possibility of the thing, without an equiva- 
 lent for the risk, is an unanswerable objection. Nor has 
 any satisfactory reason been yet assigned for incurring 
 that risk. The extravagant surmises of a distempered 
 jealousy can never be dignified with that character. If 
 we are in a humor to presume abuses of power, it is as 
 fair to presume them on the part of the State govern- 
 ments as on the part of the general government. And 
 as it is more consonant to the rules of a just theory to 
 trust the Union with the care of its own existence than 
 to transfer that care to any other hands, if abuses of 
 power are to be hazarded on the one side or on the 
 other, it is more rational to hazard them where the power 
 would naturally be placed than where it would unnatu- 
 rally be placed. 
 
 Suppose an article had been introduced into the Con- 
 stitution empowering the United States to regulate the 
 elections for the particular States, would any man have 
 hesitated to condemn it, both as an unwarrantable trans- 
 position of power, and as a premeditated engine for the 
 destruction of the State governments? The violation of 
 principle, in this case, would have required no comment; 
 and, to an unbiased observer, it will not be less apparent 
 in the project of subjecting the existence of the national 
 government, in a similar respect, to the pleasure of 
 the State governments. An impartial view of the mat- 
 ter cannot fail to result in a conviction that each, as 
 far as possible, ought to depend on itself for its own 
 preservation. 
 
 As an objection to this position it may be remarked 
 that the constitution of the national Senate would involve, 
 in its full extent, the danger which it is suggested might 
 flow from an exclusive power in the State legislatures to 
 regulate the federal elections. It may be alleged that, 
 
394 POWER OF STATES OVER SENATE. [No, 89(88) 
 
 by declining ttie appointment of senators, they might at 
 any time give a fatal blow to the Union; and from this it 
 may be inferred that, as its existence would be thus ren- 
 dered dependent upon them in so essential a point, there 
 can be no objection to intrusting them with it in the par- 
 ticular case under consideration. The interest of each 
 State, it may be added, to maintain its representation 
 in the national councils, would be a complete security 
 against an abuse of the trust. 
 
 This argument, though specious, will not, upon exam- 
 ination, be found solid. It is certainly true that the 
 State legislatures, by forbearing the appointment of 
 senators, may destroy the national government. But it 
 will not follow that, because they have the power to'do 
 this in one instance, they ought to have it in every other. 
 There are cases in which the pernicious tendency of such 
 a power may be far more decisive, without any, motive 
 equally cogent with that which must have regulated the 
 conduct of the convention in respect to the formation of 
 the Senate, to recommend their admission into the system. 
 So far as that construction may expose the Union to the 
 possibility of injury from the State legislatures, it is an evil, 
 but it is an evil which could not have been avoided without 
 excluding the States, in their political capacities, wholly 
 from a place in the organization of the national govern- 
 ment. If this had been done, it would doubtless have 
 been interpreted into an entire dereliction of the federal 
 principle; and would certainly have deprived the State 
 governments of that absolute safeguard which they will 
 enjoy under this provision. But however wise it may 
 have been to have submitted in this instance to an in- 
 convenience for the attainment of a necessary advantage 
 or a greater good, no inference can be drawn from thence 
 to favor an accumulation of the evil, where no necessity 
 urges nor any greater good invites. 
 
 It may be easily discerned also that the national gov- 
 ernment would run a much greater risk from a power 
 in the State legislatures over the elections of its House 
 of Representatives, than from their power of appointing 
 
Hamilton] MJVRy TO SENATE UNLIKELY. 395 
 
 the members of its Senate. The senators are to be 
 chosen for the period of six years; there is to be a rota- 
 tion, by which the seats of a third part of them are to be 
 vacated and replenished every two years; and no State 
 is to be entitled to more than two senators; a quorum of 
 the body is to consist of sixteen members. The joint 
 result of these circumstances would be that a temporary 
 combination of a few States to intermit the appointment 
 of senators, could neither annul the existence nor impair 
 the activity of the body; and it is not from a general 
 and permanent combination of the States that we can 
 have anything to fear. The first might proceed from 
 sinister designs in the leading members of a few of the 
 State legislatures; the last would suppose a fixed and 
 rooted disaffection in the great body of the people, which 
 will either never exist at all, or will, in all probability, 
 proceed from an experience of the inaptitude of the 
 general government to the advancement of their happi- 
 ness — in which event no good citizen could desire its 
 continuance. 
 
 But with regard to the federal House of Representa- 
 tives there is intended to be a general election of mem- 
 bers once in two years. If the State legislatures were to 
 be invested with an exclusive power of regulating these 
 elections, every period of making them would be a deli- 
 cate crisis in the national situation, which might issue in 
 a dissolution of the Union, if the leaders of a few of the 
 most important States should have entered into a previous 
 conspiracy to prevent an election. 
 
 I shall not deny that there is a degree of weight in 
 the observation that the interests of each State, to be 
 represented in the federal councils, will be a security 
 See against the abuse of a power over its elections 
 
 No. 1. in the hands of the State legislatures. But 
 
 the security will not be considered as complete, by those 
 who attend to the force of an obvious distinction between 
 the interest of the people in the public felicity and the 
 interest of their local rulers in the power and conse- 
 quence of their offices. The people of America may be 
 
3g6 POSSIBLE WEAPONS AGAINST UNION. [No. 59(58) 
 
 warmly attached to the government of the Union, at 
 times when the particular rulers of particular States, 
 stimulated by the natural rivalship of power, and by the 
 hopes of personal aggrandizement, and supported by a 
 strong faction in each of those States, may be in a very 
 opposite temper. This diversity of sentiment between a 
 majority of the people and the individuals who have the 
 greatest credit in their councils is exemplified in some 
 of the States at the present moment, on the present 
 question. The scheme of separate confederacies, which' 
 will always multiply the chances of ambition, will be a 
 never-failing bait to all such influential characters in the 
 State administrations as are capable of preferring their 
 own emolument and advancement to the public weal. 
 With so effectual a weapon in their hands as the exclusive 
 power of regulating elections for the national govern- 
 ment, a combination of a few such men, in a few of the 
 most considerable States, where the temptation will 
 always be the strongest, might accomplish the destruc- 
 tion of the Union, by seizing the opportunity of some 
 casual dissatisfaction among the people (and which per- 
 haps they may themselves have excited), to discontinue 
 the choice of members for the federal House of Rep- 
 resentatives. It ought never to be forgotten that a 
 ggg firm union of this country under an efficient 
 
 No, 22. government will probably be an increasing 
 
 object of jealousy to more than one nation of Europe; 
 and that enterprises to subvert it will sometimes origi- 
 nate in the intrigues of foreign powers, and will seldom 
 fail to be patronized and abetted by some of them. Its 
 preservation, therefore, ought in no case that can be 
 avoided to be committed to the guardianship of any but 
 those whose situation will uniformly beget an immediate 
 interest in the faithful and vigilant performance of the 
 trust. 
 
 PUBLIUS. 
 
Hamilton] NECESSITY OF NATIONAL CONTROL. 397 
 
 No. 60 [59]. (.Independent Journal, February 23, 1788.) Hamilton. 
 
 NECESSITY OF SUCH NATIONAL CONTROL. 
 
 Consideration of the objection that by this power Congress may promote 
 the election of a favorite class and exclude others — Reasons for dismissing 
 this objection enumerated. 
 
 To the People of the State of New York: 
 
 We have seen that an uncontrollable power over the 
 elections to the federal government could not, without 
 hazard, be committed to the State legislatures. Let us 
 now see what would be the danger on the other side; 
 that is, from confiding the ultimate right of regulating 
 its own elections to the Union itself. It is not pretended 
 that this right would ever be used for the exclusion of 
 any State from its share in the representation. The 
 interest of all would, in this respect at least, be the 
 security of all. But it is alleged that it might be 
 employed in such a manner as to promote the election of 
 some favorite class of men in exclusion of others, by 
 confining the places of election to particular districts, 
 and rendering it impracticable to the citizens at large to 
 partake in the choice. Of all chimerical suppositions 
 this seems to be the most chimerical. On the one hand, 
 no rational calculation of probabilities would lead us to 
 imagine that the disposition which a conduct so violent 
 and extraordinary would imply could ever find its way 
 into the national councils ; and on the other, it may be 
 concluded with certainty that, if so improper a spirit 
 should ever gain admittance into them, it would display 
 itself in a form altogether different and far more decisive. 
 
 The improbability of the a,ttempt may be' satisfactorily 
 inferred from this single reflection that it could never be 
 made without causing an immediate revolt of the great 
 body of the people, headed and directed by the State 
 governments. It is not difficult to conceive that this 
 characteristic right of freedom may, in certain turbulent 
 and factious seasons, be violated, in respect to a particular 
 
398 DIVERSITY OF PARTS OF UNION. [No. 60 (59j 
 
 class of citizens, by a victorious and overbearing major- 
 ity; but that so fundamental a privilege, in a country so 
 situated and enlightened, should be invaded to the prej- 
 udice of the great mass of the people by the deliberate 
 policy of the government, without occasioning a popular 
 revolution, is altogether inconceivable and incredible. 
 
 In addition to this general reflection, there are con- 
 siderations of a more precise nature which forbid all 
 apprehension on the subject. The dissimilarity in the 
 ingredients which will compose the national government, 
 and still more in the manner in which they will be brought 
 into action in its various branches, must form a powerful 
 obstacle to a concert of views in any partial scheme of 
 elections. There is sufficient diversity in the state of 
 property, in the genius, manners, and habits of the 
 people of the different parts of the Union, to occasion a 
 material diversity of disposition in their representatives 
 toward the different ranks and conditions in society. 
 And though an intimate intercourse under the same 
 government will promote a gradual assimilation in some 
 of these respects, yet there are causes, as well physical 
 as moral, which may, in a greater or less degree, per- 
 manently nourish different propensities and inclinations 
 in this respect. But the circumstance which will be likely 
 to have the greatest influence in the matter will be the 
 dissimilar modes of constituting the several component 
 parts of the government. The House of Representatives 
 being to be elected immediately by the people, the Senate 
 by the State legislatures, the President by electors chosen 
 for that purpose by the people, there would be little 
 probability of a common interest to cement these 
 different branches in a predilection for any particular 
 class of electors. 
 
 As to the Senate, it is impossible that any regulation 
 of " time and manner," which is all that is proposed to be 
 submitted to the national government in respect to that 
 body, can affect the spirit whiph will direct the choice of 
 its members. The collective sense of the State legis- 
 latures can never be influenced by extraneous circum- 
 
Hamilton] PARTIALITY IN NATIONAL COUNCILS. 399 
 
 Stances of that sort; a consideration which alone ought 
 to satisfy us that the discrimination apprehended would 
 never be attempted. For what inducement could the 
 Senate have to concur in a preference in which itself 
 would not bp included? Or to what purpose .would it be 
 established in reference to one branch of the legislature, 
 if it could not be extended to the other? The composi- 
 tion of the one would in this case counteract that of the 
 other. And we can never suppose that it would embrace 
 the appointments to the Senate, unless we can at the 
 same time suppose the voluntary co-operation of the State 
 legislatures. If we make the latter supposition, it then 
 becomes immaterial where the power in question is 
 placed— whether in their hands or in those of the Union. 
 
 But what is to be the object of this capricious partiality 
 in the national councils? Is it to be exercised in a discrim- 
 ination between the different departments of industry, 
 or between the different kinds of property, or between 
 the different degrees of property? Will it lean in favor 
 of the landed interest, or the moneyed interest, or the 
 mercantile interest, or the manufacturing interest? Or, 
 to speak in the fashionable language of the adversaries 
 to the Constitution, will it court the elevation of "the 
 wealthy and the well-born," to the exclusion and debase- 
 ment of all the rest of the society? 
 
 If this partiality is to be exerted in favor of those who 
 are concerned in any particular description of industry or 
 property, I presume it will readily be admitted that the 
 competition for it will lie between landed men and mer- 
 chants. And I scruple not to affirm that it is infinitely 
 less likely that either of them should gain an ascendant 
 in the national councils than that the one or the other of 
 them should predominate in all the local councils. The 
 inference will be that a conduct tending to give an undue 
 preference to either is much less to be dreaded from the 
 former than from the latter. 
 
 The several States are in various degrees addicted to 
 agriculture and commerce. In most, if not all of them, 
 agriculture is predominant. In a few of them, however, 
 
400 LANDED INTEREST. [No. 60(59) 
 
 commerce nearly divides its empire, and in most of them 
 has a considerable share of influence. In proportion as 
 either prevails, it will be conveyed into the national 
 representation; and for the very reason that this will be 
 an emanaticjn from a greater variety of interests, and in 
 much more various proportions, than are to be found in 
 any single State, it will be much less apt to espouse either 
 of them with a decided partiality than the representation 
 of any single State. 
 
 In a country consisting chiefly of the cultivators of 
 land, where the rules of an equal representation obtain, 
 the landed interest must, upon the whole, preponderate 
 in the government. As long as this interest prevails in 
 most of the State legislatures, so long it must maintain 
 a correspondent superiority in the national Senate, which 
 will generally be a faithful copy of the majorities of those 
 assemblies. It cannot, therefore, be presumed that a 
 sacrifice of the landed to the mercantile class will ever 
 be a favorite object of this branch of the federal legis- 
 lature. In applying thus particularly to the Senate a 
 general observation suggested by the situation of the 
 country, I am governed by the consideration that the 
 credulous votaries of State power cannot, upon their own 
 principles, suspect that the State legislatures would be 
 warped from their duty by any external influence. But 
 in reality the same situation must have the same effect, 
 in the primitive composition at least of the federal House 
 of Representatives; an improper bias toward the mercan- 
 tile class is as little to be expected from this quarter as 
 from the other. 
 
 In order, perhaps, to give countenance to the objection 
 at any rate, it may be asked, is there not danger of an 
 opposite bias in the national government, which may dis- 
 pose it to endeavor to secure a monopoly of the federal 
 administration to the landed class?' As there is little 
 
 ' This battle between the two interests has been perpetual from the 
 very foundation of the government. Under the Federalist regime, com- 
 merce and manufactures were thought by the landholding class to have 
 been encouraged at their expense, and the triumph of Jefferson was their 
 protest. Under the Democratic party the commercial classes in turn 
 
Hamilton] COMMERCE AS SOURCE OF REVENUE. 4°! 
 
 likelihood that the supposition of such a bias will have 
 any terrors for those who would be immediately injured 
 by it, a labored answer to this question will be dispensed 
 with. It will be sufficient to remark, first, that for the 
 reasons elsewhere assigned, it is less likely that any 
 decided partiality should prevail in the councils of the 
 Union than in those of any of its members. Secondly, 
 that. there would be no temptation to violate the Consti- 
 tution in favor of the landed class, because that class 
 would, in the natural course of things, enjoy as great a 
 preponderancy as itself could desire. And thirdly, that 
 men accustomed to investigate the sources of public 
 prosperity upon a large scale, must be too well convinced 
 of the utility of commerce to be inclined to inflict upon 
 it so deep a wound as would result from the entire 
 exclusion of those who would best understand its interest 
 from a share in the management of them. The impor- 
 tance of commerce, in the view of revenue alone, must 
 effectually guard it against the enmity of a body which 
 would be continually importuned in its favor by the 
 urgent calls of public necessity. 
 
 I the rather consult brevity in discussing the prob- 
 ability of a preference founded upon a discrimination 
 between the different kinds of industry and property, 
 because, as far as I understand the meaning of the object- 
 ors, they contemplate a discrimination of another kind. 
 They appear to have in view, as the objects of the prefer- 
 ence with which they endeavor to alarm us, those whom 
 they designate by the description of "the wealthy and 
 
 asserted that they were sacrificed to the landed interest by tlie embar- 
 go and war of 1812. Under the tariff of 1824 once more the land- 
 holders felt that they were injured, an injury which finally found 
 extreme expression in attempted nullification. The slavery contest and 
 Rebellion submerged the differences, but with the passing of the issues 
 which they involved, the battle has been renewed in the tariff struggle of 
 1888-1897, and, to a certain extent, in the fiat-money, silver, and income- 
 tax issues. A far severer contest between the two interests has taken 
 place in Europe, with no material loss to the landholders in France 
 and Germany ; but in Great Britain the growth of the commercial classes 
 has been such as to secure to them an overbearing influence in legisla- 
 tion, which has resulted in the entire sacrifice of the landed classes, 
 — Editor. 
 
402 WEALTHY CLASSES DIFFUSED. [No. 60 (59) 
 
 the well-born." These, it seems, are to be exalted to an 
 odious pre-eminence over the rest of their fellow-citizens. 
 At one time, however, their elevation is to be a necessary 
 consequence of the smallness of the representative body; 
 at another time it is to be effected by depriving the 
 people at large of the opportunity of exercising their 
 right of suffrage in the choice of that body. 
 
 But upon what principle is the discrimination of .the 
 places of election to be made, in order to answer the pur- 
 pose of the meditated preference? Are " the wealthy 
 and the well-born," as they are called, confined to partic- 
 ular spots in the several States? Have they, by some 
 miraculous instinct or foresight, set apart in each of 
 them a common place of residence? Are they only to be 
 met with in the towns or cities? Or are they, on the 
 contrary, scattered over the face of the country as 
 avarice or chance may have happened to cast their own 
 lot or that of their predecessors? If the latter is the 
 case (as every intelligent man knows it to be*), is it not 
 evident that the policy of confining the places of election 
 to particular districts would be as subversive of its own 
 aim as it would be exceptionable on every other account? 
 The truth is that there is no method of securing to the 
 rich the preference apprehended, but by prescribing 
 qualifications of property either for those who may elect 
 or be elected. ' But this forms no part of the power to be 
 conferred upon the national government. Its authority 
 would be expressly restricted to the regulation of the 
 times, ^Q places, the manner ai elections. The qualifica- 
 tions of the persons who may choose or be chosen, as has 
 been remarked upon other occasions, are defined and 
 fixed in the Constitution, and are unalterable by the 
 legislature. 
 
 Let it, however, be admitted, for argument sake, that 
 the expedient suggested might be successful ; and let it 
 at the same time be equally taken for granted that all 
 the scruples which a sense of duty or an apprehension of 
 
 * Particularly in the Southern States and in this State. — PuELIUS. 
 
Hamilton] VIOLATION OF ELECTIONS UNLIKELY. 403 
 
 the danger of the experiment might inspire, were over- 
 come in the breasts of the national rulers; still I imagine 
 it will hardly be pretended that they could ever hope to 
 carry such an enterprise into execution without the aid 
 of a military force sufficient to subdue the resistance of 
 the great body of the people. The improbability of the 
 existence of a force equal to that object has been dis- 
 cussed and demonstrated in different parts of these 
 papers; but that the futility of the objection under con- 
 sideration may appear in the strongest light, it shall be 
 conceded for a moment that such a force might exist, 
 and the national government shall be supposed to be in 
 the actual possession of it. What will be the conclu- 
 sion? With a disposition to invade the essential rights 
 of the community, and with the means of gratifying that 
 disposition, is it presumable that the persons who were 
 actuated by it would amuse themselves in the ridiculous 
 task of fabricating election laws for securing a preference 
 to a favorite class of men? Would they not be likely to 
 prefer a conduct better adapted to their own immediate 
 aggrandizement? Would they not rather boldly resolve 
 to perpetuate themselves in office by one decisive act of 
 usurpation than to trust to precarious expedients which, 
 in spite of all the precautions that might accompany 
 them, might terminate in the dismission, disgrace, and 
 ruin of their authors? Would they not fear that citizens, 
 not less tenacious than conscious of their rights, would 
 flock from the remote extremes of their respective States 
 to the places of election, to overthrow their tyrants, and 
 to substitute men who would be disposed to avenge the 
 violated majesty of the people? Publius. 
 
404 PLACE OF ELECTIONS. [No. 61 (60) 
 
 No. 6l [6o]. (Ni-w York Packei,Yeoxv.3ri ^6, 1^^%.^) Hamilton. 
 
 ADVANTAGE OF POWER IN SECURING UNI- 
 FORMITY IN ELECTIONS. 
 
 Objection that there should be a provision that all elections should be 
 held within the counties where the electors live — Siich a provision harm- 
 less and offers no security — This provision compared with those of state 
 constitutions — The probability thai the power of Congress to fix a unifonn 
 day for elections will be very important— The want of any provisions in 
 the constitution fixing such a day considered — Concluding remarks on 
 the general subject. 
 
 To the People of the State of New York: 
 
 The more candid opposers of the provision respecting 
 elections contained in the plan of the convention, when 
 pressed in argument, will sometimes concede the propriety 
 of that provision; with this qualification, however, that 
 it ought to have been accompanied with a declaration 
 that all elections should be had in the counties where 
 the electors resided. This, say they, was a necessary 
 precaution against an abuse of the power. A declaration 
 of this nature would certainly have been harmless; so 
 far as it would have had the effect of quieting appre- 
 hensions, it might not have been undesirable. But it 
 would, in fact, have afforded little or no additional secur- 
 ity against the danger apprehended; and the want of it 
 will never be considered by an impartial and judicious 
 examiner, as a serious, still less as an insuperable objec- 
 tion to the plan. The different views taken of the subject 
 in the two preceding papers must be sufficient to satisfy 
 all dispassionate and discerning men that, if the public 
 liberty should ever be the victim of the ambition of the 
 national rulers, the power under examination, at least, 
 will be guiltless of the sacrifice. 
 
 If those who are inclined to consult their jealousy only would 
 exercise it in a careful inspection of the several State constitutions, 
 they would find little less room for disquietude and alarm from 
 the latitude which most of them allow in respect to elections than 
 from the latitude which is proposed to be allowed to the national 
 government in the same respect. A review of their situation, in 
 
Hamilton] ELECTIONS IN NEW YORK STATE. 40S 
 
 this particular, would tend greatly to I'emove any ill impressions 
 wiiich may remain in regard to this matter. But as that view 
 would lead into long and tedious details, I shall content myself 
 with the single example of the State in which I write. The con- 
 stitution of New York makes no other provision for locality of 
 elections than that the members of the Assembly shall be elected 
 in the counties; those of the Senate, in the great districts into 
 wliich the State is or may be divided : these at present are four in 
 number, and comprehend each from two to six counties. It may 
 readily be perceived that it would not be more difficult to the 
 legislature of New York to defeat the suffrages of the citizens of 
 New York, by confining elections to particular places, than for 
 the legislature of the United States to defeat the suffrages of the 
 citizens of the Union by the like expedient. Suppose, for instance, 
 the city of Albany was to be appointed the sole place of election 
 for the country and district of which it is a part, would not the 
 inhabitants of that city speedily become the only electors of the 
 members both of the Senate and Assembly for that county and 
 district .' Can we imagine that the electors who reside in the 
 remote subdivisions of the counties of Albany, Saratoga, Cam- 
 bridge, etc., or in any part of the county of Montgomery, would 
 take the trouble to come to the city of Albany, to give their votes 
 for members of the Assembly or Senate, sooner than they would 
 repair to the city of New York, to participate in the choice of the 
 members of the federal House of Representatives ? The alarming 
 indifference discoverable in the exercise of so invaluable a privi- 
 lege under the existing laws, which afford every facility to it, fur- 
 nishes a ready answer to this question. And, abstracted from any 
 experience on the subject, we can be at no loss to determine that, 
 when the place of election is at an inconvenient distance from the 
 elector, the effect upon his conduct will be the same whether that 
 distance be twenty miles or twenty thousand miles. Hence it 
 must appear that objections to the particular modification of the 
 federal power of regulating elections will, in substance, apply with 
 equal force to the modification of the like power in the constitution 
 of this State ; and for this reason it will be impossible to acquit 
 the one and to condemn the other. A similar comparison would 
 lead to the same conclusion in respect to the constitutions of most 
 of the other States. 
 
 If it should be said that defects in the State constitutionafurnish 
 no apology for those which are to be found in the plan proposed, 
 I answer that, as the former have never been thought chargeable 
 with inattention to the security of liberty, where the imputations 
 
4o6 UNIFORMITY IN TIME OF ELECTIONS. [No. 61(60) 
 
 thrown on the latter can be shown to be applicable to them also, 
 the presumption is that they are rather the caviling refinements of 
 a predetermined opposition than the well-founded inferences of a 
 candid research after truth. To those who are disposed to con- 
 sider as innocent omissions in the State constitutions what they 
 regard as unpardonable blemishes in the plan of the convention 
 nothing can be said ; or, at most, they can only be asked to 
 assign some substantial reason why the representatives of the 
 people in a single State should be more impregnable to the lust of 
 power, or other sinister motives, than the representatives of the 
 people of the United States. If they cannot do this, they ought 
 at least to prove to us that it is easier to subvert the liberties 
 of three miUions of people, with the advantage of local govern- 
 ments to head their opposition, than of two hundred thousand 
 people who are destitute of that advantage. And in relation to 
 the point immediately under consideration, they ought to convince 
 us that it is less probable that a predominant faction in a single 
 State should, in order to maintain its superiority, incline to a 
 preference of a particular class of electors than that a similar 
 spirit should take possession of the representatives of thirteen 
 States, Spread over a vast region, and in several respects dis- 
 tinguishable from each other by a diversity of local circumstances, 
 prejudices, and interests. 
 
 Hitherto my observations have only aimed at a vindi- 
 cation of the provision in question on the ground of 
 theoretic propriety, on that of the danger of placing the 
 power elsewhere, and on that of the safety of placing it 
 in the manner proposed. But there remains to be men- 
 tioned a positive advantage which will result from this 
 disposition, and which could not as well have been ob- 
 tained from any other: I allude to the circumstance of 
 uniformity in the time of elections for the federal House 
 of Representatives. It is more than possible that this 
 uniformity may be found by experience to be of great 
 importance to the public welfare, both as a security 
 against the perpetuation of the same spirit in the body, 
 and as a cure for the diseases of faction. If each State 
 may choose its own time of election, it is possible there 
 may be at least as many different periods as there are 
 months in the year. The times of election in the several 
 States, as they are now established for local purposes, 
 
Hamilton] CONVENIENCE OF ELECTIONS. 407 
 
 vary between extremes as wide as March and November. 
 The consequence of this diversity would be that there 
 could never happen a total dissolution or renovation of 
 the body at one time. If an improper spirit of any kind 
 should happen to prevail in it, that spirit would be apt 
 to infuse itself into the new members, as they come for- 
 ward in succession. The mass would be likely to remain 
 nearly the same, assimilating constantly to itself its 
 gradual accretions. There is a contagion in example 
 which few men have sufficient force of mind to resist. I 
 am inclined to think that treble the duration in office, 
 with the condition of a total dissolution of the body at 
 the same time, might be less formidable to liberty than 
 one-third of that duration subject to gradual and suc- 
 cessive alterations. 
 
 Uniformity in the time of elections seems not less 
 requisite for executing the idea of a regular rotation in 
 the Senate, and for conveniently assembling the legis- 
 lature at a stated period in each year. 
 
 It may be asked, Why, then, could not a time have 
 been fixed in the Constitution? As the most zealous 
 adversaries of the plan of the convention in this State 
 are, in general, not less zealous admirers of the constitu- 
 tion of the State, the question may be retorted, and it 
 may be asked, Why was not a time for the like purpose 
 fixed in the constitution of this State? No better answer 
 can be given than that it was a matter which might safely 
 be intrusted to legislative discretion; and that if a time 
 had been appointed, it might, upon experiment, have 
 been found less convenient than some other time. The 
 same answer may be given to the question put on the 
 other side. And it may be added that the supposed 
 danger of a gradual change being merely speculative, it 
 would have been hardly advisable upon that speculation 
 to establish, as a fundamental point, what would deprive 
 several States of the convenience of having the elections 
 for their own governments and for the national govern- 
 ment at the same epochs. Publius. 
 
4o8 QUALIFICATIONS OF SENATORS. [No. 62 C61) 
 
 J 
 
 No. 62 [61]. (Indtpendcnt Journal, February 27, 1788.) Hamilton (?) 
 
 THE CONSTITUTION OF THE SENATE. 
 
 Qualifications of senators — Appointment of senators by state legisla- 
 tures — Equality of representation in senate — Mixed character of federal 
 government requires a mixed representation — Equal representation in 
 senate a recognition of sovereignty in the states — The number of senators 
 and the term for which they are elected — Need of such an upper house 
 as a security against improper legislation — Against the infirmity of 
 faction — Against ignorant legislation — Against mutability in its coun- 
 cils from frequent changes of members — Dangers^ of such mutability 
 enumerated. 
 
 To the People of the State of New York: 
 
 Having examined the constitution of the House of 
 Representatives and answered such pf the objections 
 against it as seemed to merit notice, I enter next on the 
 examination of the Senate. 
 
 The heads into v^rhich this member of the government 
 may be considered are: I. The qualifications of senators; 
 
 II. The appointment of them by the State legislatures; 
 
 III. The equality of representation in the Senate; IV. 
 The number of senators, and the term for which they are 
 to be elected; V. The powers vested in the Senate. 
 
 I. The qualifications proposed for senators, as distin- 
 guished from those of representatives, consist in a more 
 advanced age and a longer period of citizenship. A 
 senator must be thirty years of age at least, as a repre- 
 sentative must be twenty-five. And the former must 
 have been a citizen nine years; as seven years are 
 required for the latter. The propriety of these distinc- 
 tions is explained by the nature of the senatorial trust, 
 which, requiring greater extent of information and 
 stability of character, requires at the same time that the 
 senator should have reached a period of life most likely 
 to supply these advantages; and which, participating 
 immediately in transactions with foreign nations, ought 
 to be exercised by none who are not thoroughly weaned 
 from the prepossessions and habits incident to foreign 
 
Hamilton rt)l APPOrNTMENT BY LEGISLATURES. 4^9 
 
 birth and education. The term of nine years appears to 
 be a prudent mediocrity between a total exclusion of 
 adopted citizens, whose merits and talents may claim a 
 share in the public confidence, and an indiscriminate and 
 hasty admission of them, which might create a channel 
 for foreign influence on the national councils. 
 
 II. It is equally unnecessary to dilate on the appoint- 
 ment of senators by the State legislatures. Among the 
 various modes which might have been devised for con- 
 stituting this branch of the government, that which has 
 been proposed by the convention is probably the most 
 congenial with the public opinion.' It is recommended 
 by the double advantage of favoring a select appointment, 
 and of giving to the State governments such an agency 
 in the formation of the federal government as must 
 secure the authority of the former and may form a con- 
 venient link between the two systems. 
 
 III. The equality of representation in the Senate is 
 another point which, being evidently the result of com- 
 promise between the opposite pretensions of the large 
 and the smaller States, does not call for much discussion. 
 If indeed it be right that, among a people thoroughly 
 incorporated into one nation, every district ought to 
 
 ' After the test of one hundred years, it is possible to acknowledge 
 that the appointment of senators by the state legislatures has by no 
 means secured to the nation so satisfactory a result as would have been 
 obtained by popular election. Originally framed for this very pur- 
 pose of securing a " select appointment" it has, in its results, ended in 
 being the means by which vested interests most easily obtain an influence 
 in our government. At this moment certain senators are understood to 
 represent sugar, or silver, or steel, or railroads, and this is due, as baldly 
 expressed in a remark credited to Jay Gould, to the fact that it is 
 cheaper to buy a legislature than it is to buy a people, and therefore this 
 branch of our government is at once the cheapest and easiest means by 
 which special interests may secure representation. But another, and even 
 greater evil, not conceived by the framers, has arisen from the part which 
 the election of a senator plays in state politics, and the influence which it 
 has on legislative proceedings. Very often the state legislature is kept 
 longer in session to elect a senator tlian to pass current legislation, and 
 not infrequently, where state issues have had their proper^ influence, the 
 politics of the senator are the exact opposite of the views, of the state as 
 shown by the vote for President or for representatives. The defects of 
 the system are well indicated in Haynes's " Popular Election of United 
 States Senators," 1893.— Editor. 
 
41o EQUAL REPRESENTA TION IN SENA TE. [No. 62 (61) 
 
 have a proportional share in the government, and that 
 among independent and sovereign States, bound together 
 by a simple league, the parties, however unequal in size, 
 ought to have an equal share in the common councils, it 
 does not appear to be without some reason that in a com- 
 pound republic, partaking both of the national and 
 federal character, the government ought to be founded 
 on a mixture of the principles of proportional and equal 
 representation. But it is superfluous to try, by the 
 standard of theory, a part of the Constitution which is 
 allowed on all hands to be the result, not of theory, but 
 "of a spirit of amity, and that mutual deference and con- 
 cession which the peculiarity of our political situation 
 rendered indispensable." A common government, with 
 powers equal to its objects, is called for by the voice, and 
 still more loudly by the political situation, of America. 
 A government founded on principles more consonant to 
 the wishes of the larger States is not likely to be ob- 
 tained from the smaller States. The only option, then, 
 for the former, lies between the proposed government and 
 a government still more objectionable. Under this alter- 
 native, the advice of prudence must be to embrace the 
 lesser evil; and, instead of indulging a fruitless antici- 
 pation of the possible mischiefs which may ensue, to 
 contemplate rather the advantageous consequences which 
 may qualify the sacrifice. 
 
 In this spirit it may be remarked that the equal vote 
 allowed to each State is at once a constitutional recogni- 
 ses tion of the portion of sovereignty remaining 
 Ko. 37. in the individual States, and an instrument for 
 preserving that residuary sovereignty." So far the 
 
 ' The results, in spite of the inequality of representation, have in the 
 main been admirable. So far from developing coalitions of small 
 states designed to defeat the will of the majority, the Senate has rarely 
 shown other lines of division than those which have also divided the 
 House of Representatives, and though it has occasionally opposed the 
 views of that more popular body, the opposition has never been so per- 
 sistent as not to produce ultimate agreement. Created to prevent undue 
 variability and haste in the lower house, and to check any attempted 
 expansion of the executive power, it has served the purposes for which it 
 was designed with admirable consistence. As a legislative or initiative 
 
Hamilton (?) ] CHECK ON LEGISLATION. 411 
 
 equality ought to be no less acceptable to the large than 
 to the small States; since they are not less solicitous to 
 guard, by every possible expedient, against an improper 
 consolidation of the States into one single republic. 
 
 Another advantage accruing from this ingredient in 
 the constitution of the Senate is the additional impedi- 
 ment it must prove against improper acts of legislation. 
 No law or resolution can now be passed without the con- 
 currence, first, of a majority of the people, and then 
 of a majority of the States. It must be acknowledged 
 that this complicated check on legislation may in some 
 instances be injurious as well as beneficial; and that 
 the peculiar defense which it involves in favor of the 
 smaller States would be more rational if any interests 
 common to them, and distinct from those of the 
 other States would otherwise be exposed to peculiar 
 danger. But as the larger States will always be able, by 
 their power over the supplies, to defeat unreasonable 
 exertions of this prerogative of the lesser States, and as 
 the facility and excess of lawmaking seem to be the 
 diseases to which our governments are most liable,' it is 
 
 force it has shown little ability, but as a negative power its influence has 
 been only second to that of the supreme court. At present it is the sub- 
 ject of attack because of its plutocratic tendency, but this was the very 
 hope of the men who framed the provisions that created it, and intro- 
 duces into the government that representation of property which the 
 framers wished, but could not accomplish. — Editor. 
 
 ' De Tocqueville, in his " Democracy in America," cited as one of its 
 defects an instability in legislation, but so good an observer as Mr. Bryce 
 presumes that his comparison was with France, ' ' where the Code has 
 arrested legislation " ; and he adds that in ' ' the last thirty years [from 1867] 
 there have been more important changes in ordinary law annually made 
 by the English Parliament than by most American legislatures." This 
 can be extended to include Congress as well, and broadly speaking is 
 true of the legislation of the last hundred years, for the American of 
 to-day is governed by laws which have been broadened rather than 
 changed from those which governed his grandfather, while in England 
 the general body of laws has undergone many and radical changes. 
 This is partly to be accounted for by the fact that the growth of democ- 
 racy, almost equal in both countries, found in the United States legal 
 conditions already adapted to it, while in Great Britain a new system 
 had to be developed. Still further, the check on the legislative power in 
 the United States, first by the veto, and last by the supreme court, 
 doubly tends to discourage legislation ; while in Great Britain, where the 
 power of veto has been lost, where Parliament has practically come to be 
 
412 SENATE A SECUHjrY. [Wo. 62 (61) 
 
 not impossible that this part of the Constitution may be 
 more convenient in practice than it appears to many in 
 contemplation. 
 
 IV. The number of senators, and the duration of their 
 appointment, come next to be considered. In order to 
 form an accurate judgment on both these points, it will 
 be proper to inquire into the purposes which are to be 
 answered by a senate; and in order to ascertain these, it 
 will be necessary to review the inconveniences which a 
 republic must suffer from the want of such an institution. 
 
 First. It is a misfortune incident to republican govern- 
 ment, though in a less degree than to other governments, 
 that those who administer it may forget their obligations 
 to their constituents and prove unfaithful to their impor- 
 tant trust. In this point of view, a senate, as a second 
 branch of the legislative assembly, distinct from, and 
 dividing the power with, a first, must be in all cases 
 a salutary check on the government. It doubles the 
 security to the people, by requiring the concurrence of 
 two distinct bodies in schemes of usurpation or perfidy, 
 where the ambition or corruption of one would otherwise 
 be sufificient. This is a precaution founded on such clear 
 principles, and now so well" understood in the United 
 States, that it would be more than superfluous to enlarge 
 on it. I will barely remark that, as the improbability of 
 sinister combinations will be in proportion to the dissimi- 
 larity in the genius of the two bodies, it must be politic 
 to distinguish them from each other by every circum- 
 stance which will consist with a due harmony in all proper 
 measures and with the genuine principles of republican 
 government. 
 
 Secondly. The necessity of a senate is not less indicated 
 by the propensity of all single and numerous assemblies 
 to yield to the impulse of sudden and violent passions, 
 and to be seduced by factious leaders into intemperate 
 and pernicious resolutions. Examples on this subject 
 
 omnipotent, and where even the second legislative body is steadily losing 
 its power of restraint, an opposite tendency is to be observed. — Editok. 
 
Hamiltona)] LEGISLATIVE ERRORS. 413 
 
 might be cited without number; and from proceedings 
 within the United States, as well as from the history of 
 other nations. But a position that will not be contra- 
 dicted need not be proved. All that need be remarked 
 is that a body which is to correct this infirmity ought 
 itself to be free from it, and consequently ought to be 
 less numerous. It ought, moreover, to possess great 
 firmness, and consequently ought to hold its authority 
 by a tenure of considerable duration. 
 
 Thirdly. Another defect to be supplied by a senate lies 
 in a want of due acquaintance with the objects and 
 principles of legislation. It is not possible that an as- 
 gee sembly of men called for the most part from 
 
 No. 53. pursuits of a private nature, continued in ap- 
 
 pointment for a short time, and led by no permanent 
 motive to devote the intervals of public occupation to a 
 study of the laws, the affairs, and the comprehensive in- 
 terests of their country, should, if left wholly to them- 
 selves, escape a variety of important errors in the 
 exercise of their legislative trust. It may be affirmed, 
 on the best grounds, that no small share of the present 
 embarrassments of America is to be charged on the 
 blunders of our governments; and that these have pro- 
 ceeded from the heads rather than the hearts of most of 
 the authors of them. What indeed are all the repealing, 
 explaining, and amending laws, which fill and disgrace 
 our voluminous codes, but so many monuments of de- 
 ficient wisdom; so many impeachments exhibited by each 
 succeeding against each preceding session; so many 
 admonitions to the people of the value of those aids 
 which may be expected from a well-constituted senate? 
 
 A good government implies two things: first, fidelity 
 to the object of government, which is the happiness of 
 the people; secondly, a knowledge of the means by which 
 that object can be best attained. Some governments are 
 deficient in both these qualities; most governments are 
 deficient in the first. I scruple not to assert that in 
 American governments too little attention has been paid 
 to tha last. The federal Constitution avoids this error; 
 
414 DANGERS OF MUTABILITY. [No. 62 (61) 
 
 and what merits particular notice, it provides for the last 
 in a mode which increases the security for the first. 
 
 Fourthly. The mutability in the public councils arising 
 from a rapid succession of new members, however qual- 
 ified they may be, points out, in the strongest manner, 
 the necessity of some stable institution in the govern- 
 ment. Every new election in the States is found to 
 change one-half of the representatives. From this 
 change of men must proceed a change of opinions; and 
 from a change of opinions, a change of measures. But a 
 continual change even of good measures is inconsistent 
 with every rule of prudence and every prospect of success. 
 The reniark is verified in private life, and becomes more 
 just, as well as more important, in national transactions. 
 
 To trace the mischievous effects of a mutable govern- 
 ment would fill a volume. I will hint a few only, each 
 of which will be perceived to be a source of innumerable 
 others. 
 
 In the first place, it forfeits the respect and confidence 
 of other nations and all the advantages connected with 
 national character. An individual who is observed to be 
 inconstant to his plans, or perhaps to carry on his affairs 
 without any plan at all, is marked at once, by all prudent 
 people, as a speedy victim to his own unsteadiness and 
 folly. His more friendly neighbors may pity him, but all 
 will decline to connect their fortunes with his; and not a 
 few will seize the opportunity of making their fortunes 
 out of his. One nation is to another what one individual 
 is to another; with this melancholy distinction perhaps, 
 that the former, with fewer of the benevolent emotions 
 than the latter, are under fewer restraints also from tak- 
 ing undue advantage from the indiscretions of each 
 other. Every nation, consequently, whose affairs betray 
 a want of wisdom and stability, may calculate on every 
 loss which can be sustained from the more systematic 
 policy of their wiser neighbors. But the best instruction 
 on this subject is unhappily conveyed to America by the 
 example of her own situation. She finds that she is held 
 in no respect by her friends; that she is the derision of 
 
Hamilton a) ] UNDUE ADVANTAGE TO THE FEW. 415 
 
 her enemies; and that she is a prey to every nation which 
 has an interest in speculating on her fluctuating councils 
 and embarrassed affairs. 
 
 The internal effects of a mutable policy are still more 
 calamitous. It poisons the blessing of liberty itself. 
 It will be of little avail to the people that the laws are 
 made by men of their own choice if the laws be so volu- 
 minous that they cannot be read, or so incoherent that 
 they cannot be understood ; if they be repealed or revised 
 before they are promulgated, or undergo such incessant 
 changes that no man who knows what the law is to-day 
 can guess what it will be to-morrow. Law is defined to 
 be a rule of action; but how can that be a rule which is 
 little known and less fixed? 
 
 Another effect of public instability is the unreasonable 
 advantage it gives to the sagacious, the enterprising, and 
 the moneyed few over the industrious and uninformed 
 mass of the people. Every new regulation concerning 
 commerce or revenue, or in any manner affecting the 
 value of the different species of property, presents a new 
 harvest to those who watch the change and can trace its 
 consequences; a harvest reared not by themselves, but 
 by the toils and cares of the great body of their fellow- 
 citizens. This is a state of things in which it may be 
 said with some truth that laws are made for the /(?««/, not 
 for the many.^ 
 
 ' Very recent events have proved the truth of this principle. Un- 
 scrupulous members of Congress, and the shrewder speculators, have taken 
 advantage of the public measures to an extent which has caused great 
 scandals. The silver pool bought large blocks of silver as a prelim, 
 inary to the passing of the silver purchase law. The buying of sugar 
 trust stock just prior to the settling of the differential duty of the tariff 
 of 1894 put large sums of money into the pockets of the very men who 
 arranged the rate ; and this tariff, by the increased tax on spirits, en- 
 abled the whisky trust to malce a large amount. So, just previous to the 
 passage of the present (1897) tariff, in view of the new tariff schedules, 
 large amounts of merchandise were hurried into the country, to be sold 
 later on the basis of the new duties. Thus each special interest is 
 enabled through legislative changes to make undue profits, while the 
 unpolitical or uncommercial man, be he rich or poor, so far from receiv- 
 ing a share, is invariably the one who pays the profit; thus effectually 
 realizing Hamilton's arraignment of unstable legislation because thereby 
 the " laws are made for s./ew, not for the many." — EDITOR. 
 
4t6 TERM OP APPOINTMENT OF SENATE. [No. 68 (62) 
 
 In another point of view, great injury results from an 
 unstable government. The want of confidence in the 
 public councils damps every useful undertaking the suc- 
 cess and profit of which may depend on a continuance of 
 existing arrangements. What prudent merchant will 
 hazard his fortunes in any new branch of commerce when 
 he knows not but that Jiis plans may be rendered unlaw- 
 ful before they can be executed? What farmer or manu- 
 facturer will lay himself out for the encouragement given 
 to any particular cultivation or establishment, when he 
 can have no assurance that his preparatory labors and 
 advances will not render him a victim to an inconstant 
 government? In a word, no great improvement or laud- 
 able enterprise can go forward which requires the aus- 
 pices of a steady system of national policy. 
 
 But the most deplorable effect of all is that diminution 
 of attachment and reverence which steals into the hearts 
 of the people, towards a political system which betrays so 
 many marks of infirmity, and disappoints so many of their 
 flattering hopes. No government, any more than an in- 
 dividual, will long be respected without being truly re- 
 spectable; nor be truly respectable without possessing a 
 certain portion of order and stability. Publics. 
 
 No. 63 [62]. (Independent Journal^ March 2,1788.) Hamilton (?) 
 
 TERM OF APPOINTMENT OF THE SENATE. 
 
 Prevents a want of a due sense of national character, of a due respon- 
 sibility, and of a defense against temporary errors and delusions — His- 
 tory shows no long-lived republic without a Senate — Difference between 
 the ancient republics and the United States — Athens, Carthage, Sparta, 
 Rome, Crete — Objection that the Senate will acquire a dangerous pre- 
 eminence considered — Such a result impossible — Senate of Maryland — 
 British Parliament — Sparta, Rome, Carthage — The controlling influ- 
 ence of the House of Representatives. 
 
 To the People of the State of New York: 
 
 K fifth desideratum, illustrating the utility of a Senate, 
 is the want of a due sense of national character. With- 
 
Hamilton (1) ] SBJ^A TE A MD NA TIONA L CM A RA C TEH. 4 1 7 
 
 out a select and stable member of the government, the 
 esteem of foreign powers will not only be forfeited by an 
 unenlightened and variable policy, proceeding from the 
 causes already mentioned, but the national councils will 
 not possess that sensibility to the opinion of the world 
 which is perhaps not less necessary in order to merit, 
 than it is to obtain, its respect and confidence. 
 
 An attention to the judgment of other nations is im- 
 portant to every government for two reasons: the one is 
 that, independently of the merits of any particular plan 
 or measure, it is desirable, on various accounts, that it 
 should appear to other nations as the offspring of a 
 wise and honorable policy; the second is that in doubt- 
 ful cases, particularly where the national councils may 
 be warped by some strong passion or momentary inter- 
 est, the presumed or known opinion of the impartial 
 world may be the best guide that can be followed. 
 What has not America lost by her want of character 
 with foreign nations; and how many errors and follies 
 would she not have avoided, if the justice and propriety 
 of her measures had, in every instance, been previously 
 tried by the light in which they would probably appear to 
 the unbiased part of mankind? 
 
 Yet however requisite a sense of national character 
 may be, it is evident that it can never be sufficiently 
 possessed by a numerous and changeable body. It can 
 only be found in a number so small that a sensible degree 
 of the praise and blame of public measures may be the 
 portion of each individual; or in an assembly so durably 
 invested with public trust that the pride and conse- 
 quence of its members may be sensibly incorporated with 
 the reputation and prosperity of the community. The 
 half-yearly representatives of Rhode Island would proba- 
 bly have been little affected in their deliberations on the 
 iniquitous measures of that State by arguments drawn 
 from the light in which such measures would be viewed 
 by foreign nations, or even by the sister States; whilst it 
 can scarcely be doubted that if the concurrence of a select 
 and stable body had been necessary, a regard to national 
 
41^ IRRESPONStBILlTY OF SHORT TERMS. LNo. 63 (.62) 
 
 character alone would have prevented the calamities 
 under which that misguided people is now laboring. 
 
 I add, as a sixth defect, the want, in some important 
 cases, of a due responsibility in the government to the 
 people, arising from that frequency of elections which in 
 other cases produces this respcnsibility/ This remark 
 will, perhaps, appear not only new, but paradoxical. It 
 must nevertheless be acknowledged, when explained, to 
 be as undeniable as it is important. 
 
 Responsibility, in order to be reasonable, must be 
 limited to objects within the power of the responsible 
 party, and, in order to be effectual, must relate to opera- 
 tions of that power, of which a ready and proper judg- 
 ment can be formed by the constituents. The objects of 
 government may be divided into two general classes: the 
 one depending on measures which have singly an imme- 
 diate and sensible operation; the other depending on a 
 succession of well-chosen and well-connected measures, 
 which have a gradual and perhaps unobserved operation. 
 The importance of the latter description to the collective 
 and permanent welfare of every country needs no ex- 
 planation. And yet it is evident that an assembly elected 
 for so short a term as to be unable to provide more than 
 one or two links in a chain of measures, on which the 
 general welfare may essentially depend, ought not to be 
 answerable for the final result, any more than a steward 
 or tenant, engaged for one year, could be justly made to 
 answer for places or improvements which could not be 
 \ 
 
 ' One element of this irresponsibility is due to a recurring condition 
 which our election laws have produced. jEvery two years a new House 
 of Representatives is chosen in November, but after the results of the 
 election are known, the Congress elected two years before holds one 
 more session before it is replaced by the new body. In consequence of 
 this, some of the representives and senators know that they are to go 
 out of office, and, re-election being no longer possible, are heedless 
 of public opinion. With hardly an exception, the " hold-over sessions " 
 of Congress are marked by an unusual outburst of extravagance, job- 
 bery, and special legislation. The defedt could easily be remedied by 
 such change either of the date of election, or of the meeting of Con- 
 gress, that no superseded Congress could legislate. In both Great Britain 
 and France a new election of the representative body at once ends the 
 term of that hitherto holding office. — Editor. 
 
Hamilton (1) 1 DEfiENSE AGAINST DELUSIONS. 419 
 
 accomplished in less than half a dozen years. Nor is it 
 possible for the people to estimate the share of influence 
 which their annual assemblies may respectively have on 
 events resulting from the mixed transactions of several 
 years. It is sufficiently difficult to preserve a personal 
 responsibility in the rhembers of a numerous body for such 
 acts of the body as have an immediate, detached, and 
 palpable operation on its constituents. 
 
 The proper remedy for this defect must be an addi- 
 t; inal body in the legislative department, which, having 
 sufficient permanency to provide for such objects as re- 
 quire a continued attention, and a train of measures, may 
 be justly and effectually answerable for the attainment of 
 those objects. 
 
 Thus far I have considered the circumstances which 
 point out the necessity of a well-constructed Senate only 
 as they relate to the representatives of the people. To 
 a people as little blinded by prejudice or corrupted by 
 flattery as those whom I address, I shall not scruple to 
 add that such an institution may be sometimes necessary 
 as a defense to the people against their own temporary 
 errors and delusions. As the cool and deliberate sense 
 of the community ought, in all governments, and actually 
 will, in all free governments, ultimately prevail over the 
 views of its rulers; so there are particular moments in 
 public affairs when the people, stimulated by some irreg- 
 ular passion, or some illicit advantage, or misled by the 
 artful misrepresentations of interested men, may call for 
 measures which they themselves will afterwards be the 
 most ready to lament and condemn. In these critical 
 moments, how salutary will be the interference of some 
 temperate and respectable body of citizens, in order to 
 check the misguided career, and to suspend the blow 
 meditated by the people against themselves, until reason, 
 justice, and truth can regain their authority over the 
 public mind? What bitter anguish would not the people 
 of Athens have often escaped if their government had 
 contained so provident a safeguard against the tyranny 
 of their own passions? Popular liberty might then have 
 
426 UMdUMNG REPI)JBUCS HAt) SeMATES. [ilo. 63 (62) 
 
 escaped the indelible reproach of decreeing to the same 
 citizens the hemlock on one day and statues on the next. 
 
 It may be suggested that a people spread over an ex- 
 tensive region cannot, like the crowded inhabitants of a 
 See Nos. small district, be subject to the infection of 
 9 and 47. violent passions or to the danger of combin- 
 ing in pursuit of unjust measures. I am far from deny- 
 ing that this is a distinction of peculiar importance. I 
 have, on the contrary, endeavored in a former paper to 
 show that it is one of the principal recommendations of 
 a confederated republic. At the same time, this advan- 
 tage ought not to be considered as superseding the use 
 of auxiliary precautions. It may even be remarked that 
 the same extended situation which will exempt the peo- 
 ple of America from some of the dangers incident to 
 lesser republics will expose them to the inconveniency 
 of remaining, for a longer time, under the influence of 
 those misrepresentations which the combined industry 
 of interested men may succeed in distributing among 
 them. 
 
 It adds no small weight to all these considerations to recollect 
 that history informs us of no long-lived republic which had not a 
 senate. Sparta, Rome, and Carthage are, in fact, the only states 
 to whom that character can be applied. In each of the two first 
 there was a senate for life. The constitution of the senate in the 
 last is less known. Circumstantial evidence makes it probable 
 that it was not different in this particular from the two others. It 
 is at least certain that it had some quality or other which rendered 
 it an anchor against popular fluctuations ; and that a smaller 
 council, drawn out of the senate, was appointed not only for life, 
 but filled up vacancies itself. These examples, though as unfit for 
 the imitation as they are repugnant to the genius of America, are, 
 notwithstanding, when compared with the fugitive and turbulent 
 existence of other ancient republics, very instructive proofs of the 
 necessity of some institution that will blend stability with liberty. 
 I am not unaware of the circumstances which' distinguish the 
 American from other popular governments, as well ancient as 
 modern ; and which render extreme circumspection necessary in 
 reasoning from the one case to the other. But after allowing due 
 weight to this consideration, it may still be maintained that there 
 are many points of similitude which render these examples not un- 
 
Hamilton (?)] REPkESktJTATION IN GREECE. \2l 
 
 worthy of our attention. Many of the defects, as we have seen, 
 which can only be supplied by a senatorial institution, are common 
 to a numerous assembly frequently elected by the people, and to 
 the people themselves. There are others peculiar to the former, 
 which require the control of such an institution. The people can 
 never willfully betray their own interests, but they may possibly be 
 betrayed by the representatives of the people ; and the danger will 
 be evidently greater where the whole legislative trust is lodged in 
 the hands of one body of men than where the concurrence of sep- 
 arate and dissimilar bodies is required in 3very public act. 
 
 The difference most relied on, between the American and other 
 republics, consists in the principle of representation ; which is the 
 gee pivot on which the former move, and which is sup- 
 
 No. 14. posed to have been unknown to the latter or at least 
 
 to the ancient part of them. The use vvhich has been made of 
 this difference in reasonings contained in former papers will have 
 shown that I am disposed neither to deny its existence nor to 
 undervalue its importance. I feel the less restraint, therefore, in 
 observing that the position concerning the ignorance of the ancient 
 governments on the subject of representation is by no means pre- 
 cisely true in the latitude commonly given to it. Without entering 
 into a disquisition which here would be misplaced, I will refer to a 
 few known facts in support of what I advance. 
 
 In the most pure democracies of Greece, many of the executive 
 functions were performed, not by the people themselves, but by 
 officers elected by the people, and representing the people in their 
 executive capacity. 
 
 Prior to the reform of Solon Athens was governed by nine 
 hxf^ons, a.ixvms}A>j elected by the people at large. The degree of 
 power delegated to them seems to be left in great obscurity. Sub- 
 sequent to that period, we find an assembly, first of four, and after- 
 ward of six hundred members, annually elected by the people ; and 
 partially representing them in their legislative capacity, since they 
 were not only associated with the people in the function of making 
 laws, but had the exclusive right of originating legislative proposi- 
 tions to the people. The senate of Carthage, also, whatever might 
 be its power, or the duration of its appointment, appears to have 
 been elective by the suffrages of the people. Similar instances 
 might be traced in most, if not all the popular governments of 
 antiquity. 
 
 Lastly, in Sparta we meet with the Ephori, and in Rome with 
 the Tribunes; two bodies, small indeed in numbers, but annually 
 elected by the whole body of the people, and considered as the 
 
42 2 AMERICAN PLAN SUPERIOR. [No. 63 (62) 
 
 representatives of the people, almost in their plenipotentiary 
 capacity. The Cosmi of Crete were also annually elected by the 
 people, and have been considered by some authors as an institu- 
 tion analogous to those of Sparta and Rome, with this difference 
 only, that in the election of that representative body the right of 
 suffrage was communicated to a part only of the people. 
 
 From these facts, to which many others might be added, it is 
 clear that the principle of representation was neither unknown to 
 the ancients nor wholly overlooked in their political constitutions. 
 The true distinction between these and the American governments 
 lies in the total exclusion of the people., in their collective capacity, 
 from any share in the latter, and not in the total exclusion of the 
 representatives of the people hoxa\he. administration olth&former. 
 The distinction, however, thus qualified, must be admitted to leave 
 a most advantageous superiority in favor of the United States. 
 But to insure to this advantage its full effect, we must be careful 
 not to separate it from the other advantage, of an extensive terri- 
 tory. For it cannot be believed that any form of representative 
 government could have succeeded within the narrow limits occu- 
 pied by the democracies of Greece.' 
 
 ' " But federalism, with its pacific implications, was not an invention 
 of the Teutonic mind. The idea was familiar to the city communities 
 of ancient Greece, which, along with their intense love of self-govern- 
 ment, felt the need of combined action for warding off external attack. 
 In their Achaian and Aitolian leagues the Greeks made brilliant attempts 
 toward founding a nation upon some higher principle than that of mere 
 conquest, and the histoiy of these attempts is exceedingly interesting and 
 instructive. They failed for lack of the principle of representation, 
 which was practically unknown to the world until introduced by the 
 Teutonic colonizers of the Roman empire. Until the idea of power 
 delegated by the people had become familiar to men's minds in its prac- 
 tical bearings, it was impossible to create a great nation without crushing 
 out the political life in some of its parts. Some center of power was 
 sure to absorb all the political life, and grow at the expense of the out- 
 lying parts, until the result was a centralized despotism. Hence it came 
 to be one of the commonplace assumptions of political writers that re- 
 publics must be small, that free government is practicable only in a con- 
 fined area, and that the only strong and durable government, capable of 
 maintaining order throughout a vast territory, is some form of absolute 
 monarchy. It was quite natural that people should formerly have held 
 this opinion, and it is indeed not yet quite obsolete, but its fallaciousness 
 will become more and more apparent as American history is better 
 understood. Our experience has now so far widened that we can see 
 that despotism is not the strongest but well-nigh the weakest form of 
 government ; that centralized administrations, like that of the Roman 
 empire, have fallen to pieces, not because of too much, but because of 
 too little freedom ; and that the only perdurable government must be 
 that which succeeds in achieving national unity on a grand scale, without 
 
Hamilton (1) ] ARISTOCRA TIC TENDENCIES. 42 j 
 
 In answer to all these arguments, suggested by reason, 
 illustrated by examples, and enforced by our own experi- 
 ence, the jealous adversary of the Constitution will 
 probably content himself with repeating that a senate 
 appointed not immediately by the people, and for the 
 term of six years, must gradually acquire a dangerous 
 pre-eminence in the government, and finally transform it 
 into a tyrannical aristocracy. 
 
 To this general answer the general reply ought to be 
 sufficient that liberty may be endangered by the abuses 
 of Hberty as well as by the abuses of power; that there 
 are numerous instances of the former as well as of the 
 latter; and that the former, rather than the latter, are 
 apparently most to be apprehended by the United States. 
 But a more particular reply may be given. 
 
 Before such a revolution can be effected the Senate, it 
 is to be observed, must in the first place corrupt itself; 
 must next corrupt the State legislatures; must then 
 corrupt the House of Representatives; and must finally 
 corrupt the people at large. It is evident that the Senate 
 must be first corrupted'before it can attempt an establish- 
 ment of tyranny. Without corrupting the State legisla- 
 tures, it cannot prosecute the attempt, because the 
 periodical change of members would otherwise regenerate 
 the whole body. Without exerting the means of corrup- 
 
 weakening the sense of personal and local independence. For in the 
 body politic this spirit of freedom is as the red corpuscles in the blood ; 
 it carries the life with it. It makes the difference between a society of 
 self-respecting men and women and a society of puppets. Your nation 
 may have art, poetry, and science, all the refinements of civilized life, all 
 the comforts and safeguards that human ingenuity can devise ; but if it 
 lose this spirit of personal and local independence, it is doomed and de- 
 serves its doom. As President Cleveland has well said, it is not the 
 business of a government to support its people, but of the people to sup- 
 port their government ; and once to lose sight of this vital truth is as 
 dangerous as to trifle with some stealthy narcotic poison. Of the two 
 opposite perils which have perpetually threatened the welfare of political 
 society — anarchy on the one hand, loss of self-government on the other 
 — Jefferson was right in maintaining that the latter is really the more 
 to be dreaded because its beginnings are so terribly insidious. Many 
 will understand what is meant by a threat of secession, where few take 
 heed of the baneful principle involved in a Texas Seed-bill." — Fiske's 
 ' ' Beginnings of New England." — Editor. 
 
454 SENATE OF MARYLAND. [No. 63 (62) 
 
 tion with equal success on the House of Representatives, 
 the opposition of that coequal branch of the government 
 would inevitably defeat the attempt; and without cor- 
 rupting the people themselves, a succession of new rep- 
 resentatives would speedily restore all things to their 
 pristine order. Is there any man who can seriously per- 
 suade himself that the proposed Senate can, by any pos- 
 sible means within the compass of human address, arrive 
 at the object of a lawless ambition through all these 
 obstructions? 
 
 If reason condemns the suspicion, the same sentence is 
 pronounced by experience. The constitution of Mary- 
 land furnishes the most apposite example. The Senate 
 of that State is elected, as the federal Senate will be, in- 
 directly by the people, and for a term less by one year 
 only than the federal Senate. It is distinguished, also, 
 by the remarkable prerogative of filling up its own vacan- 
 cies within the term of its appointment, and, at the same 
 time, is not under the control of any such rotation as is 
 provided for the federal Senate. There are some other 
 lesser distinctions, which would expose the former to 
 colorable objections that do not lie against the latter. 
 If the federal Senate, therefore, really contained the 
 danger which has been so loudly proclaimed, some symp- 
 toms at least of a like danger ought by this time to have 
 been betrayed by the Senate of Maryland, but no such 
 symptoms have appeared. On the contrary, the jealousies 
 at first entertained by men of the same description with 
 those who view with terror the correspondent part of the 
 federal Constitution have been gradually extinguished 
 by the progress of the experiment, and the Maryland 
 constitution is daily deriving from the salutary operation 
 of this part of it a reputation in which it will probably 
 not be rivaled by that of any State in the Union.' 
 
 'Almost alone of the states, Maryland had refused to issue paper 
 money after the Revolution, a refusal due entirely to her Senate, which 
 twice negatived a bill passed by the lower house. The controversy was 
 argued in " The Present State of Maryland, by the Delegates of the 
 People," Baltimore, 1786, which reads not unlike many of the current 
 declamations against the national Senate for its resistance to the will of 
 the people. — Editor. 
 
Hamilton (?)] LORDS YIELD TO COMMONS. 425 
 
 But if anything could silence the jealousies on this sub- 
 ject, it ought to be the British example. The Senate 
 there, instead of being elected for a term of six years, 
 and of being unconfined to particular families or fortunes, 
 is an hereditary assembly of opulent nobles. The House 
 of Representatives, instead of being elected for two 
 years, and by the whole body of the people, is elected for 
 seven years, and, in very great proportion, by a very 
 small proportion of the people. Here, unquestionably, 
 ought to be seen in full display the aristocratic usurpa- 
 tions and tyranny which are at some future period to be 
 exemplified in the United States. Unfortunately, how- 
 ever, for the anti-federal argument, the British history 
 informs us that this hereditary assembly has not been 
 able to defend itself against the continual encroachments 
 of the House of Representatives; and that it no sooner 
 lost the support of the monarch than it was actually 
 crushed by the weight of the popular branch.' 
 
 As far as antiquity can instruct us on this subject, its examples 
 support the reasoning which we have employed. In Sparta the 
 Ephori, the annual representatives of the people, were found an 
 overmatch for the senate forlife, continually gained on its authority, 
 and finally drew all power into their own hands. The Tribunes 
 of Rome, who were the representatives of the people, prevailed, it 
 is well known, in almost every contest with the senate for life, and 
 in the end gained the most complete triumph over it. The fact is 
 the more remarkable as unanimity was required in every act of the 
 Tribunes, even after their number was augmented to ten. It 
 proves the irresistible force possessed by that branch of a free 
 government which has the people on its side. To these examples 
 might be added that of Carthage, whose senate, according to the 
 testimony of Polybius, instead of drawing all power into its vortex, 
 had, at the commencement of the second Punic War, lost almost 
 the whole of its original portion. 
 
 Besides the conclusive evidence resulting from this 
 assemblage of facts that the federal Senate will never be 
 
 ' In Bagehot's ' ' English Constitution "he discusses at some length the 
 question of the time at which the House of Lords " must yield " to the 
 Commons, and reaches the singularly stultifying conclusion to his main 
 argument that it is " whenever the opinion of the Commons is also the 
 opinion of the nation."— Editor. 
 
426 TREATY-MAKING POWER OF SENATE. [No. 64 (63) 
 
 able to transform itself by gradual usurpations into an 
 independent and aristocratic body, we are warranted in 
 believing that, if such a revolution should ever happen 
 from causes which the foresight of man cannot guard 
 against, the House of Representatives, with the people on 
 their side, will at all times be able to bring back the Con- 
 stitution to its primitive form and principles. Against 
 the force of the immediate representatives of the people, 
 nothing will be able to maintain even the constitutional 
 authority of the Senate but such a display of enlightened 
 policy and attachment to the public good as will divide 
 with that branch of the legislature the affections and 
 support of the entire body of the people themselves. 
 
 PUBLIUS. 
 
 No. 64 [63]. (N'w York Packet, March 7, 1788.) Jay. 
 
 TREATY-MAKING POWER OF THE SENATE. 
 
 The treaty-making power — Importance of this power — Property vested 
 in the Senate — A popular body not fit for this power — Reasons — Objec- 
 tions to this power in the Senate considered, and reasons for their rejec. 
 tion enumerated — The responsibility of senators. 
 
 To the People of the State of New York: 
 
 It is a just and not a new observation that enemies to 
 particular persons, and opponents to particular measures, 
 seldom confine their censures to such things only in either 
 as are worthy of blame. Unless on this principle, it is 
 difficult to explain the motives of their conduct who 
 condemn the proposed Constitution in the aggregate and 
 treat with severity some of the most unexceptionable 
 articles in it. 
 
 The second section gives power to the President, "by 
 and with the advice and consent of the Senate, to make treaties, 
 
 PROVIDED TWO-THIRDS OF THE SENATORS PRESENT CON- 
 CUR." 
 
 The power of making treaties is an important one, 
 especially as it relates to war, peace, and commerce; 
 
Jay] CARE IN CHOICE OF SENATORS. 42? 
 
 and it should not be delegated but in such a mode, and 
 with such precautions, as will afford the highest security 
 that it will be exercised by men the best qualified for the 
 purpose and in the manner most conducive to the public 
 good. The convention appears to have been attentive to 
 both these points: they have directed the President to 
 be chosen by select bodies of electors, to be deputed by 
 the people for that express purpose; and they have com- 
 mitted the appointment of senators to the State legis- 
 latures. This mode has, in such cases, vastly the 
 advantage of elections by the people in their collective 
 capacity, where the activity of party zeal, taking advan- 
 tage of the supineness, the ignorance, and the hopes and 
 fears of the unwary and interested, often places men in 
 office by the votes of a small proportion of the electors. 
 
 As the select assemblies for choosing the President, as 
 well as the State legislatures who appoint the senators, 
 See will in general be composed of the most 
 
 No. 68. enlightened and respectable citizens, there is 
 
 reason to presume that their attention and their votes 
 will be directed to those men only who have become the 
 most distinguished by their abilities and virtue, and in 
 whom the people perceive just grounds for confidence. 
 The Constitution manifests very particular attention to 
 this object. By excluding men under thirty-five from 
 the first office, and those under thirty from the second, 
 it confines the electors to men of whom the people have 
 had time to form a judgment, and with respect to whom 
 they will not be liable to be deceived by those brilliant 
 appearances of genius and patriotism which, like transient 
 meteors, sometimes mislead as well as dazzle. If the 
 observation be well founded that wise kings will always 
 be served by able ministers, it is fair to argue that, as an 
 assembly of select electors possess in a greater degree 
 than kings the means of extensive and accurate informa- 
 tion relative to men and characters, so will their appoint- 
 ments bear at least equal marks of discretion and 
 discernment. The inference v/hich naturally results 
 from these considerations is this, that the President and 
 
428 NEED OF ABLE AND TRIED MEN. [No. 64 (63) 
 
 senators so chosen will always be of the- number of those 
 who best understand our national interests, whether con- 
 sidered in relation to the several States or to foreign 
 nations; who are best able to promote those interests, 
 and whose reputation for integrity inspires and merits 
 confidence. With such men the power of making treaties 
 may be safely lodged. 
 
 Although the absolute necessity of system, in the 
 conduct of any business, is universally known and 
 acknowledged, yet the high importance of it in national 
 affairs has not yet become sufficiently impressed on the 
 public mind. They who wish to commit the power under 
 consideration to a popular assembly, composed of mem- 
 bers constantly coming and going in quick succession, 
 seem not to recollect that such a body must necessarily 
 be inadequate to the attainment of those great objects 
 which require to be steadily contemplated in all their 
 relations and circumstances, and which can only be 
 approached and achieved by measures which not only 
 talents, but also exact information, and often much time, 
 are necessary to concert and to execute. It was wise, 
 therefore, in the convention to provide, not only that 
 the power of making treaties should be committed to 
 able and honest men, but also that they should continue 
 in place a sufficient time to become perfectly acquainted 
 with our national concerns and to form and introduce a 
 system for the management of them. The duration 
 prescribed is such as will give them an opportunity of 
 greatly extending their political information, and of ren- 
 dering their accumulating experience more and more 
 beneficial to their country. Nor has the convention 
 discovered less prudence in providing for the frequent 
 elections of senators in such a way as to obviate the 
 inconvenience of periodically transferring those great 
 affairs entirely to new men; for by leaving a considerable 
 residue of the old ones in place, uniformity and order, as 
 well as a constant succession of official information, will 
 be preserved. 
 
 There are a few who will not admit that the affairs of 
 
Jay] SMCR&CV M MAKIMG TREATIES. 429 
 
 trade and navigation should be regulated by a system 
 cautiously formed and steadily pursued, and that both 
 our treaties and our laws should correspond with and be 
 made to promote it. It is of much consequence that 
 this correspondence and conformity be carefully main- 
 tained; and they who assent to the truth of this posi- 
 tion will see and confess that it is well provided for by 
 making concurrence of the Senate necessary both to 
 treaties and to laws. 
 
 It seldom happens in the negotiation of treaties, of 
 whatever nature, but that perfect secrecy and immediate 
 dispatch are sometimes requisite." There are cases where 
 the most useful intelligence may be obtained, if the per- 
 sons possessing it can be relieved from apprehensions of 
 discovery. Those apprehensions will operate on those 
 persons whether they are actuated by mercenary or 
 friendly motives; and there doubtless are many of both 
 descriptions who would rely on the secrecy of the Presi- 
 dent, but who would not confide in that of the Senate, 
 and still less in that of a large popular Assembly. The 
 convention have done well, therefore, in so disposing of 
 the power of making treaties that although the President 
 must, in forming them, act by the advice and consent of 
 the Senate, yet he will be able to manage the business of 
 intelligence in such a manner as prudence may suggest. 
 
 They who have turned their attention to the affairs of 
 men must have perceived that there are tides in them; 
 tides very irregular in their duration, strength, and 
 direction, and seldom found to run twice exactly in the 
 same manner or measure. To discern and to profit by 
 these tides in national affairs is the business of those who 
 preside over them; and they who have had much experi- 
 ence on this head inform us that there frequently are 
 
 ' To this day treaties are discussed in " secret session,'' although the 
 time has long since gone by when diplomacy required any extraordinary 
 secrecy. Bagehot criticises the Senate for retaining this system, and 
 asserts that England would ' ' have a manlier and plainer way of dealing 
 with foreign policy if ministers were obliged to explain clearly their 
 foreign contracts before they were valid, just as they have to explain 
 their domestic proposals before they can become laws." — Editor. 
 
43° DISPATCH OFTEN REQUIRED. [No, 64(63) 
 
 occasions when days, nay, even when hours, are precious. 
 The loss of a battle, the death of a prince, the removal 
 of a minister, or other circumstances intervening to 
 change the present posture and aspect of affairs, may 
 turn the most favorable tide into a course opposite to our 
 wishes. As in the field, so in the cabinet, there are 
 moments to be seized as they pass, and they who pre- 
 side in either should be left in capacity to improve them. 
 So often and so essentially have we heretofore suffered 
 from the want of secrecy and dispatch that the Constitu- 
 tion would have been inexcusably defective if no atten- 
 tion had been paid to those objects. Those matters 
 .which in negotiations usually require the most secrecy 
 and the most dis.patch are those preparatory and auxiliary 
 measures which are not otherwise important in a national 
 view than as they tend to facilitate the attainment of 
 the objects of the negotiation. For these the President 
 will find no difficulty to provide; and should any circum- 
 stance occur which requires the advice and consent of 
 the Senate, he may at any time convene them. Thus we 
 see that the Constitution provides that our negotiations 
 for treaties shall have every advantage which can be 
 derived from talents, information, integrity, and deliber- 
 ate investigations, on the one hand, and from secrecy 
 and dispatch, on the other. 
 
 But to this plan, as to most others that have ever 
 appeared, objections are contrived and urged. 
 
 Some are displeased with it, not on account of any 
 errors or defects in it, but because, as the treaties, when 
 made, are to have the force of laws, they should be made 
 only by men invested with legislative authority. These 
 gentlemen seem not to consider that the judgments of 
 our courts, and the commissions constitutionally given 
 by our governor, are as ^lid and as binding on all 
 persons whom they concern as the laws passed by our 
 legislature. All constitutional acts of power, whether in 
 the executive or in the judicial department, have as much 
 legal validity and obligation as if they proceeded from 
 the legislature; and therefore, whatever name be given 
 
Jay] BINDING NATURE OF TREATIES. 431 
 
 to the power of making treaties, or however obligatory 
 they may be when made, certain it is that the people 
 may with much propriety commit the power to a dis- 
 tinct body from the legislature, the executive, or the 
 judicial. It surely does not follow, that because they 
 have given the power of making laws to the legislature, 
 that therefore they should likewise give them power to 
 do every other act of sovereignty by which the citizens 
 are to be bound and affected. 
 
 Others, though content that treaties should be made in 
 the mode proposed, are averse to their being the supreme 
 laws of the land. They insist and profess to believe that 
 treaties, like acts of assembly, should be repealable 
 at pleasure. This idea seems to be new and peculiar 
 to this country, but new errors, as well as new truths, 
 often appear. These gentlemen would do well to reflect 
 that a treaty is only another name for a bargain, and that 
 it would be impossible to find a nation who would make 
 any bargain with us which should be binding on them 
 absolutely, but on us only so long and so far as we may 
 think proper to be bound by it. They who make laws 
 may, without doubt, amend or repeal them; and it will not 
 be disputed that they who make treaties may alter or cancel 
 them; but still let us not forget that treaties are made, 
 not by only one of the contracting parties, but by both; 
 and, consequently, that as the consent of both was essen- 
 tial to their formation at first, so must it ever afterward 
 be to alter or cancel them. The proposed Constitution, 
 therefore, has not in the least extended the obligation of 
 treaties. They are just as binding, and just as far beyond 
 the lawful reach of legislative acts now, as they will be at 
 any future period or under any form of government. 
 
 However useful jealousy may be in republics, yet when, 
 like bile in the natural, it abounds too much in the body 
 politic, the eyes of both become very liable to be deceived 
 by the delusive appearances which that malady casts on 
 surrounding objects. From this cause, probably, proceed 
 the fears and apprehensions of some that the President 
 and Senate may make treaties without an equal eye to the 
 
432 CORRUPTION IMPROBABLE. [No. 64 (63) 
 
 interests of all the States. Others suspect that two-thirds 
 will oppress the remaining third, and ask whether those 
 gentlemen are made sufficiently responsible for their 
 conduct; whether, if they act corruptly, they can be 
 punished; and if they make disadvantageous treaties, 
 how are we to get rid of those treaties? 
 
 As all the States are equally represented in the Senate, 
 and by men the most able and the most willing to pro- 
 mote the interests of their constituents, they will all 
 have an equal degree of influence in that body, especially 
 while they continue to be careful in appointing proper 
 persons and to insist on their punctual attendance. In 
 proportion as the United States assume a national form 
 and a national character, so will the good of the whole be 
 more and more an object of attention, and the govern- 
 ment must be a weak one indeed, if it should forget 
 that the good of the whole can only be promoted by 
 advancing the good of each of the parts or members 
 which compose the whole. It will not be in the power of 
 the President and Senate to make any treaties by which 
 they and their families and estates will not be equally 
 bound and affected with the rest of the community; and, 
 having no private interests distinct from that of the 
 nation, they will be under no temptations to neglect the 
 latter. 
 
 As to corruption, the case is not supposable. He 
 must either have been very unfortunate in his intercourse 
 with the world, or possess a heart very susceptible of 
 such impressions, who can think it probable that the 
 President and two-thirds of the Senate will ever be capa- 
 ble of such unworthy conduct. The idea is too gross 
 and too invidious to be entertained. But in such a case, 
 if it should ever happen, the treaty so obtained from us 
 would, like all other fraudulent contracts, be null and 
 void by the law of nations. 
 
 With respect to their responsibility, it is difficult to 
 conceive how it could be increased. Every considera- 
 tion that can influence the human mind, such as honor, 
 oaths, reputations, conscience, the love of country, and 
 
Hamilton] IMPEACHMENT POWER. 433 
 
 family affections and attacliments, afford security for 
 their fidelity. In short, as the Constitution has taken 
 the utmost care that they shall be men of talents and 
 integrity, we have reason to be persuaded that the 
 treaties they make will be as advantageous as, all cir- 
 cumstances considered, could be made; and so far as the 
 fear of punishment and disgrace can operate, that motive 
 to good behavior is amply afforded by the article on the 
 subject of impeachments. 
 
 PUBLIUS. 
 
 No. 65 [O4]. (.New York Packet, March 7, 1788.) Hamilton. 
 
 IMPEACHMENT POWER OF THE SENATE. 
 
 The appointment of public officers — The authority to sit as a court in 
 the trial of impeachments — Difficulty of forming such a court — The Sen- 
 ate most fit for such a trust — The plan of delegating this authority to the 
 supreme court considered and rejected — The propriety of uniting the 
 supreme court in this power with the Senate considered and denied — 
 The propriety of giving this authority to other persons disconnected with 
 any department of the government considered and denied — Even if this 
 power in the Senate is not desirable, the constitution should not be rejected. 
 
 To the People of the State of New York: 
 
 The remaining powers which the plan of the conven- 
 tion allots to the Senate, in a distinct capacity, are com- 
 prised in their participation with the executive in the 
 appointment to offices, and in their judicial character as 
 a court for the trial of impeachments. As in the busi- 
 ness of appointments the executive will be the principal 
 agent, the provisions relating to it will most properly be 
 discussed in the examination of that department. We 
 will, therefore, conclude this head with a view of the 
 judicial character of the Senate. 
 
 A well-constituted court for the trial of impeachments 
 is an object not more to be desired than difficult to be 
 obtained in a government wholly elective. The subjects 
 of its jurisdiction are those offenses which proceed from 
 the misconduct of public men, or, in other words, from 
 
434 POLITICAL OFFENSES. [No. 65 (64) 
 
 the abuse or violation of some public trost. They are of 
 a nature which may with peculiar propriety be denomi- 
 nated POLITICAL, as they relate chiefly to injuries done 
 immediately to the society itself. The prosecution of 
 them, for this reason, will seldom fail to agitate the pas- 
 sions of the whole community, and to divide it into 
 parties more or less friendly or inimical to the accused. 
 In many cases it will connect itself with the pre-existing 
 factions, and will enlist all their animosities, partialities, 
 influence, and interest on one side or on the other; and 
 in such cases there will always be the greatest danger 
 that the decision will be regulated more by the compara- 
 tive strength of parties than by the real demonstrations 
 of innocence or guilt." 
 
 The delicacy and magnitude of a trust which so deeply 
 concerns the political reputation and existence of every 
 man engaged in the administration of public affairs 
 speak for themselves. The difificulty of placing it rightly 
 in a government resting entirely on the basis of periodi- 
 cal elections will as readily be perceived, when it is con- 
 sidered that the most conspicuous characters in it will, 
 from that circumstance, be too often the leaders or the 
 tools of the most cunning or the most numerous faction, 
 and on this account can hardly be expected to possess 
 the requisite neutrality towards those whose conduct may 
 be the subject of scrutiny. 
 
 ' The history of impeachment has proved this to a deplorable degree. 
 Of the seven impeachment trials actually conducted by the Senate but 
 two convictions have resulted, that of Judge Humphreys in 1862 and 
 of Judge Pickering in 1803. In the latter case the fact of insanity 
 enters as a mitigating feature. In the case of Blount, in 1797, the 
 Senate sustained the plea of counsel that Blount, having been expelled 
 from the Senate, vi'as not subject to the process of impeachment. In 
 every attempted impeachment involving political questions, the most 
 intense party heats have been aroused, and owing to this the two-thirds 
 vote necessarjt to convict has never been obtained. The power has 
 recently been likened to a "sword rusted in its scabbard," but this is 
 an overstatement. If, as yet, there has been no great use of the power, 
 it is due more to the fortunate lack of occasion than to any loss of 
 inherent potency. The dread of impeachment, necessarily felt by every 
 public officer, must also be reckoned in as a valuable deterrent. The 
 whole history of national impeachment trials is admirably given in 
 Roger Foster's 'Commentaries on the Constitution," i. 505. — Editor. 
 
Hamilton] SENATE A PROPER TRIBUNAL. 435 
 
 The convention, it appears, thought the Senate the 
 most fit depositary of this important trust. Those who 
 can best discern the intrinsic difificulty of the thing will 
 be least hasty in condemning that opinion, and will be 
 most inclined to allow due weight to the arguments which 
 may be supposed to have produced it. 
 
 What, it may be asked, is the true spirit of the institu- 
 tion itself? Is it not designed as a method of national' 
 INQUEST into the conduct of public men? If this be the 
 design of it, who can so properly be the inquisitors for 
 the nation as the representatives of the nation them- 
 selves? It is not disputed that the power of originat- 
 ing the inquiry, or, in other words, of preferring the 
 impeachment, ought to be lodged in the hands of one 
 branch of the legislative body. Will not the reasons 
 which indicate the propriety of this arrangement strongly 
 plead for an admission of the other branch of that body 
 to a share of the inquiry? The model from which the 
 idea of this institution has been borrowed pointed out 
 that course to the convention. In Great Britain it is 
 the province of the House of Commons to prefer the 
 impeachment and of the House of Lords to decide upon 
 it. Several of the State constitutions have followed the 
 example. As well the latter, as the former, seem to 
 have regarded the practice of impeachments as a bridle 
 in the hands of the legislative body upon the executive 
 servants of the government. Is not this jthe true light 
 in which it ought to be regarded? 
 
 Where else than in the Senate could have been found 
 a tribunal sufficiently dignified or sufficiently independ- 
 ent? What other body would be likely to feel confidence 
 enough in its own situation to preserve, unawed and unin- 
 fluenced, the necessary impartiality between an individual 
 accused and the representatives of the people, his accusers? 
 
 Could the Supreme Court have been relied upon as 
 answering this description? It is much to be doubted 
 whether the members of that tribunal would at all times 
 be endowed with so eminent a portion of fortitude as 
 would be called for in the execution of so difficult a task; 
 
436 SUPREME COURT AND IMPEACHMENT. [No. 65(64) 
 
 and it is still more to be doubted whether they would 
 possess the degree of credit and authority which might, 
 on certain occasions, be indispensable towards reconciling 
 the people to a decision that should happen to clash with 
 an accusation brought by their immediate representa- 
 tives." A deficiency in the first would be fatal to the 
 accused; in the last, dangerous to the public tranquil- 
 lity. The hazard, in both these respects, could only be 
 avoided, if at all, by rendering that tribunal more numer- 
 ous than would consist with a reasonable attention to 
 economy. The necessity of a numerous court for the 
 trial of impeachments is equally dictated by the nature 
 of the proceeding. This can never be tied down by such 
 strict rules, either in the delineation of the offense by 
 the prosecutors, or in the construction of it by the 
 judges, as in common cases serve to limit the discretion 
 of courts in favor of personal security. There will be 
 no jury to stand between the judges who are to pro- 
 nounce the sentence of the law and the party who is to 
 receive or suffer it. The awful discretion which a court 
 of impeachments must necessarily have, to doom to 
 honor or to infamy the most confidential and the most 
 distinguished characters, of the community, forbids the 
 commitment of the trust to a small number of persons. 
 
 These considerations seem alone sufficient to authorize 
 a conclusion that the Supreme Court would have been 
 an improper substitute for the Senate, as a court of 
 impeachments. There remains a further consideration, 
 which will not a little strengthen this conclusion. It is 
 this: The punishment which may be the consequence of 
 conviction upon impeachment is not to terminate the 
 
 ' This makes singular reading in view of the present public estimation of 
 the supreme court, and the unequaled obedience, with or without respect, 
 accorded to its decisions. Yet on a consideration of the unpopularity of 
 the court after it had been federalized, when it rendered the Dred Scott 
 decision, and recently, when it was attacked in the platform of a party 
 which cast several million votes, it is obvious that the introduction into it, 
 as already indicated, of what have usually been party questions, by giv- 
 ing the court the power of trying impeachments, might have gone far to 
 destroy the very obedience above noted. — Ebitor, 
 
Hamilton] IMPEACHED SUBJECT TO TRIAL. 437 
 
 chastisement of the offender. After having been sen- 
 tenced to a perpetual ostracism from the esteem and 
 confidence, and honors and emoluments of his country, 
 he will still be liable to prosecution and punishment in 
 the ordinary course of law. Would it be proper that the 
 persons who had disposed of his fame and his most 
 valuable rights as a citizen in one trial should, in 
 another trial for the same offense, be also the disposers 
 of his life and his fortune? Would there not be the 
 greatest reason to apprehend that error in the first 
 sentence would be the parent of error in the second sen- 
 tence? That the strong bias of one decision would be 
 apt to overrule the influence of any new lights which 
 might be brought to vary the complexion of another 
 decision? Those who know anything of human nature 
 will not hesitate to answer these questions in the affirma- 
 tive, and will be at no loss to perceive that, by making 
 the same persons judges in both cases, those who might 
 happen to be the objects of prosecution would in a great 
 measure be deprived of the double security intended 
 them by a double trial. The loss of life and estate 
 would often be virtually included in a sentence which in 
 its terms imported nothing more thaji dismission from a 
 present, and disqualification for a future, office. It may 
 be said that the intervention of a jury in the second 
 instance would obviate the danger. But juries are fre- 
 quently influenced by the opinions of judges. They are 
 sometimes induced to find special verdicts, which refer 
 the main question to the decision of the court. Who 
 would be willing to stake his life and his estate upon the 
 verdict of a jury acting under the auspices of judges who 
 had predetermined his guilt? 
 
 Would it have been an improvement of the plan to 
 have united the Supreme Court with the Senate, in the 
 formation of the court of impeachments? This union 
 would certainly have been attended with several advan- 
 tages; but would they not have been overbalanced by 
 the signal disadvantage, already stated, arising from the 
 agency of the same judges in the double prosecution to 
 
438 DISTINCT COURT OF IMPEACHMENT. [No. 65 (64) 
 
 which the offender would be liable? To a certain extent 
 the benefits of that union will be obtained from making 
 the chief justice of the Supreme Court the president of the 
 court of impeachments, as is proposed to be done in the 
 plan of the convention; while the inconveniences of an 
 entire incorporation of the former into the latter will 
 be substantially avoided. This was perhaps the prudent 
 mean. I forbear to remark upon the additional pretext 
 for clamor against the judiciary which so considerable 
 an augmentation of its authority would have afforded. 
 
 Would it have been desirable to have composed the 
 court for the trial of impeachments of persons wholly 
 distinct from the other departments of the government? 
 There are weighty arguments, as well against, as in favor 
 of, such a plan. To some minds it will not appear a 
 trivial objection that it could tend to increase the com- 
 plex;ity of the political machine, and to add a new spring 
 to the government the utility of which would at best be 
 questionable. But an objection which will not be thought 
 by any unworthy of attention is this: a court formed 
 upon such a plan would either be attended with a heavy 
 expense or might in practice be subject to a variety of 
 casualities and inconveniences. It must either consist 
 of permanent officers, stationary at the seat of govern- 
 ment, and of course entitled to fixed and regular stipends, 
 or of certain officers of the State governments, to be 
 called upon whenever an impeachment was actually 
 depending. It will not be easy to imagine any third 
 mode materially different, which could rationally be pro- 
 posed. As the court, for reasons already given, ought 
 to be numerous, the first scheme will be reprobated b^ 
 every man who can compare the extent of the public 
 wants with the means of supplying them. The second 
 will be espoused with caution by those who will seriously 
 consider the difficulty of collecting men dispersed over 
 the whole Union; the injury to the innocent from the 
 procrastinated determination of the charges which might 
 be brought against them; the advantage to the guilty 
 from the opportunities which delay would afford to in- 
 
Hamilton] CONSTITUTION NOT INFA LISLE. 439 
 
 trigue and corruption; and in some cases the detriment 
 to the State from the prolonged inaction of men whose 
 firm and faithful execution of their duty might have 
 exposed them to the persecution of an intemperate or 
 designing majority in the House of Representatives. 
 Though this latter supposition may seem harsh, and might 
 not be likely often to be verified, yet it ought not to be 
 forgotten that the demon of faction will, at certain sea- 
 sons, extend his scepter over all numerous bodies of 
 men. 
 
 But though one or the other of the substitutes which 
 have been examined, or some other that might be devised, 
 should be thought preferable to the plan, in this respect, 
 reported by the convention, it will not follow that the 
 Constitution ought for this reason to be rejected. If 
 mankind were to resolve to agree in no institution of 
 government until every part of it had been adjusted to 
 the most exact standard of perfection, society would 
 soon become a general scene of anarchy and the world a 
 desert. Where is the standard of perfection to be found? 
 Who will undertake to unite the discordant opinions of a 
 whole community in the same judgment of it; and to 
 prevail upon one conceited projector to renounce his in- 
 fallible criterion for the fallible criterion of his more con- 
 ceited neighbor? To answer the purpose of the adversaries 
 of the Constitution they ought to prove, not merely that 
 particular provisions in it are not the best which might 
 have been imagined, but that the plan upon the whole is 
 bad and pernicious. 
 
 PUBLIUS. 
 
440 JUDICIARY POWER QF SENATE. [No. 66 (65) 
 
 No. 66 [65]. (Independent Journal, Ua.rOii.ijii.') Hamilton. 
 
 OBJECTION TO THE IMPEACHMENT POWER OF 
 THE SENATE BECAUSE A JUDICIAL POWER. 
 
 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 establish- 
 ment of an aristocracy — That the senate will judge too leniently officers 
 for whose confirmation it has voted — That the senators may be called 
 upon to try themselves for a corrupt use of the treaty-making power . 
 
 To the People of the State of New York : 
 
 A review of the principal objections that have appeared 
 against the proposed court for the trial of impeachments 
 will not improbably eradicate the remains of any unfavor- 
 able impressions which may still exist in regard to this 
 matter. 
 
 The first of these objections is that the provision in 
 question confounds legislative and judiciary authorities 
 See in the same body, in violation of that im- 
 
 II0.47. portant and well-established maxim which re- 
 
 quires a separation between the different departments 
 of power. The true meaning of this maxim has been 
 discussed and ascertained in another place and has 
 been shown to be entirely compatible with a partial 
 intermixture of those departments for special purposes, 
 preserving them, in the main, distinct and unconnected. 
 This partial intermixture is even, in some cases, not only 
 proper, but necessary to the mutual defense of the several 
 members of the government against each other. An 
 absolute or qualified negative in the executive upon the 
 acts of the legislative body is admitted by the ablest 
 adepts in political science to be an indispensable barrier 
 against the encroachments of the latter upon the former. 
 And it may, perhaps, with no less reason, be contended 
 that the powers relating to impeachments are, as before 
 intimated, an essential check in the hands of that body 
 upon the encroachments of the executive. The division 
 of them between the two branches of the legislature — 
 
Hamilton] C^SE OF NEW YORK SENATE. 441 
 
 assigning to one the right of accusing, to the other the 
 right of judging — avoids the inconvenience of making the 
 same persons both accusers and judges, and guards 
 against the danger of persecution from the prevalency 
 of a factious spirit in either of those branches. As the 
 concurrence of two-thirds of the Senate will be requisite 
 to a condemnation, the security to innocence from this 
 additional circumstance will be as complete as itself can 
 desire. 
 
 It is curious to observe with what vehemence this part 
 of the plan is assailed on the principle here taken notice 
 of, by men who profess to admire, without exception, the 
 constitution of this State; while that constitution makes 
 the Senate, together with the chancellor and judges of 
 the Supreme Court, not only a court of impeachments, 
 but the highest judicatory in the State in all causes, civil 
 and criminal. The proportion, in point of numbers, of 
 the chancellor and judges to the senators is so incon- 
 siderable that the judiciary authority of New York, in the 
 last resort, may with truth be said to reside in its Senate. 
 If the plan of the convention be in this respect charge- 
 able with a departure from the celebrated maxim which 
 has been so often mentioned, and seems to be so little 
 understood, how much more culpable must be the con- 
 stitution of New York!* 
 
 A second objection to the Senate as a court of impeach- 
 ments is that it contributes to an undue accumulation 
 of power in that body, tending to give to the govern- 
 ment a countenance too aristocratic. The Senate, it is 
 observed, is to have concurrent authority with the Execu- 
 tive in the formation of treaties and in the appointment 
 to ofiSces: if, say the objectors, to these prerogatives is 
 added that of deciding in all cases, of impeachment, it 
 will give a decided predominancy to senatorial influence. 
 To an objection so little precise in itself it is not easy 
 
 *In that of New Jersey, also, the final judiciary authority is in a 
 branch of the legislature. In New Hampshire, Massachusetts, Pennsyl- 
 vania, and South Carolina, one branch of the legislature is the court for 
 the trial of impeachments. — Publius. 
 
442 WEtGHT OF SENATE NOT TOO GREAT. [1^0.66(65) 
 
 to iind a very precise answer. Where is the measure or 
 criterion to which we can appeal for determining what 
 will give the Senate too much, too little, or barely the 
 proper degree of influence? Will it not be more safe, as 
 well as more simple, to dismiss such vague and uncertain 
 calculations; to examine each power by itself; and to 
 decide, on general principles, where it may be deposited 
 with most advantage and least inconvenience? 
 
 If we take this course, it will lead to a more intelligible, 
 if not to a more certain result. The disposition of the 
 See power of making treaties, which has obtained 
 
 No. 64. in the plan of the convention, will then, if I 
 
 mistake not, appear to be fully justified by the considera- 
 tions stated in a former number, and by others which will 
 See Nos. occur under the next head of our inquiries. 
 68 and 75. The expediency of the junction of the Senate 
 with the Executive in the power of appointing to offices 
 will, I trust, be placed in a light not less satisfactory, in 
 the disquisitions under the same head. And I flatter 
 myself the observations in my last paper must have gone 
 no inconsiderable way toward proving that it was not 
 easy, if practicable, to find a more fit receptacle for the 
 power of determining impeachments than that which has 
 been chosen. If this be truly the case, the hypothetical 
 dread of the too great weight of the Senate ought to be 
 discarded from our reasonings. 
 
 But this hypothesis, such as it is, has already been 
 refuted in the remarks applied to the duration in office 
 prescribed for the senators. It was by them shown, as 
 well on the credit of historical examples as from the 
 reason of the thing, that the most popular branch of 
 every government partaking of the republican genius, 
 by being generally the favorite of the people, will be as 
 generally a full match, if not an overmatch, for every 
 other member of the government. 
 
 But independent of this most active and operative 
 principle, to secure the equilibrium of the national House 
 of Representatives, the plan of the convention has pro- 
 vided in its favor several important counterpoises to the 
 
Hamilton] PO WER OF SENA TE IN A PPOIN TMENTS. 443 
 
 additional authorities to be conferred upon the Senate. 
 The exclusive privilege of originating money bills will 
 belong to the House of Representatives. The same 
 house will possess the sole right of instituting impeach- 
 ments: is not this a complete counterbalance to that of 
 determining them? The same house will be the umpire 
 in all elections of the President which do not unite the 
 suffrages of a majority of the whole number of electors; 
 a case which it cannot be doubted will sometimes, if not 
 frequently, happen. The constant possibility of the 
 thing must be a fruitful source of influence to that body. 
 The more it is contemplated, the more important will 
 appear this ultimate though contingent power of decid- 
 ing the competitions of the most illustrious citizens of the 
 Union for the first office in it. It would not perhaps be 
 rash to predict that, as a mean of influence, it will be found 
 to outweigh all the peculiar attributes of the Senate. 
 
 A if/5zV-(/ objection to the Senate as a court of impeach- 
 ments is drawn from the agency they are to have in the 
 appointments to office. It is imagined that they would 
 be too indulgent judges of the conduct of men in whose 
 official creation they had participated. The principle of 
 this objection would condemn a practice which is to be 
 seen in all the State governments, if not in all the gov- 
 ernments with which we are acquainted: I mean that of 
 rendering those who hold offices during pleasure de- 
 pendent on the pleasure of those who appoint them. 
 With equal plausibility might it be alleged in this case 
 that the favoritism of the latter would always be an 
 asylum for the misbehavior of the former. But that 
 practice, in contradiction to this principle, proceeds 
 upon the presumption that the responsibility of those 
 who appoint for the fitness and competency of the 
 persons on whom they bestow their choice, and 
 the interest they will have in the respectable and 
 prosperous administration of affairs, will inspire a 
 sufficient disposition to dismiss from a share in it 
 all such who by their conduct shall have proved 
 themselves unworthy of the confidence reposed in 
 
444 SENATE CAN ONLY RATIFY. [No. 66 (66) 
 
 them. Though facts may not always correspond with 
 this presumption, yet if it be in the main just, it must 
 destroy the supposition that the Senate, who will merely 
 sanction the choice of the Executive, should feel a bias 
 towards the objects of that choice strong enough to 
 blind them to the evidences of guilt so extraordinary as 
 to have induced the representatives of the nation to be- 
 come its accusers. 
 
 If any further arguments were necessary to evince the 
 improbabiUty of such a bias, it might be found in the 
 nature of the agency of the Senate in the business of 
 appointments. 
 
 It will be the office of the President to nominate and, 
 with the advice and consent of the Senate, to appoint. 
 See There will, of course, be no exertion of choice 
 
 No. 76. on the part of the Senate. They may defeat 
 
 one choice of the Executive and oblige him to make 
 another; but they cannot themselves choose — they can 
 only ratify or reject the choice of the President. They 
 might even entertain a preference to some other person 
 at the very moment they were assenting to the one pro- 
 posed, because there might be no positive ground of 
 opposition to him; and they could not be sure, if they 
 withheld their assent, that the subsequent nomination 
 would fall upon their own favorite, or upon any other 
 person in their estimation more meritorious than the 
 one rejected. Thus it could hardly happen that the 
 majority of the Senate would feel any other com- 
 placency towards the object of an appointment than 
 such as the appearances of merit might inspire and 
 the proofs of the want of it destroy.' 
 
 K fourth objection to the Senate, in the capacity of a 
 
 'Hamilton did not foresee such a condition as. the rejection o£ Van 
 Buren as minister to England in 1832 by a. vote arranged to make a tie 
 so that Vice President Calhoun could make his casting vote a matter of 
 personal " vengeance " against the President. Nor did Hamilton foresee 
 the development of the so-called "senatorial courtesy," by means of 
 which senators have been, able to obtain the rejection by the Senate of 
 many appointments, solely because the nominee was disliked or opposed 
 to the senator of his state. — Editor. 
 
Hamilton] JOINT AGENCY A PLEDGE. 445 
 
 court of impeachments, is derived from its union witii 
 tiie Executive in the power of malcing treaties. This, it 
 has been said, would constitute the senators their own 
 judges, in every case of a corrupt or perfidious execution 
 of that trust. After having combined with the Executive 
 in betraying the interests of the nation in a ruinous 
 treaty, what prospect, it is asked, would there be of their 
 being made to suffer the punishment they would deserve, 
 when they were themselves to decide upon the accusa- 
 tion brought against them for the treachery of which 
 they have been guilty? 
 
 This objection has been circulated with more earnest- 
 ness and with greater show of reason than any other 
 which has appeared against this part of the plan; and yet 
 I am deceived if it does not rest upon an erroneous 
 foundation. 
 
 The security essentially intended by the Constitution 
 against corruption and treachery in the formation of 
 treaties is to be sought for in the numbers and char- 
 acters of those who are to make them. The joint 
 AGENCY of the Chief Magistrate of the Union, and of 
 two-thirds of the members of a body selected by the col- 
 lective wisdom of the legislatures of the several States, 
 is designed to be the pledge for the fidelity of the 
 national councils in this particular. The convention 
 might with propriety have meditated the punishment of 
 the Executive for a deviation from the instructions of 
 the Senate, or a want of integrity in the conduct of the 
 negotiations committed to him; they might also have 
 had in view the punishment of a few leading individuals 
 in the Senate, who should have prostituted their in- 
 fluence in that body as the mercenary instruments of 
 foreign corruption: but they could not, with more or 
 with equal propriety, have contemplated the impeach- 
 ment and punishment of two-thirds of the Senate, con- 
 senting to an improper treaty, than of a majority of that 
 or of the other branch of the national legislature con- 
 senting to a pernicious or unconstitutional law — a prin- 
 ciple which, I believe, has never been admitted into 
 
446 SENATE READY TO PUNISH ABUSES. [No. 66 (66) 
 
 any government. How, in fact, could a majority in the 
 House of Representatives impeach themselves? Not 
 better, it is evident, than two-thirds of the Senate might 
 try themselves. And yet what reason is there that a 
 majority of the House of Representatives, sacrificing the 
 interests of the society by an unjust and tyrannical act 
 of legislation, should escape with impunity more than 
 two-thirds of the Senate, sacrificing the same interests in 
 an injurious treaty with a foreign power? The truth is 
 that in all such cases it is essential to the freedom and 
 to the necessary independence of the deliberations of 
 the body, that the members of it should be exempt 
 from punishment for acts done in a collective capacity; 
 and the security to the society must depend on the care 
 which is taken to confide the trust to proper hands, to 
 make it their interest to execute it with fidelity, and to 
 make it as difficult as possible for them to combine in 
 any interest opposite to that of the public good. 
 
 So far as might concern the misbehavior of the Execu- 
 tive in perverting the instructions or contravening the 
 views of the Senate, we need not be apprehensive of the 
 want of a disposition in that body to punish the abuse of 
 their confidence or to vindicate their own authority. 
 We may thus far count upon their pride, if not upon their 
 virtue. And so far even as might concern the corrup- 
 tion of leading members, by whose arts and influence the 
 majority may have been inveigled into measures odious 
 to the community, if the proofs of that corruption should 
 be satisfactory, the usual propensity of human nature will 
 warrant us in concluding that there would be commonly 
 no defect of inclination in the body to divert the pub- 
 lic resentment from themselves by a ready sacrifice of 
 the authors of their mismanagement and disgrace. 
 
 PUBLIUS. 
 
Hamilton] EXTRA VACANT FEARS OF EXECUTIVE. AA1 
 
 No. 67 [66]. {New York Packet, March 11, 1788.) Hamilton 
 
 THE EXECUTIVE DEPARTMENT. 
 
 Difficulties in constituting — Exaggeration of powers — Misrepresenta- 
 tion concerning vacancies in Senate by Cato. 
 
 To the People of the State of New York: 
 
 The constitution of the executive department of the 
 proposed government claims next our attention. 
 
 There is hardly any part of the system which could 
 have been attended with greater difficulty in the arrange- 
 ment of it than this; and there is, perhaps, none which 
 has been inveighed against with less candor or criticised 
 with less judgment. 
 
 Here the writers against the Constitution seem to have 
 taken pains to signalize their talent of misrepresentation. 
 Calculating upon the aversion of the people to monarchy, 
 they have endeavored to enlist all their jealousies and 
 apprehensions in opposition to the intended President of 
 the United States; not merely as the embryo, but as the 
 full-grown progeny, of that detested parent. To estab- 
 lish the pretended affinity, they have not scrupled to 
 draw resources even from the regions of fiction. The 
 authorities of a magistrate, in few instances greater, in 
 some instances lesis, than those of a governor of New 
 York, have been magnified into more than royal preroga- 
 tives. He has been decorated with attributes superior in 
 dignity and splendor to those of a king of Great Britain. 
 He has been shown to us with the diadem sparkling on 
 his brow and the imperial purple flowing in his train. He 
 has been seated on a throne surrounded with minions and 
 mistresses, giving audience to the envoys of foreign 
 potentates, in all the supercilious pomp of majesty. The 
 images of Asiatic despotism and voluptuousness have 
 scarcely been wanting to crown the exaggerated scene. 
 We have been taught to tremble at the terrific visages of 
 murdering janizaries, and to blush at the unveiled mys- 
 teries of a future seraglio. 
 
44^ PrBSIDeMCY UNJUSTLV ASSAILED. [No. 67 (66) 
 
 Attempts so extravagant as these to disfigure or, it 
 might rather be said, to metamorphose the object, render 
 it necessary to take an accurate view of its real nature and 
 form: in order as well to ascertain its true aspect and 
 genuine appearance as to unmask the disingenuity 
 and expose the fallacy of the counterfeit resemblances 
 which have been so insidiously, as well .as industriously, 
 propagated. 
 
 In the execution of this task, there is no man who 
 would not find it an arduous effort either to behold with 
 moderation or to treat with seriousness the devices, not 
 less weak than wicked, which have been contrived to per- 
 vert the public opinion in relation to the subject. They 
 so far exceed the usual though unjustifiable licenses of 
 party artifice that, even in a disposition the most candid 
 and tolerant, they must force the sentiments which favor 
 an indulgent construction of the conduct of political ad- 
 versaries to give place to a voluntary and unreserved in- 
 See dignation. It is impossible not to bestow the 
 
 No. 69. imputation of deliberate imposture and decep- 
 
 tion upon the gross pretense of a similitude between a 
 king of Great Britain and a magistrate of the character 
 marked out for that of the President of the United States. 
 It is still more impossible to withhold that imputation 
 from the rash and barefaced expedients which have been 
 employed to give success to the attempted imposition. 
 
 In one instance, which I cite as a sample of the general spirit, 
 the temerity has proceeded so far as to ascribe to the President of 
 the United States a power which by the instrument reported is ex- 
 pressly allotted to the Executives of the individual States. I mean 
 the power of filling casual vacancies in the Senate. 
 
 This bold experiment upon the discernment of his countrymen 
 has been hazarded by a writer who (whatever may be his real 
 merit) has had no inconsiderable share in the applauses of his 
 party ; * ' and who, upon this false and unfounded suggestion, has 
 built a series of observations equally false and unfounded. Let 
 him now be confronted with the evidence of the fact, and let him, 
 
 *See Cato, No. V. — Publius. 
 
 ' See Ford's " Essays on the Constitution," p. 268. — Editor. 
 
Hamilton] VACANCIES IN SENATE. 449 
 
 if he be able, justify or extenuate the shameful outrage he has 
 offered to the dictates of truth and to the rules of fair deahng. 
 
 The second clause of the second section of the second article 
 empowers the President of the United States " to nominate, and 
 by and with the advice and consent of the Senate, to appoint am- 
 bassadors, other public ministers and consuls, judges of the Su- 
 preme Court, and all other officers of the United States whose 
 appointments are not in the Constitution otherwise provided for, 
 and ivhich shall be established by law." Immediately after this 
 clause follows another in these words : " The President shall have 
 power to fill up all vacancies that may happen during the recess of 
 the Senate, by granting commissions which shall expire at the end 
 of their next session." It is from this last provision that the pre- 
 tended power of the President to fill vacancies in the Senate has 
 been deduced. A slight attention to the connection of the clauses, 
 and to the obvious meaning of the terras, will satisfy us that the 
 deduction is not even colorable. 
 
 The first of these two clauses, it is clear, only provides a mode 
 for appointing such officers, " whose appointments are not other- 
 wise provided for in the Constitution, and which shall be estab- 
 lished by law." Of course it cannot extend to the appointments of 
 senators, whose appointments are otherwise provided for in the 
 Constitution,* and who are established by the Constitution, and 
 will not require a future establishment by law. This position will 
 hardly be contested. 
 
 The last of these two clauses, it is equally clear, cannot be 
 understood to comprehend the power of filling vacancies in the 
 Senate, for the following reasons : First. The relation in which 
 that clause stands to the other, which declares the general mode 
 of appointing officers of the United States denotes it to be nothing 
 more than a supplement to the other for the purpose of establishing 
 an auxiliary method of appointment in cases to which the general 
 method was inadequate. The ordinary power of appointment is 
 confined to the President and Senate jointly, and can therefore only 
 be exercised during the session of the Senate ; but as it would have 
 been improper to oblige this body to be continually in session for 
 the appointment of officers, and as vacancies might happen in 
 their recess, which it might be necessary for the public service to 
 fill without delay, the succeeding clause is evidently intended to 
 authorize the President, singly, to make temporary appointments 
 " during the recess of the Senate, by granting commissions which 
 shall expire at the end of their next session." Secondly. If this 
 
 * Article I. section 3, clause i. — Publius. 
 
45° NOT TO BE FILLED BV PRESIDENT. [No. 67 (66) 
 
 clause is to be considered as supplementary to the one which pre- 
 cedes, the vacancies of which it speaks must be construed to 
 relate to the " officers " described in the preceding one ; and this, 
 we have seen, excludes from its description the members of the 
 Senate. Thirdly. The time within which the power is to operate, 
 " during the recess of the Senate," and the duration of the ap- 
 pointments, " to the end of the next session " of that body, con- 
 spire to elucidate the sense of the provision which, if it had been 
 intended to comprehend senators, would naturally have referred 
 the temporary power of filling vacancies to the recess of the State 
 legislatures, who are to make the permanent appointments, and 
 not to the recess of the national Senate, who are to have no 
 concern in those appointments ; and would have extended the 
 duration in office of the temporary senators to the next session of 
 the legislature of the State, in whose representation the vacancies 
 had happened, instead of making it to expire at the end of the en- 
 suing session of the national Senate. The circumstances of the 
 [body authorized to make the permanent appointments would, of 
 course, have governed the modification of a power which related 
 to the temporary appointments ; and as the national Senate is the 
 body whose situation is alone contemplated in the clause upon 
 which the suggestion under examination has been founded, the 
 vacancies to which it alludes can only be deemed to respect those 
 officers in whose appointment that body has a concurrent agency 
 with the President. But lastly, the first and second clauses of the 
 third section of the first article not only obviate all possibility of 
 doubt, but destroy the pretext of misconception. The former 
 provides that " the Senate of the United States shall be composed 
 of two Senators from each State, chosen by the. legislature there- 
 of for six years " ; and the latter directs that, " if vacancies in 
 that body should happen by resignation or otherwise, during the 
 recess of the legislature of any State, the Executive thereof 
 may make temporary appointments until the next meeting of the 
 legislature, which shall then fill such vacancies." Here is an 
 express power given in clear and unambiguous terms to the 
 State Executives, to fill casual vacancies in the Senate by tem- 
 porary appointments ; which not only invalidates the supposition 
 that the clause before considered could have been intended to 
 confer that power upon the President of the United States, but 
 proves that this supposition, destitute as it is even of the merit 
 of plausibility, must have originated in an intention to deceive the 
 people, too palpable to be obscured by sophistry, too atrocious 
 to be palliated by hypocrisy. 
 
Kamtlton] APPOlMTMEMT OP PREStDEtft. 4^i 
 
 I have taken the pains to select this instance of misrepresenta- 
 tion, and to place it in a clear and strong light^ as an unequivocal 
 proof of the unwarrantable arts which are practiced to prevent a 
 fair and impartial judgment of the real merits of the Constitution 
 submitted to the consideration of the people. Nor have I scru- 
 pled, in so flagrant a case, to allow myself a severity of animad- 
 version httle 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 pros- 
 titute an attempt to impose on the citizens of America. 
 
 PUBLIUS. 
 
 No. 68 r67]- Qndependent Journal, March 12, 1788.) Hamilton. 
 
 METHOD OF APPOINTING THE PRESIDENT. 
 
 Tlie 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 be made by competent persons, as in the electoral 
 college ; to avoid tumult and disorder; to avoid intrigue and corruption; 
 to maintain the President independent of all but the people — All these 
 advantages here combined— Choice will seldom fall on one not qualified — 
 The choice of a Vice President by the people considered and approved. 
 
 To the People of the State of New York: 
 
 The mo.de of appointment of the Chief Magistrate of 
 the United States is almost the only part of the system, 
 of any consequence, which has escaped without severe 
 censure, or which has received the slightest mark of ap- 
 probation 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 further, and hesitate not 
 to affirm that, if the manner of it be not perfect, it is at 
 least excellent. It unites in an eminent degree all the 
 advantages the union of which was to be wished for." 
 
 * Vide Federal Farmer. — PuBLius. 
 
 ■ See Ford's " Pamphlets on the Constitution,'' p. 277. — Editor. 
 
 "^ Strangely enough this clause has actually proved itself one of the 
 weakest in practice, and has precipitated the most formidable crisis which, 
 short of actual rebellion, has come to our government. Even before its 
 
452 ELECTORS SHOULD BE FEW AND ABLE. [BTo. 68 (67; 
 
 It was desirable that the sense of the people should 
 operate in the choice of the person to^whom so important 
 See a trust was to be confided. ' This end will be 
 
 No. 64. answered by committing the right of making 
 
 it, not to any pre-established 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 judicious com- 
 bination of all the reasons and inducements which were 
 proper to govern their choice. A small number of per- 
 sons, selected by their fellow-citizens from the general 
 mass, will be most likely to possess the information and 
 discernment requisite to such complicated investiga- 
 tions.' 1 
 
 defectiveness had been indicated the clause was (after the adoption of the 
 first amendments) the second point in which amendment was suggested. 
 Both in 1797 (Journal of H. of R., ii. 642), and in 1798 (Journal of 
 Senate, ii. 430), motions were made in Congress to modify it. Another 
 series of amendments was offered on November 21, 1800, and on this 
 a committee made an unfavorable report on January 22, 1801. On 
 February 19, 1802, Mitchell of New York introduced resolutions, and 
 Hamilton (" Works," iv. 531) recommended the Federalists to vote for 
 them. Finally, in 1804, the Xllth Amendment was made % part of the 
 constitution, but it only remedied a comparatively minor matter ; from 
 that time constant attempts have been made to amend the present 
 clause, and a detailed account of these efforts is given in Johnson's 
 article on " Electors " in Lalor's "Cyclopedia of Political Science." — 
 Editor. 
 
 ' No other single miscarriage of the intention of the federal convention 
 equals the failure of the electoral college to make itself an electing, in 
 place of a mere registering, body. The college was successfully deprived 
 of this electoral power through the assumption by the House of Repre- 
 sentatives of the right of nominating the presidential candidates, — a power 
 later taken from the latter body by the people, but without restoring to 
 the electors the freedom of choice originally intended. In the first con- 
 test all the electors cast their votes for Washington, but how thoroughly 
 they were prepared to use their right of judgment was shown by their 
 votes for Vice President, which were cast for no less than eleven men. 
 In the election of 1792 four candidates for the Vice Presidency received 
 votes, though but two parties existed. The vote of the college was 
 divided in 1796 on thirteen candidates, and in 1800 on five. That the 
 elector still considered his vote free was shown in 1804 by one who wrote 
 to Jefferson offering his vote to the President in return for an office. The 
 
HftJnilton] CHOICE TO BE FREE FROM CABAL. 453 
 
 It was also peculiarly desirable to afford as little op- 
 portunity as possible to tumult and disorder. This evil 
 was not least to be dreaded in the election of a magis- 
 trate who was to have so important an agency in the ad- 
 ministration of the government as the President of the 
 United States. But the precautions which have been so 
 happily concerted in the system under consideration 
 promise an effectual security against this mischief. The 
 choice of several, to form an intermediate body of electors, 
 will be much less apt to convulse the community with any 
 extraordinary or violent movements than the choice of 
 one who was himself to be the final object of the public 
 wishes. And as the electors, chosen in each State, are to 
 assemble and vote in the State in which they are chosen, 
 this detached and divided situation will expose them 
 much less to heats and ferments, which might be com- 
 municated 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 
 ascendant in our councils. How could they better gratify 
 this than by raising a creature of their own to the chief 
 magistracy of the Union? But the convention have 
 guarded against all danger of this sort with the most 
 provident and judicious attention. They have not made 
 
 last sign of independence was in 1872, when the death of Greeley de- 
 prived the Democratic electors of the candidate for whom they were 
 bound to vote, and led them to scatter their votes as each elector chose. 
 When, in 1876, it was generally believed that Tilden was elected, 
 though the accepted electoral vote stood as 185 to 184 in favor of 
 Hayes, it was rumored that Mr. James Russell Lowell, who was a 
 republican elector for Massachusetts, intended to prevent fraud by voting 
 for Tilden. But so thoroughly had the principle of the fathers been lost, 
 and so useless a fifth wheel had the college become, that even a man of so 
 much personal and party independence as Mr. Lowell could not finally 
 bring himself to fulfill the very purpose for which as a member of the 
 body he had been chosen. — Editor. 
 
454 ELECTORS PREE OF SINISTER BIAS. 1110.68(6'!') 
 
 the appointment of the President to depend on any pre- 
 existing bodies of men, who might be tampered with 
 beforehand to prostitute their votes; but they Have 
 referred it in the first instance to an immediate act of 
 the people of America, to be exerted in the choice of 
 persons for the temporary and sole purpose of making 
 the appointment. And they have excluded from eligi- 
 bility to this trust all those who from situation might 
 be suspected of too great devotion to the President in 
 office. No senator, representative, or other person hold- 
 ing a place of trust or profit under the United States, can 
 be of the numbers of the electors. Thus, without cor- 
 rupting 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 con- 
 clusion of it. The business of corruption, when it is to 
 embrace so considerable a number of men, requires time 
 as well as means. Nor would it be found easy suddenly 
 to embark them, dispersed as they would be over thir- 
 teen States, in any combinations founded upon motives 
 which, though they could not properly be denominated 
 corrupt, might yet be of a nature to mislead them from 
 their duty. 
 
 Another and no less important desideratum was that 
 the Executive should be independent for his continuance 
 in office on all but the people themselves. He might 
 otherwise be tempted to sacrifice his duty to his com- 
 plaisance for those whose favor was necessary to the 
 duration of his official consequence. This advantage will 
 also be secured by making his re-election to depend on 
 a special body of representatives, deputed by the society 
 for the single purpose of making the important choice. 
 
 All these advantages will happily combine in the plan 
 devised by the convention; which is that the people of 
 each State shall choose a number of persons as electors, 
 equal to the number of senators and representatives of 
 such State in the national government, who shall assemble 
 
Hamilton] PROBABLE VIRTUE OF PRESIDENT. 455 
 
 within the State and vote for some fit person as Presi- 
 dent. 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 center 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 contin- 
 gency, the House of Representatives shall select out of 
 the candidates who shall have the five highest number of 
 votes, the man who in their opinion may be best qualified 
 for the office.' 
 
 The process of election affords a moral certainty that 
 the office of President will never fall to the lot of any 
 man who is not in an eminent degree endowed with the 
 requisite qualifications. Talents for low intrigue, and 
 the little arts of popularity, may alone suffice to elevate 
 a man to the first honors in a single State; but it will 
 require other talents, and a different kind of merit, to 
 establish him in the esteem and confidence of the whole 
 Union, or of so considerable a portion of it as would be 
 necessary to make him a successful candidate for the 
 distinguished office of President of the United States. 
 It will not be too strong to say that there will be a 
 constant probability of seeing the station filled by 
 characters pre-eminent for ability and virtue. And this 
 will be thought no inconsiderable recommendation of the 
 Constitution, by those who are able to estimate the 
 share which the executive in every government must 
 necessarily have in its good or ill administration. 
 Though we cannot acquiesce in the political heresy " of 
 the poet who says: 
 
 " For forms of government let fools contest, — 
 That which is best administered is best," — 
 
 yet we may safely pronounce that the true test of a good 
 
 ' A power exercised three times, twice for President (1801 and 1825) 
 and once for Vice President (1837). — Editor. 
 ' This stanza had just been quoted in a letter of Brutus. — Editor. 
 
45^ APPOINTMENT OF VICE PRESIDENT. [No.68(67) 
 
 government is its aptitude and tendency to produce a 
 good administration. 
 
 The Vice President is to be chosen in the same 
 manner with the President; with this difference, that 
 the Senate is to do, in respect to the former, what is to 
 be done by the House of Representatives, in respect to 
 the latter. 
 
 The appointment of an extraordinary person as Vice 
 President has been objected to as superfluous, if not 
 mischievous. It has been alleged that it would have 
 been preferable to have authorized the Senate to elect- 
 out of their own body an officer answering that descrip- 
 tion. But two considerations seem to justify the ideas 
 of the convention in this respect. One is that, to secure 
 at all times the possibility of a definite resolution of the 
 body, it is necessary that the President should have only 
 a casting vote. And to take the senator of any State 
 from his seat as senator, to place him in that of Presi- 
 dent of the Senate, would be to exchange, in regard to 
 the State from which he came, a constant for a contin- 
 gent vote. The other consideration is that, as the Vice 
 President hiay occasionally become a substitute for the 
 President in the supreme executive magistracy, all the 
 reasons which recommend the mode of election pre- 
 scribed for the one apply with great if not with equal 
 force to the manner of appointing the^ other. It is 
 remarkable that in this, as in most other instances, the 
 objection which is made would lie against the constitu- 
 tion of this State. We have a Lieutenant Governor, 
 chosen by the people at large, who presides in the Senate 
 and is the constitutional substitute for the Governor, in 
 casualties similar to those which would authorize the 
 Vice President to exercise the authorities and discharge 
 the duties of the President. Publius. 
 
Hamilton] PRESIDENT AND OTHER EXECUTIVES. 457 
 
 No. 69 [68]. Qf'w York Packet, March 14, 1788.) Hamilton. 
 
 COMPARISON OF THE PRESIDENT WITH 
 OTHER EXECUTIVES AS TO POWERS. 
 
 A single person — Compared with the king of Great Britain and the 
 governor of New York — Elected for four years, and re-eligible — 
 Further comparison with the same executives — Liable to impeachment, 
 removal from office, 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 the governor of Massa- 
 , chusetts — Commander-in-chief of the army and navy of the United 
 States — Compared again as above, and also with the governors of New 
 Hampshire and Massachusetts — Pardoning power — Compared as above — 
 Treaty-making power — Compared as above — General review and com- 
 parison of executive powers. 
 
 To the People of the State of New York: 
 
 I proceed now to trace the real characters of the pro- 
 posed Executive, as they are marked out in the plan of 
 the convention. This will serve to place in a strong 
 light the unfairness of the representations which have 
 been made in regard to it. 
 
 The first thing which strikes our attention is that the 
 executive authority, with few exceptions, is to be vested 
 in a single magistrate. This will scarcely, however, be 
 considered as a point upon which any comparison can be 
 grounded ; for if, in this particular, there be a resemblance 
 to the king of Great Britain, there is not less a resem- 
 blance 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 lox four years; and is 
 to be re-eligible as often as the people of the United 
 States shall think him worthy of their confidence. In 
 these circumstances there is a total dissimilitude between 
 him and a king of Great Britain, who is an hereditary 
 monarch, possessing the crown as a patrimony descend- 
 ible to his heirs forever; but there is a close analogy 
 between him and a governor of New York, who is elected 
 for three years, and is re-eligible without limitation or 
 
458 KING OF GREAT BRITAIN. [No. 89 (68) 
 
 intermission. If we consider how much less time would 
 be requisite for establishing a dangerous influence in. 
 a single State than for establishing a like influence; 
 throughout the United States, we must conclude that a 
 duration oi four years for the Chief Magistrate of the j 
 Union is a degree of permanency far less to be dreaded 
 in that office than a duration of three years for a cor- 
 responding office in a single State. 
 
 The President of the United States would be liable to 
 be impeached, tried, and upon conviction of treason, 
 bribery, or other high crimes or misdemeanors, removed 
 from office; and would afterwards be liable to prosecution 
 and punishment in the ordinary course of law. The per- 
 son of the king of Great Britain is sacred and inviolable; 
 there is no constitutional tribunal to which he is amen- 
 able; no punishment to which he can be subjected with- 
 out involving the crisis of a national revolution. In this 
 delicate and important circumstance of personal respon- 
 sibility, the President of Confederated America would 
 stand upon no better ground than a governor of New 
 York, and upon worse ground than the governors of 
 Maryland and Delaware. 
 
 The President of the United States is to have power to 
 return a bill, which shall have passed the two branches of 
 the legislature, for reconsideration; and the bill so re- 
 turned is to become a law, if, upon that reconsideration, 
 ggg it be approved by two-thirds of both houses. 
 
 No. 73. The king of Great Britain, on his part, has an 
 
 absolute negative upon the acts of the two houses of 
 Parliament. The disuse of that power for a considerable 
 time past does not affect the reality of its existence, and 
 is to be ascribed wholly to the crown's having found the 
 means of substituting influence to authority, or the art 
 of gaining a majority in one or the other of the two 
 houses to the necessity of exerting a prerogative which 
 could seldom be exerted without hazarding some degree 
 of national agitation.' The qualified negative of the 
 
 ' According to Mr. Bryce, the last instance " of the use of the ' veto 
 power' in England was by Queen Anne in 1707 on a Scotch mill bill," 
 
Hamilton] COMPAklSOM OP POWEk. 459 
 
 President differs widely from this absolute negative of 
 the British sovereign, and tallies exactly with the re- 
 visionary authority of the council of revision of this 
 State, of which the governor is a constituent parJJ In 
 this respect the power of the President would exceed that 
 of the governor of New York, because the former would 
 possess singly what the latter shares with the chancellor 
 and judges; but it would be precisely the same with that 
 of the governor of Massachusetts, whose constitution 
 as to this article seems to have been the original from 
 which the convention have copied. 
 
 The President is to be the "commander-in-chief of the 
 army and navy of the United States, and of the militia 
 of the several States, when called into the actual service 
 of the United States. He is to have power to grant 
 reprieves and pardons for offenses against the United 
 States, except in cases of impeachment; to recommend to 
 the consideration of Congress such measures as he shall 
 judge necessary and expedient; to convene, on extraor- 
 dinary occasions, both houses of the legislature, or 
 either of them, and, in case of disagreement between 
 them with respect to the time of adjournment, to adjourn 
 theni to such time as he shall think proper; to take care 
 that the laws be faithfully executed; and to commission 
 all officers of the United States." In most of these par- 
 ticulars the power of the President will resemble equally 
 that of the king of Great Britain and of the governor of 
 New York. The most material points of difference are 
 these: First. The President will have only the occa- 
 sional 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 
 
 In Tod's "Parliamentary Government in the English Colonies" (ii. p. 
 319), the author says that in 1858 changes in a private railway bill were 
 compelled by an intimation to its promoters that, if these changes were 
 not made, the royal power of rejection would be exercised. — Editor. 
 
46o POWERS OVER ARMY AND NAVY. [No. 68(68) 
 
 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 Con- 
 federacy; while that of the British king extends to the 
 declaring of war and to the raising and regulating of fleets 
 and armies; all of which, by the Constitution under con- 
 sideration, would appertain to the legislature.* The 
 governor of New York, on the other hand, is by the con- 
 stitution 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 com- 
 manders-in-chief as well of the army as navy; and it may 
 well be a question, whether those of New Hampshire and 
 Massachusetts, in particular, do not, in this instance, 
 confer larger powers upon their respective governors 
 than could be claimed by a President 'of the United 
 States. Thirdly. The power of the President in respect 
 to pardons would extend to all cases except those of 
 impeachment. The governor of New York may pardon in 
 all cases, even in those of impeachment, except for 
 treason and murder. Is not the power of the governor 
 in this article, on a calculation of political consequences, 
 greater than that of the President? All conspiracies 
 and plots against the government which have not been 
 
 * A writer in a Pennsylvania paper, under the signature of Tamony, 
 has asserted that the king of Great Britain owes his prerogative as com- 
 mander-in-chief to an annual mutiny bill. The truth is, on the contrary, 
 that his prerogative, in this respect, is immemorial, and was only dis- 
 puted, " contrary to all reason and precedent," as Blackstone, vol. i. p. 
 262, expresses it, by the Long Parliament of Charles I. ; but by the stat- 
 ute the 13th of Charles II., chap. 6, it was declared to be in the king 
 alone, for that the sole supreme government and command of the militia 
 within his Majesty's realms and dominions, and of all forces by sea and 
 land, and of all forts and places of strength, ever was and is the un- 
 doubted right of his iVIajesty and his royal predecessors, kings and 
 queens of England, and that both or either house of Parliament cannot 
 nor ought to pretend to the same. — PUBLIUS. 
 
Hamilton] PUNISHMENT OF TREASON. 461 
 
 matured into actual treason may be screened from pun- 
 ishment of every kind, by the interposition of the prerog- 
 ative of pardoning. If a governor of New York, therefore, 
 should be at the head of any such conspiracy, until the 
 design had been ripened into actual hostility he could 
 insure his accomplices and adherents an entire impunity. 
 A President of the Union, on the other hand, though he 
 may even pardon treason when prosecuted in the ordi- 
 nary course of law, could shelter no offender in any 
 degree from the effects of impeachment and conviction. 
 Would not the prospect of a total indemnity for all the 
 preliminary steps be a greater temptation to undertake 
 and persevere in an enterprise against the public liberty 
 than the mere prospect of an exemption from death and 
 confiscation, if the final execution of the design, upon 
 an actual appeal to arms, should miscarry? Would this 
 last expectation have any influence at all, when the prob- 
 ability was computed that the person who was to afford 
 that exemption might himself be involved in the conse- 
 quences of the measure and might be incapacitated by 
 his agency in it from affording the desired impunity? The 
 better to judge of this matter, it will be necessary to 
 recollect that by the proposed Constitution the offense 
 of treason is limited "to levying war upon the United 
 States, and adhering to their enemies, giving them aid 
 and comfort," and that by the laws of New York it is con- 
 fined within similar bounds. Fourthly. The President 
 can only adjourn the national legislature in the single 
 case of disagreement about the time of ' adjournment. 
 The British monarch may prorogue or even dissolve the 
 Parliament. The governor of New York may also pro- 
 rogue the legislature of this State for a limited time ; a 
 power which, in certain situations, may be employed to 
 very important purposes. 
 
 The President is to have power, with the advice and 
 consent of the Senate, to make treaties, provided two- 
 ggg thirds of the senators present concur. The 
 
 No. 68. king of Great Britain is the sole and absolute 
 
 representative of the nation in all foreign transactions. 
 
4^2 CROWN CA!^ MAKE TREATmS. 1^0.69(68) 
 
 He can of his own accord make treaties of peace, com- 
 merce, 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 rati- 
 fication 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 acquainted with its Constitution, knows as an 
 established fact that the prerogative of making treaties 
 exists in the crown in its utmost plentitude; and that the 
 compacts entered into by the royal authority have the 
 most complete legal validity and perfection, independent 
 of any other sanction." The Parliament, it is true, is 
 sometimes seen employing itself in altering the existing 
 laws to conform them to the stipulations in a new treaty; 
 and this may have possibly given birth to the imagina- 
 tion that its co-operation was necessary to the obligatory 
 efficacy of the treaty. But this parliamentary interposi- 
 tion proceeds from a different cause: from the necessity 
 of adjusting a most artificial and intricate system of rev- 
 
 *Vide Blackstone's "Commentaries," vol. i. p. 257. — PUBLIUS. 
 
 ' " Recent discussions have also brought into curious prominence an- 
 other part of the constitution. I said in this book that it would very 
 much surprise people if they were only told how many things the 
 queen could do without consulting Parliament, and it certainly has so 
 proved; for when the queen abolished purchase in the army by an act of 
 prerogative (after the Lords had rejected the bill for doing so), there was 
 a great and general astonishment. But this is nothing to what the queen 
 can by law do without consulting Parliament. Not to mention other 
 things, she could disband the army (by law she cannot engage more than 
 a certain number of men, but she is not obliged to engage any men); she 
 could dismiss all the officers, from the general-commanding-in-chief 
 downward; she could dismiss all the sailors, too; she could sell off all our 
 ships-of-war and all our naval stores; she could make a peace by the sac- 
 rifice of Cornwall, and begin a war for the conquest of Brittany. She 
 could make every citizen in the United Kingdom, male or female, a 
 peer; she could make every parish in the United Kingdom a ' university'; 
 she could dismiss most of the civil servants; she could pardon all of- 
 fenders. In a word, the queen could by prerogative upset all the action 
 of civil government within the government, could disgrace the nation by 
 a bad war or peace, and could, by disbanding our forces, whether land or 
 sea, leave us defenseless against foreign nations." — Bagehot's "English 
 Constitution." — Editor. 
 
Hamilton] AMBASSADORS AND MINISTERS. 4^3 
 
 enue and commercial laws to the changes made in them 
 by the operation of the treaty, and of adapting new pro- 
 visions and precautions to the new state of things, to 
 keep the machine from running into disorder. In this 
 respect, therefore, there is no comparison between the 
 intended power of the President and the actual power of 
 the British sovereign. The one can perform alone what 
 the other can do only with the concurrence of a branch 
 of the legislature. It must be admitted that in this 
 instance the power of the federal Executive would ex- 
 ceed that of any State Executive. But this arises nat- 
 urally from the sovereign power which relates to treaties. 
 If the Confederacy were to be dissolved, it would become 
 a question whether the Executives of the several States 
 were not solely invested with that delicate and important 
 prerogative. 
 
 The President is also to be authorized to receive 
 ambassadors and other public ministers. This, though 
 it has been a rich theme of declamation, is more a matter 
 of dignity than of authority. It is a circumstance which 
 will be without consequence in the administration of the 
 government; and it was far more convenient that it 
 should be arranged in this manner than that there 
 should be a necessity of convening the legislature, or 
 one of its branches, upon every arrival of a foreign 
 minister, though it were merely to take the place of a 
 departed predecessor. 
 
 The President is to nominate and, witk the advice and 
 consent of the Senate, to appoint ambassadors and other 
 public ministers, judges of the Supreme Court, and in 
 general all officers of the United States established by 
 law, and whose appointments are not otherwise provided 
 for by the Constitution. The king of Great Britain is 
 emphatically and truly styled the fountain of honor. He 
 not only appoints to all offices, but can create offices. 
 He can confer titles of nobility at pleasure, and has the 
 disposal of an immense number of church preferments. 
 There is evidently a great inferiority in the power of the 
 President, in this particular, to that of the British king; 
 
464 POWERS OF GOVERNOR OF NEW YORK. [No. 69 (68) 
 
 nor is it equal to that of the governor of New York, if 
 we are to interpret the meaning of the constitution of 
 the State by the practice which has obtained under 
 it. The power of appointment is with us lodged in a 
 council composed of the governor and four members 
 of the Senate, chosen by the Assembly. The governor 
 claims, and has frequently exercised, the right of nomi- 
 nation, and is entitled to a casting vote in the appoint- 
 ment.' If he really has the right of nominating, his 
 authority is in this respect equal to that of the Presi- 
 dent, 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 govern- 
 ment 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 
 necessarily attend the mode of appointment by the 
 President and an entire branch of the national legislature 
 with the privacy in the mode of appointment by the 
 governor of New York, closeted in a secret apartment 
 with at most four, and frequently with only two persons; 
 and if we at the same time consider how much more 
 easy it must be to influence the small number of which a 
 council of appointment consists than the considerable 
 number of which the national Senate would consist, we 
 cannot hesitate to pronounce that the power of the chief 
 magistrate oif this State, in the disposition of" oflfices, 
 must in practice be greatly superior to that of the 
 Chief Magistrate of the Union. 
 
 Hence it appears that, except as to the concurrent 
 authority of the President in the article of treaties, it 
 
 * Candor, however, demands an acknowledgment that I do not think 
 the claim of the governor to a right of nomination \vell founded. Yet 
 it is always justifiable to reason from the practice of a government, till 
 its propriety has been constitutionally questioned. And independent of 
 this claim, when we take into view the other considerations, and pursue 
 them through all •their consequences, we shall be inclined to draw much 
 the same conclusion. — PUBLIUS. 
 
 ' A full history of the New York system of appointments will be 
 found in Street's "Council of Revision of the State of New York,"— 
 Editor. 
 
Hamilton] PKESIDENT AND KING. 465 
 
 would be difficult to determine whether that magistrate 
 would, in the aggregate, possess more or less power 
 than the governor of New York. And it appears, yet 
 more unequivocally, that there is no pretense for the 
 parallel which has been attempted between him and the 
 king of Great Britain. But to render the contrast in 
 this respect still more striking, it may be of use to throw 
 the principal circumstances of dissimilitude into a closer 
 group. 
 
 The President of the United States would be an officer 
 elected by the people for four years; the king of Great 
 Britain is a perpetual and hereditary prince. The one 
 would be amenable to personal punishment and disgrace; 
 the person of the other is sacred and inviolable. The 
 one would have a qualified negative upon the acts of the 
 legislative body; the other has an absolute negative. 
 The one would have a right to conimand the military 
 and naval forces of the nation; the other, in addition to 
 this right, possesses that of declaring war and of raising 
 and regulating fleets and armies by his own authority. 
 The one would have a concurrent power with a branch 
 of the legislature in the formation of treaties; the other 
 is the sole possessor of the power of making treaties. The 
 one would have a like concurrent authority in appoint- 
 ing to offices; the other is the sole author of all appoint- 
 ments. The one can confer no privileges whatever; 
 the other can make denizens of aliens, noblemen of 
 commoners; can erect corporations with all the rights 
 incident to corporate bodies. The one can prescribe 
 no rules concerning the commerce or currency of the 
 nations; the other is in several respects the arbiter of 
 commerce, and in this capacity can establish markets and 
 fairs, can regulate weights and measures, can lay em- 
 bargoes for a limited time, can coin money, can authorize 
 or prohibit the circulation of foreign coin. The one has 
 no particle of spiritual jurisdiction; the other is the 
 supreme head and governor of the national church! 
 What answer shall we give to those who would persuade 
 us that things so unlike resemble each other? The same 
 
466 ENERGY WANTED IN EXECUTIVE. [No. 70 (69) 
 
 that ought to be given to those who tell us that a govern- 
 ment, the whole power of which would be in the hands 
 of the elective and periodical servants of the people, is 
 an aristocracy, a monarchy, and a despotism. 
 
 PUBLIUS. 
 
 No. 70 [69]. (/»ifej>««&«< /»«?-««/, March 15, 1788.) Hamilton. 
 ADVANTAGE OF A SINGLE EXECUTIVE. 
 
 A vigorous Executive consistent with republican government^— What 
 constitutes a proper Executive — Unity — Reasons for this— Vesting execu- 
 tive authority in two or more magistrates — Restraining the Executive by 
 council — Objections to plurality and control by council enumerated. 
 
 To the People of the State of New York: 
 
 There is an idea, which is not without its advocates, 
 that a vigorous Executive is inconsistent with the genius 
 of republican government. The enlightened well-wishers 
 to this species of government must at least hope that the 
 supposition is destitute of foundation; since they can 
 never admit its truth, without at the same time admit- 
 / ting the condemnation of their own principles. Energy 
 I in the Executive is a leading character in the definition 
 ' of good government. It is essential to the protection 
 of the community against foreign attacks; it is not less 
 essential to the steady administration of the laws; to the 
 protection of property against those irregular and high- 
 handed combinations which sometimes interrupt the 
 ordinary course of justice; to the security of liberty 
 against the enterprises and assaults of ambition, of fac- 
 tion, and of anarchy. Every man the least conversant in 
 Roman story knows how often that republic was obliged 
 to take refuge in the absolute power of a single man, 
 under the formidable title of Dictator, as well against 
 the intrigues of ambitious individuals who aspired to the 
 tyranny and the seditions of whole classes of the com- 
 munity whose conduct threatened the existence of all 
 
Hamilton] INGREDIENTS FOR AN EXECUTIVE. 467 
 
 government, as against the invasions of external ene- 
 mies who menaced the conquest and destruction of 
 Rome. 
 
 There can be no need, however, to multiply arguments 
 or examples on this head. A feeble Executive implies a 
 feeble execution of the government. A feeble execution 
 is but another phrase for a bad execution; and a gov- 
 ernment 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 re- 
 ported by the convention? 
 
 The ingredients which constitute energy in the Exec- 
 utive are, first, unity; secondly, duration; thirdly, an 
 adequate provision for its support; fourthly, competent 
 powers. 
 
 The ingredients which constitute safety in the republi- 
 can sense are, first, a due dependence on the people; 
 secondly, a due responsibility. '■■ 
 
 Those politicians and statesmen who have been the 
 most celebrated for the soundness of their principles 
 and for the justice of their views have declared in favor 
 of a single Executive and a numerous legislature. They 
 have, with great propriety, considered energy as the most 
 necessary qualification of the former, and have regarded 
 this as most applicable to power in a single hand; while 
 they have, with equal propriety, considered the latter as 
 best adapted to deliberation and wisdom, and best calcu- 
 lated 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 dispatch will generally 
 characterize the proceedings of one man in a much more 
 eminent degree than the proceedings of any greater 
 
468 PLURALITY IN EXECUTIVE UNWISE. [Ho. 70 (69) 
 
 number; and in proportion as the number is increased 
 these qualities will be diminished. 
 
 This unity may be destroyed in two ways: either by 
 vesting the power in two or more magistrates of equal 
 dignity and authority; or by vesting it ostensibly in one 
 man, subject, in whole or in part, to the control and 
 co-operation of others, in the capacity of counselors to 
 bim. 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 objec- 
 tions, and may in most lights be examined in conjunction. 
 
 The experience of other nations will afford little instruction on 
 this head. As far, however, as it teaches anything, it teaches us 
 not to be enamored of plurality in the Executive. We have seen 
 that the Achaeans, on an experiment of two Praetors, were induced 
 to abolish one. The Roman history records many instances of 
 mischiefs to the republic from the dissensions between the Con- 
 suls, and between the military Tribunes who were at times sub- 
 stituted 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 astonish- 
 ment, 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 malfing a division of the government between them. The 
 patricians engaged in a perpetual struggle with the plebeians for 
 the preservation of their ancient authorities and dignities ; the 
 Consuls, who were generally chosen out of the former body, were 
 commonly united by the personal interest they had in the defense 
 of the privileges of their order. In addition to this motive of union, 
 
 * New York has no council except for the single purpose of appoint- 
 ing to offices; New Jersey has a council whom the governor may con- 
 sult. But I thinlc, from the terms of the constitution, their resolutions 
 do not bind him. — Publius. 
 
Hamilton] CA USES PERSONAL EMULA TION. 469 
 
 after the arms of the repubh'c 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 envi- 
 rons, the other taking the command in the more distant provinces. 
 This expedient must, no doubt, have had great influence in pre- 
 venting those collisions and rivalships which might otherwise have 
 embroiled the peace of the republic. 
 
 But quitting the dim light of historical research, attaching our- 
 selves 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 1 
 common enterprise or pursuit, there is always danger of; 
 difference of opinion. If it be a public trust or office, in \ 
 which they are clothed with equal dignity and authority, 
 there is peculiar danger of personal emulation and even 
 animosity. From either, and especially from all these 
 causes, the most bitter dissensions are apt to spring. 
 Whenever these happen they lessen the respectability, 
 weaken the authority, and distract the plans and opera- 
 tion of those whom they divide. If they should unfor- 
 tunately assail the supreme executive magistracy of a 
 country, consisting of a plurality of persons, they might 
 impede or frustrate the most important measures of the 
 government, in the most critical emergencies of the 
 State. And what is still worse, they might split the 
 community into the most violent and irreconcilable fac- 
 tions, adhering differently to the different individuals 
 who composed the magistracy.' 
 
 Men often oppose a thing merely because they have \ 
 had no agency in planning it, or because it may have been 
 planned by those whom they dislike. But if they have 
 
 ' The framers had had a recent object lesson of a plural executive in a 
 so-called " Committee of states," one of Jefferson's projects, which con- 
 sisted of one delegate from each state, to sit between the sessions of the 
 Continental Congress and manage certain of its affairs. An account of 
 this committee is in Jefferson's " Writings " (i. 76), where a similar expe- 
 rience in the French plural executive is also noticed. Perhaps the most 
 striking modern instance of Its evils is to be seen in the so-called bi- 
 partisan boards of our local politics. — EDITOR. 
 
47° DISSENSION HINDERS EXECUTIVE. LNo. 70(69) 
 
 been consulted and have happened to disapprove, oppo- 
 sition 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, benevo- 
 lent tempers have too many opportunities of remarking 
 with horror to what desperate lengths this disposition 
 is sometimes carried, and how often the great interests 
 of society are sacrificed to the vanity, to the conceit, and 
 to the obstinacy of individuals, who have credit enough 
 to make their passions and their caprices interesting to 
 mankind. Perhaps the question now before the public 
 may, in its consequences, afford melancholy proofs of 
 the effects of this despicable frailty, or rather detestable 
 vice, in the human character. 
 
 Upon the principles of a free government, inconven- 
 iences from the source just mentioned must necessarily 
 be submitted to in the formation of the legislature; but 
 it is unnecessary, and therefore unwise, to introduce 
 -them into the constitution of the Executive. It is here, 
 too, that they may be most pernicious. In the legisla- 
 ture promptitude of decision is oftener an evil than a 
 benefit. The differences of opinion, and the jarrings of 
 parties in that department of the government, though 
 they may sometimes obstruct salutary plans, yet often 
 promote deliberation and circumspection and serve to 
 check excesses in the majority. When a resolution, too, 
 is once taken, the opposition must be at an end. That 
 resolution is a law, and resistance to if punishable. But 
 no favorable circumstances palliate or atone for the dis- 
 advantages of dissension in the executive department. 
 Here they are pure and unmixed. There is no point at 
 which they cease to operate. They serve to embarrass 
 and weaken the execution of the plan or measure to 
 which they relate, from the first step to the final conclu- 
 sion of it. They constantly counteract those qualities in 
 the Executive which are the most necessary ingredients 
 in its composition, — vigor and expedition, — and this with- 
 
Hamilton] SHIFTING OF RESPONSIBILITY. 47 1 
 
 out any counterbalancing good. In the conduct of war, 
 in which the energy of the Executive is the bulwark of 
 the national security, everything would be to be appre- 
 hended from its plurality. 
 
 It must be confessed that these observations apply 
 with principal weight to the first case supposed — that is, 
 to a plurality of magistrates of equal dignity and authority; 
 a scheme, the advocates for which are not likely to form 
 a numerous sect; but they apply, though not with equal, 
 yet with considerable weight to the project of a council 
 whose concurrence is made constitutionally necessary to 
 the operations of the ostensible Executive. An artful 
 cabal in that council would be able to distract and to 
 enervate the whole system of administration. If no 
 such cabal should exist, the mere diversity of views and 
 opinions would alone be sufficient to tincture the exercise 
 of the executive authority with a spirit of habitual feeble- 
 ness and dilatoriness. ^( 
 
 But one of the weightiest objections to a plurality in? 
 the Executive, and which lies as much against the last as 
 the first plan, is that it tends to conceal faults and , 
 destroy responsibility. Responsibility is of two kinds — | 
 to censure and to punishment. The first is the more i 
 important of the two, especially in- an elective office. 
 Man, in public trust, will much oftener act in such a 
 manner as to render him unworthy of being any longer 
 trusted than in such a manner as to make him _obiiQ2iaiis 
 to legal punishment. But the multiplication~~of thei Ex- 
 ecutive adds to the difficulty of detection in either case. 
 It often becomes impossible, amidst mutual accusations, 
 to determine on whom the blame or the punishment of 
 a pernicious measure, or series of pernicious measures, 
 ought really to fall. It is shifted from one to another 
 with so much dexterity, and under such plausible appear- 
 ances, 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. 
 
47 2 CASE OF GOVERNOR OF NEW YORK. 1^0.70(69) 
 
 though we may clearly see upon the whole that there has 
 been mismanagement, yet it may be impracticable to 
 pronounce to whose account the evil which may have 
 been incurred is truly chargeable. 
 
 "I was overruled by my council. The council were 
 so divided in their opinions that it was impossible to 
 obtain any better resolution on the point." These and 
 similar pretexts are constantly at hand, whether true or 
 false. And who is there that will either take the trouble, 
 or incur the odium, of a strict scrutiny into the secret 
 springs of the transaction? Should there be found a citi- 
 zen zealous enough to undertake the unpromising task, 
 if there happen to be collusion between the parties con- 
 cerned, 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 appoint- 
 SeeNos. ment to offices — we have seen the mischiefs 
 69 and 74. of it in the view now under consideration. 
 Scandalous appointments to important offices have been 
 made. Some cases, indeed, have been so flagrant that 
 ALX PARTIES havc agreed in the impropriety of the thing. 
 When inquiry has bfeen made^ the blame has been laid by 
 the governor on the members of the council, who on 
 their part have charged it upon his nomination; while 
 the people remain altogether at a loss to determine by 
 whose influence their interests have been committed to 
 hands so unqualified and so manifestly improper. In 
 tenderness to individuals, I forbear to descend to par- 
 ticulars. 
 
 It is evident from these considerations that the plu- 
 rality of the Executive tends to deprive the people of the 
 two greatest securities they can have for the faithful 
 exercise of any delegated power: first, the restraints of 
 public opinion, which lose their efficacy, as well on 
 account of the division of the censure attendant on bad 
 measures among a number as on account of the uncer- 
 tainty on whom it ought to fall; and, secondly, the oppor- 
 
HamiUonl COUNCIL TO EXECUTIVE. 
 
 tunity of discovering with facility and clearness the 
 misconduct of the persons they trust, in order either 
 to their removal from office or to ' their actual punish- 
 ment in cases which admit' of it. 
 { In England the king is a perpetual magistrate ; and it is a 
 I maxim which has obtained for tlie 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- 
 I to the king a constitutional council who may be responsible to the 
 I nation for the advice they give. Without this, there would be no 
 responsibility whatever in the executive department — an idea in- 
 admissible in a free government. But even there the king is not 
 bound by the resolutions of his council, though they are answer- 
 able for the advice they give. He is the absolute master of his 
 own conduct in the exercise of his office, and may observe or dis- 
 regard the council given to him at his sole discretion. 
 
 But in a republic, where every magistrate ought to be person- 
 ally responsible for his behavior in office, the reason which in the 
 British Constitution dictates the propriety of a council not only 
 ceases to apply, but turns against the institution. In the monarchy 
 of Great Britain it furnishes a substitute for the prohibited respon- 
 sibility of the chief magistrate, which serves in some degree as 
 a hostage to the national justice for his good behavior. In the 
 American republic it would serve to destroy, or would greatly 
 diminish, the intended and necessary responsibility of the Chief 
 Magistrate himself. 
 
 The idea of a council to the Executive,' which has so 
 generally obtained in the State constitutions, has been 
 derived from that maxim of republican jealousy which 
 considers power as safer in the hands of a number of men 
 than of a single man. If the maxim should be admitted 
 to be applicable to the case, I should contend that the 
 advantage on that side would not counterbalance the 
 numerous disadvantages on the opposite side. But I do 
 not think the rule at all applicable to the executive power. 
 
 ' Tlie same result, so far as all its advantages go, without the disad- 
 vantage of loss of individual responsibility, has been attained by the presi- 
 dential cabinet, now a recognized if extra-constitutional part of our 
 government. Washington, who instituted it, tried to make the Vice 
 President a member as well. From the dissensions in the cabinets of 
 Washington, John Adams, and Jackson, the result of a council inde- 
 pendent of the President can be inferred. — Editor. 
 
474 UNITY OF EXECUTIVE SAFER. [No. 70 (69) 
 
 I clearly concur in opinion, in this particular, with a 
 writer whom the celebrated Junius pronounces to be 
 "deep, solid, and ingenious," that "the executive power 
 is more easily confined when it is one";* that it is far 
 more safe there should be a single object for the jealousy 
 and watchfulness of the people; and, in a word, that all 
 multiplication of the Executive is rather dangerous than 
 "friendly to liberty. 
 
 A little consideration will satisfy us that the species of 
 security sought for in the multiplication of the Executive 
 is unattainable. Numbers must be so great as to render 
 combination difficult, or they are rather a source of dan- 
 ger than of security. The united credit and influence of 
 several individuals must be more formidable to liberty 
 than the credit and influence of either of them separately. 
 When power, therefore, is placed in the hands of so small 
 a number of men as to admit of their interests and views 
 being easily combined in a common enterprise by an 
 artful leader, it becomes more liable to abuse, and more 
 dangerous when abused, than if it be lodged in the hands 
 of one man; who, from the very circumstance of his 
 being alone, will be more narrowly watched and more 
 readily suspected, and who cannot unite so great a mass 
 of influence as when he is associated with others. The 
 Decemvirs of Rome, whose name denotes their number, ■{■ 
 were more to be dreaded in their usurpation than any 
 ONE of them would have been. No person would think 
 of proposing an Executive much more numerous than 
 that body; from six to a dozen have been suggested for 
 the number of the council. The extreme of these num- 
 bers is not too great for an easy combination; and from 
 such a combination America would have more to fear 
 than from the ambition of any single individual. A 
 council to a magistrate who is himself responsible for 
 what he does are generally nothing better than a clog 
 upon his good intentions, are often the instruments and 
 accomplices of his bad, and are almost always a cloak to 
 his faults. 
 
 * De Lolme. — PuBHUs. \ Ten. — Publius. 
 
Hamilton] PRESIDENTAL TERM. 475 
 
 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 insti- 
 tution, the salaries of the members, who must be drawn 
 from their homes to reside at the seat of government, 
 would form an item in the catalogue of public expendi- 
 tures 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. 
 
 No. 71 [70]. (New York Packet, M.3XQhii,,i.iVi,:) Hamilton. 
 THE PRESIDENTIAL TERM OF OFFICE. 
 
 It affects 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 government necessary — 
 Shortness of term will lessen independence — The proposed term of four 
 years considered. 
 
 To the People of the State of New York: 
 
 Duration in office has been mentioned as the second 
 requisite to the energy of the executive authority. 
 This has relation to two objects: to the personal firm- 
 ness of the Executive Magistrate in the employment of 
 his- constitutional powers; and to the stability of the 
 system of administration which may have been adopted 
 under his auspices. With regard to the first, it must be 
 evident that, the longer the duration in office, the 
 greater will be the probability of obtaining so important 
 an advantage. It is a general principle of human nature 
 that a man will be interested in whatever he possesses, 
 in proportion to the firmness or precariousness of the 
 tenure by which he holds it; will be less attached to 
 what he holds by a momentary or uncertain title than to 
 
476 PLIANCY OF EXECUTIVE. INo. 71 (70) 
 
 what he enjoys by a durable or certain title; and, of 
 course, will be willing to risk more for the sake of the 
 one than for the sake of the other. This remark is not 
 less applicable to a political privilege, or honor, or trust 
 than to any article of ordinary property. The inference 
 from it is that a man acting in the capacity of chief 
 magistrate, under a consciousness that in a very short 
 time he must lay down his office, will be apt to feel him- 
 self too little interested in it to hazard any material 
 censure or perplexity from the independent exertion of 
 his powers, or from encountering the ill-humors, how- 
 ever transient, which may happen to prevail, either in a 
 considerable part of the society itself or even in a pre- 
 dominant faction in the legislative body. If the case 
 should only be that he might lay it down, unless con- 
 tinued by a new choice, and if he should be desirous of 
 being continued, his wishes, conspiring with his fears, 
 would tend still more powerfully to corrupt his integrity 
 or debase his fortitude. In either case, feebleness and 
 irresolution must be the characteristics of the station. 
 
 There are some who would be inclined to regard the 
 servile pliancy of the Executive to a prevailing current, 
 either in the community or in the legislature, as its best 
 recommendation. But such men entertain very crude 
 notions, as well of the purposes for which government 
 was instituted, as of the true means by which the public 
 happiness may be promoted. The republican principle 
 demands that the deliberate sense of the community 
 should govern the conduct of those to whom they intrust 
 the management of their affairs; but it does not require 
 an unqualified complaisance to every sudden breeze of 
 passion, or to every transient impulse which the people 
 may receive from the arts of men who flatter their prej- 
 udices to betray their interests. It is a just observation 
 that the people commpnly intend the public good. This 
 often applies to their very errors. But their good sense 
 would despise the adulator who should pretend that they 
 always reason right about the means of promoting it. 
 They know from experience that they sometimes err; 
 
Hamilton] FIRMNESS TOWARD LEGISLATIVE. 477 
 
 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 inter- 
 ests of the people are at, variance with their inclinations, 
 it is the duty of the persons whom they have appointed 
 to be the guardians of those interests to withstand the 
 temporary delusion, in order to give them time and 
 opportunity for more cool and sedate reflection. In- 
 stances 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 mag- 
 nanimity enough to serve them at the peril of their dis- 
 pleasure. 
 
 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 parti- 
 tion 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 pur- 
 pose 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 legis- 
 lative? Such a separation must be merely nominal and 
 incapable of producing the ends for which it was estab- 
 lished. It is one thing to be subordinate to the laws, 
 and another to be dependent on the legislative body. 
 The first comports with, the last violates,, the fundamen- 
 
478 INDEPENDENCE OF EXECUTIVE. [Ho 71 (70) 
 
 tal principles of good government; and, whatever may 
 be the forms of the Constitution, unites all power in the 
 See same hands. The tendency of the legislative 
 
 No. 47. authority to absorb every other has been 
 
 fully displayed and illustrated by examples in some pre- 
 ceding numbers. In governments purely republican, 
 this tendency is almost irresistible. The representatives 
 of the people in a popular asseipbly seem sometimes to 
 fancy that they are the people themselves, and betray 
 strong symptoms of impatience and disgust at the least 
 sign of opposition from any other quarter; as if the 
 exercise of its rights, by either the executive or judiciary, 
 were a breach of their privilege and an outrage to their 
 dignity. They often appear disposed to exert an imperi- 
 ous control over the other departments; and as they 
 commonly have the people on their side, they always act 
 with such momentum as to make it very difificult for the 
 other members of the government to maintain the bal- 
 ance of the Constitution. 
 
 It may perhaps be asked how the shortness of the 
 duration in office can affect the independence of the 
 Executive on the legislature, unless the one were pos- 
 sessed of the power of appointing or displacing the 
 other. One answer to this inquiry may be drawn from 
 the principle already remarked — that is, from the slender 
 interest a man is apt to take in a short-lived advantage, 
 and the little inducement it affords him to expose him- 
 self, on account of it, to any considerable inconvenience 
 or hazard. Another answer, perhaps more obvious, 
 though not more conclusive, will result from the con- 
 sideration of the influence of the legislative body over 
 the people; which might be employed to prevent the 
 re-election of a man who, by an upright resistance to any 
 sinister project of that body, should have made himself 
 obnoxious to its resentment. 
 
 It may be asked also whether a duration of four years 
 would answer the end proposed; and if it would not, 
 whether a less period, which would at least be recom- 
 mended by greater security against ambitious designs, 
 
Hamilton] EFFECT OF FOUR YEARS' TERM. 479 
 
 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 indepen- 
 dence of the magistrate. 
 
 It cannot be affirmed that a duration of four years, or 
 any other limited duration, would completely answer the 
 end proposed; but it would contribute towards it in a 
 degree which would have a material influence upon the 
 spirit and character of the government. Between the 
 commencement and termination of such a period there 
 would always be a considerable interval in which the 
 prospect of annihilation would be sufficiently remote not 
 to have an improper efifect upon the conduct of a man 
 indued with a tolerable portion of fortitude; and in 
 which he might reasonably promise himself that there 
 would be time enough before it arrived to make the 
 community sensible of the propriety of the measures he 
 might incline to pursue. Though it be probable that, as 
 he approached the moment when the public were by a 
 new election to signify their sense of his conduct, his 
 confidence, and with it his firmness, would decline; yet 
 both the one and the other would derive support from 
 the opportunities which his previous continuance in the 
 station had afforded him of establishing himself in the 
 esteem and good will of his constituents. He might 
 then hazard with safety, in proportion to the proofs he 
 had given of his wisdom and integrity and to the title he 
 had acquired to the respect and attachment of his fellow- 
 citizens. As, on the one hand, a duration of four years 
 will contribute to the firmness of the Executive in a 
 sufficient degree to render it a very valuable ingredient in 
 the composition, so, on the other, it is not enough to 
 justify any alarm for the public liberty.' If a British 
 
 ' This question of stability has already been discussed in a note to No. 
 37. Bagehot blames the American government, and especially the 
 presidency, because ' ' there is no elastic element ; everything is rigid, 
 specified, dated," and he cites as an advantage of the English system the 
 power by which a new government can be promptly substituted, instancing 
 the turning out of the Aberdeen cabinet during the Crimean difficulties, 
 when, "as was said at the time, ' we turn out the quaker and put in the 
 
480 POWER OF COMMON'S OVER CROWN. [No. 72 (71) 
 
 House of Commons from the most feeble beginnings, 
 from the mere power of assenting or disagreeing to the imposi- 
 tion of a new tax, have by rapid strides reduced the 
 prerogatives of the crown and the privileges of the no- 
 bility within the limits they conceived to be compatible 
 with the principles of a free government, while they 
 raised themselves to the rank and consequence of a 
 coequal branch of the legislature; if they have been able, 
 in one instance, to abolish both the royalty and the 
 aristocracy and to overturn all the ancient establish- 
 ments, as well in the Church as State; if they have been 
 able, on a recent occasion, to make the monarch tremble 
 at the prospect of an innovation * attempted by them, 
 what would be to be feared from an elective magistrate 
 of four years' duration, with the confined authorities of a 
 President of the United States? What but that he might 
 be unequal to the task which the Constitution assigns 
 him? I shall only add that, if his duration be such as to 
 leave a doubt of his firmness, that doubt is inconsistent 
 with a jealousy of his encroachments. — Publius. 
 
 pugilist. ' " It may be granted that the English method is more elastic, 
 in that it permits the transference of power to a set of men better fitted 
 to deal with a peculiar condition ; and it would have been an advantage 
 to the United States to be able to substitute for such Presidents as Madi- 
 son and Buchanan men better fitted for emergencies. A fairly close 
 approximation to such a flexible method is, however, obtained by making 
 the Secretary of War the actually responsible official, and then by substi- 
 tuting another for him if he fails, as was done twice in the War of l8ia 
 and once in the Civil War. The real difficulty, certain to be experienced 
 by such constitutional governments as Great Britain and the United 
 States, is to find a man bred in political life, who possesses at the same time 
 the peculiarly unpolitical faculties,which are needed in conducting a war. 
 Should either country be called upon at present to select an official to 
 carry on a great war, the appointment of an able man would be very 
 much of a lottery. — Editor. 
 
 * This was the case with respect to Mr. Fox's India bill, which was 
 carried in the House of Commons and rejected in the House of Lords, 
 to the entire satisfaction, as it is said, of the people. — Publius. 
 
fiamiltonl RE-BUGIBILITY OF PRESIDENT. 481 
 
 No. 72 [71]. (Independent Journal, March 19, 1788.) Hamilton. 
 
 RE-ELIGIBILITY OF THE PRESIDENT. 
 
 Duration in office affects stability of administration — Heads of depart- 
 ments dependent on Executive and will change with him — Re-eligibility 
 of Executive — The opposition to it considered — A limit of a single term 
 would diminish inducements to good behavior, increase temptations to 
 misconduct, prevent experience in the office, deprive the country in emer- 
 gencies 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. ' 
 
 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 executive details, and falls peculiarly 
 within the province of the executive department. The 
 actual conduct of foreign negotiations, the preparatory 
 plans of finance, the application and disbursement of the 
 public moneys in conformity to the general appro- 
 priations of the legislature, 4he 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 im- 
 mediate management these different matters are com- 
 mitted, ought to be considered as the assistants or 
 deputies of the Chief Magistrate, and on this account 
 they ought to derive their offices from his appointment, 
 at least from his nomination, and ought to be subject to 
 his superintendence. This view of the subject will at 
 once suggest to us the intimate connection between the 
 duration of the executive magistrate in office and the 
 stability of the system of administration. To reverse and 
 undo what has been done by a predecessor is very often 
 considered by a successor as the best proof he can give 
 
482 DURATION Of TERM. [No. 72 (71) 
 
 of his own capacity and desert; and in addition to this 
 propensity, where the alteration has been the result of 
 public choice, the person substituted is warranted in 
 supposing that the dismission of his predecessor has 
 proceeded from a dislike to his measures; and that the 
 less he resembles him, the more he will recommend him- 
 self to the favoir of his constituents. These considera- 
 tions, and the influence of personal confidences and 
 attachments, would be likely to induce every new Presi- 
 dent to promote a change of men to fill the subordinate 
 stations; and these causes together could not fail to 
 occasion a disgraceful and ruinous , mutability in the 
 administration of the government. 
 
 With a positive duration of considerable extent, I 
 connect the circumstance of re-eligibility.' The first is 
 necessary to give to the officer himself the inclination 
 and the resolution to act his part well, and to the com- 
 munity time and leisure to observe the tendency of his 
 
 ' This re-eligibllity was a theory of the framers, based on the idea that 
 so long as it was possible for a man to be re-elected to the presidency, he 
 would strive by good conduct to win it, while, if he was constitutionally 
 barred, he would probably overturn the constitution by force; this latter 
 result has repeatedly occurred in the South American republics. Inthe 
 constitution of the Confederate States the term was fixed at six years 
 and a. second term was forbidden, though no reason was given for the 
 change. 
 
 In practice there has come to be an unwritten understanding that no 
 President shall be re-elected more than once ; and this has been attained, 
 not by the popular will, but entirely by the voluntary action of the Presi- 
 dents themselves. Washington retired at the end of two terms ; but 
 those by whom he was most swayed were urging him, just before he died, 
 once more to offer himself for the position ; and though he declined, he 
 acknowledged that the motive of " great public good" would overcome 
 his refusal. Jefferson imitated him, hoping " that a few more Presi- 
 dents will oppose the obstacle of habit [and . . .] beget a disposition 
 to establish it by an amendment of the constitution " (" Writings," 
 viii. 339). He distinctly outlined a possibility, however, which would 
 induce him to accept a third term, but how little the people cared about 
 the matter is shown by the fact that more than a majority of the state 
 legislatures voted resolutions asking him to serve a third term. Both 
 Madison and Monroe refused to take a third nomination, and thus the 
 principle became so established that, though President Grant was un- 
 questionably willing to stand for a third term, the opposition within his 
 own party, and the strength of the non-partisan protests, were sufficient 
 to prevent his securing even the nomination. — Editor. 
 
Hamilton] ILL EFFECT OF EXCLUSION. 483 
 
 measures, and thence to form an experimental estimate 
 of their merits. The last is necessary to enable the 
 people, when they see reason to approve of his conduct, 
 to continue him in his station, in order to prolong the 
 utility of his talents and virtues, and to secure to the 
 government the advantage of permanency in a wise 
 system of administration. 
 
 Nothing appears more plausible at first sight, nor more 
 ill-founded upon close inspection, than a scheme which in 
 relation to the present point has had some respectable 
 advocates — I mean that of continuing the chief magis- 
 trate in office for a certain time, and then excluding him 
 from it, either for a limited period or forever after. 
 This exclusion, whether temporary or perpetual, would 
 have nearly the same effects, and these effects would be 
 for the most part rather pernicious than salutary. 
 
 One ill effect of the exclusion would be a diminution of 
 the inducements to good behavior. There are few men 
 who would not feel much less zeal in the discharge of a 
 duty when they were conscious that the advantages of 
 the station with which it was connected must be re- 
 linquished at a determinate period, than when they 
 were permitted to entertain a hope of obtaining by merit- 
 ing a continuance of them. This position will not be 
 disputed so long as it is admitted that the desire of 
 reward is one of the strongest incentives of human con- 
 duct; or that the best security for the fidelity of man- 
 kind is to make their interest coincide with their duty. 
 Even the love of fame, the ruling passion of the noblest 
 minds, which would prompt a man to plan and undertake 
 extensive and arduous enterprises for the public benefit, 
 requiring considerable time to mature and perfect them, 
 if he could flatter himself with the prospect of being 
 allowed to finish what he had begun, would, on the 
 contrary, deter him from the undertaking, when he fore- 
 saw that he must quit the scene before he could accom- 
 plish 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 
 
484 TEMPTATION TO AVAklCE. [No.'r2(7i) 
 
 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 
 enjoyed, would feel a propensity, not easy to be resisted 
 by such a man, to make the best use of the opportunity 
 he enjoyed while it lasted, and might not scruple to have 
 recourse to the most corrupt expedients to make the 
 harvest as abundant as it was transitory; though the 
 same man, probably, with a different prospect before 
 him, might content himself with the regular perquisites 
 of his situation, and might even be unwilling to risk the 
 consequences of an abuse of his opportunities. His 
 avarice might be a guard upon his avarice. Add to this 
 that the same man might be vain or ambitious, as well 
 as avaricious. And if he could expect to prolong his 
 honors by his good conduct, he might hesitate to sacrifice 
 his appetite for them to his appetite for gain. But with 
 the prospect before him of approaching an inevitable 
 annihilation, his avarice would be likely to get the 
 victory over his caution, his vanity, or his ambition. 
 
 An ambitious man, too, when he found himself seated 
 on the summit of his country's honors, when he looked 
 forward to the time at which he must descend from the 
 exalted eminence forever, and reflected that no exer- 
 tion of merit on his part could save him from the unwel- 
 come reverse; such a man, in such a situation, would be 
 much more violently tempted to embrace a favorable con- 
 juncture 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 
 
aamilton] ADVANTAGE OP EXPERIENCE. 4§S 
 
 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 depriv- 
 ing the community of the advantage of the experience 
 gained by the chief magistrate in the exercise of his 
 office. That experience is the parent of wisdom is an 
 adage the truth of which is recognized by the wisest as 
 well 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 banish- 
 ing men from stations in which, in certain emergencies 
 of the state, their presence might be of the greatest mo- 
 ment to the public interest or safety. There is no 
 nation which has not, at one period or another, experi- 
 enced an absolute necessity of the services of particular 
 men in particular situations; perhaps it would not be too 
 strong to say, to the preservation of its political exist- 
 ence." 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 
 
 ' Improbable as this now seems, one has but to study the intrigues of 
 Aaron Burr, after his retirement from the vice presidency, to see how 
 much force this reasoning then carried. — Editor. 
 
 ' Had the presidential term been limited to four years, a very dangerous 
 crisis would have occurred in 1864. — Editor. 
 
486 MUTABILITY OF MEASURES. [No. 72 (71) 
 
 war, or at any similar crisis, for another, even of equal 
 merit, would at all times be detrimental to the com- 
 munity, inasmuch as it would substitute inexperience to 
 experience, and would tend to unhinge and set afloat the 
 already settled train of the administration. 
 
 A fifth ill effect of the exclusion would be that it 
 would operate as a constitutional interdiction of stability 
 in the administration. By necessitating a change of men 
 in the first office of the nation, it would necessitate a 
 mutability of measures. It is not generally to be ex- 
 pected that men will vary and measures remain uniform. 
 The contrary is the usual course of things. And we 
 need not be apprehensive that there will be too much 
 stability while there is even the option of changing; nor 
 need we desire to prohibit the people from continuing 
 their confidence where they think it may be safely placed, 
 and where, by constancy on their part, they may obviate 
 the fatal inconveniences of fluctuating councils and a 
 variable policy. 
 
 These are some of the disadvantages which would 
 flow from the principle of exclusion. They apply most 
 forcibly to the scheme of a perpetual exclusion; but 
 when we consider that even a partial exclusion would 
 always render the readmission of the person a remote 
 and precarious object, the observations which have been 
 made will apply nearly as fully to one case as to the 
 other. 
 
 What are the advantages promised to counterbalance 
 these disadvantages? They are represented to be: ist, 
 greater independence in the magistrate; 2d, greater 
 security to the people. Unless the exclusion be per- 
 petual, there will be no pretense to infer the first advan- 
 tage. 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 
 <or whom he may sacrifice it? May he not be less willing, 
 by a firm conduct, to make personal enemies when he 
 acts under the impression that a time is fast approaching 
 on the arrival of which he not only may, but must, be 
 
Hamilton] DANGERS FROM AMBITIOUS MEN. 487 
 
 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 pro- 
 moted 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 am- 
 bition, of whom alone there could be reason in any case 
 to entertain apprehension, would with infinite reluctance 
 yield to the necessity of taking his leave forever of a 
 post in which his passion for power and pre-eminence 
 had acquired the fore of habit. And if he had been 
 fortunate or adroit enough to conciliate the good will of 
 the people, he might induce them to consider as a very 
 odious and unjustifiable restraint upon themselves a 
 provision which was calculated to debar them of the 
 right of giving a ffesh proof of their attachment to a 
 favorite. There may be conceived circumstances in 
 which this disgust of the people, seconding the thwarted 
 ambition of such a favorite, might occasion greater 
 danger to liberty than could ever reasonably be dreaded 
 from the possibility of a perpetuation in office by the 
 voluntary suffrages of the community, exercising a con- 
 stitutional privilege. 
 
 There is an excess of refinement in the idea of dis- 
 abling the people to continue in office men who had 
 entitled themselves in their opinion to approbation and 
 confidence, the advantages of which are at best specu- 
 lative and equivocal and are overbalanced by disadvan- 
 tages far more certain and decisive. Publius. 
 
4o8 PRESIDENTIAL SALARY. Ho, 73 (72;] 
 
 No. 73 [72]. (iVew Ko>-A /"acfeif, March 21, 1788.) Hamilton. 
 
 THE PRESIDENTIAL SALARY AND VETO. 
 
 Without suitable provision the, B,xecutive will he at the mercy of the 
 legislature^ and the independence of the Executive should not be impaired 
 — The veto power — Reasons for and against, enumerated and considered — 
 The veto power not absolute — It already exists in New York and Massa- 
 chusetts. 
 
 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 
 ggg support. It is evident that, without proper 
 
 Wo. 79. 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 
 souls; 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.' 
 
 ' Among innumerable instances, the conduct of Governor Denny of 
 Pennsylvania is a good example. He had been bound, by his instruc- 
 tions from the proprietors, to dissent from any bill vifhich should tax their 
 lands. When he obeyed these instructions the Assembly refused to 
 vote him his salary, and finally compelled him to accede to such legisla- 
 tion as they chose. — Editor. 
 
Hamilton] FIXITY OF COMPENSATION. 489 
 
 It is not easy, therefore, to commend too highly the 
 judicious attention which has been paid to this subject in 
 the proposed Constitution. It is there provided that 
 "The President of the United States shall, .at stated 
 times, receive for his 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 wUat shall be the compensation for 
 his services during the time for which he shall have 
 been elected. This done, they will have no power to 
 alter it, either by increase or diminution, till a new 
 period of service by a new election commences. They 
 can neither weaken his fortitude by operating on his 
 necessities, nor corrupt his integrity by appealing to his 
 avarice. Neither the Union nor any of its members 
 will be at liberty to give, nor will he be at liberty to 
 receive, any other emolument than that which may have 
 been determined by the first act. He can, of course, 
 have no pecuniary inducement to renounce or desert the 
 independence intended for him by the Constitution. 
 
 The last of the requisites to energy which have been 
 enumerated are competent powers. Let us proceed to 
 consider those which are proposed to be vested in the 
 President of the United States. 
 
 The first thing that offers itself to our observation is 
 the qualified negative of the President upon the acts or 
 resolutions of the two houses of the legislature; or, in 
 other words, his power of returning all bills with objec- 
 tions 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 legis- 
 lative body. 
 
 The propensity of the legislative department to intrude 
 upon the rights and to absorb the powers of the other 
 departments has been already suggested and repeated; 
 
49° PROPRIETY OF A NEGATIVE. [No. 73(72) 
 
 the insufficiency of a mere parchment delineation of 
 the boundaries of each has also been remarked upon; 
 See and the necessity of furnishing each with 
 
 Wo. 69. constitutional arms for its own defense 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 suc- 
 cessive resolutions, or annihilated by a single vote. And 
 in the one mode or the other the legislative and execu- 
 tive powers might speedily come to be blended in the 
 same hands. If even no propensity had ever discovered 
 itself in the legislative body to invade the rights of the 
 Executive, the rules of just reasoning and theoretic 
 propriety would of themselves teach us that the one 
 ought not to be left to the mercy of the other, but ought 
 to possess a constitutional and effectual power of self- 
 defense. 
 
 But the power in question has a further use. It not 
 only serves as a shield to the Executive, but it furnishes 
 an additional security against the enaction of improper 
 
 ' Twice the veto power has served this purpose in a limited manner: 
 in the contests of Congress with President Johnson over reconstruction, 
 and with President Hayes over riders (see note, p. 330). Anotlier pro- 
 lific cause of the presidential negative has been the congressional predi- 
 lection for internal improvements, which was chiefly responsible for the 
 vetoes by Madison, Jackson, Pierce, and the later outburst of special 
 pension legislation which led to frequent vetoes by Grant and Cleveland. 
 It is interesting to note that as a rule the veto power has not been most 
 used when the President and Congress belonged to different political 
 parties, but in those few cases in which the President and his own party 
 have disagreed. Thus the chief uses of the veto have been by Presidents 
 nominally in accord with the majority of Congress, especially by Jackson, 
 Tyler, Johnson, and Cleveland. Congresses openly opposed to the 
 President have not wasted their time in passing bills certain to be vetoed 
 (except during Johnson's presidency, when Congress had the necessary 
 two-thirds party vote to override a negative), while a President and Con- 
 gress in true accord have worked together sufficiently to make vetoes 
 needless ; and this has had a tendency to make a President loath to dis- 
 credit the congressional majority of his own party. See " Veto Messages 
 of the Presidents of the United States. Washington, 1886." — Editor. 
 
Hamilton] VETO IS DEFENSIVE. 49 » 
 
 laws. It establishes a salutary check upon the legisla- 
 tive body, calculated to guard the community against 
 the effects of faction, precipitancy, or of any impulse 
 unfriendly to the public good which may happen to in- 
 fluence 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 pre- 
 sumption should be entertained, it would be improper to 
 give the executive magistrate any species of control 
 over the legislative body. 
 
 But this observation, when examined, will appear 
 rather specious than solid. The propriety of the thing 
 does not turn upon the supposition of superior wisdom 
 or virtue in the Executive, but upon the supposition 
 that the legislature will not be infallible; that the love 
 of power may sometimes betray it into a disposition 
 to encroach upon the rights of other members of the 
 government; that a spirit of faction may sometimes per- 
 vert its deliberations; that impressions of the moment 
 may sometimes hurry it into measures which itself, on 
 maturer reflection, would condemn. The primary in- 
 ducement to conferring the power in question upon the 
 Executive is to enable him to defend himself; the 
 secondary one is to increase the chances in favor of 
 the community against the passing of bad laws through 
 haste, inadvertence, or design. The oftener the measure 
 is brought under examination, the greater the diversity in 
 the situations of those who are to examine it, the less 
 must be the danger of those errors which flow from 
 want of due deliberation, or of those missteps which 
 proceed from the contagion of some common passion or 
 interest. It is far less probable that culpable views of 
 any kind should infect all the parts of the government at 
 the same moment, and in relation to the same object, 
 than that they should by turns govern and mislead every 
 one of them. 
 
 It may perhaps be said that the power of preventing 
 
492 WILL BE USED CAUTIOUSLY. [No. 73 (72) 
 
 bad laws includes that of preventing good ones, and may 
 be used to the one purpose as well as to the other. But 
 this objection will have little weight with those who can 
 properly estimate the mischiefs of that inconstancy and 
 mutability in the laws which form the greatest blemish 
 in the character and genius of our governments. They 
 will consider every institution calculated to restrain the 
 excess of lawmaking, and, to keep things in the same 
 state in which they happen to be at any given period, as 
 much more likely to do good than harm; because it is 
 favorable to greater stability in the system of legislation. 
 The injury which may possibly be done by defeating a 
 few good laws will be amply compensated by the advan- 
 tage of preventing a number of bad ones. 
 
 Nor is this all. The superior weight and influence of 
 the legislative body in a free government, and the hazard 
 to the Executive in a trial of strength with that body, 
 afford a satisfactory security that the negative would 
 generally be employed with great caution, and there 
 would oftener be room for a charge of timidity than of 
 rashness in the exercise of it. A king of Great Britain, 
 with all his train of sovereign attributes, and with all the 
 gge influence he draws from a thousand sources. 
 
 No, 69. would at this day hesitate to put a negative 
 
 upon the joint resolutions of the two houses of Parlia- 
 ment. He would not fail to exert the utmost resources 
 of that influence to strangle a measure disagreeable to 
 him in its progress to the throne, to avoid being 
 reduced to the dilemma of permitting it to take effect 
 or of risking the displeasure of the nation by an opposi- 
 tion to the sense of the legislative body. Nor is it 
 probable that he would ultimately venture to exert his 
 prerogatives, but in a case of manifest propriety or 
 extreme necessity. All well-informed men in that king, 
 dom 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 
 
Hamilton] EXECUTIVE WILL DARE TO USE IT. 493 
 
 of the power under consideration, how much greater 
 caution may be reasonably expected in a President of the 
 United States, clothed for the short period of four years 
 with the executive authority of a government wholly and 
 purely republican? 
 
 It is evident that there would be greater danger of his 
 not using his power when necessary than of his using it 
 too often, or too much. An argument, indeed, against 
 its expediency has been drawn from this very source. 
 It has been represented, on this account, as a power 
 odious in appearance, useless in practice.' But it will 
 not follow that, because it might be rarely exercised, it 
 would never be exercised. In the case for which it is 
 chiefly designed, that of an immediate attack upon the 
 constitutional rights of the Executive, or in a case in 
 which the public good was evidently and palpably sacri- 
 ficed, a man of tolerable firmness would avail himself of 
 his constitutional means of defense, and would listen to 
 the admonitions of duty and responsibility. In the 
 former supposition, his fortitude would be stimulated by 
 his immediate interest in the power of his office; in the 
 latter, by the probability of the sanction of his constitu- 
 ents, who, though they would naturally incline to the 
 legislative body in a doubtful case, would hardly suffer 
 their partiality to delude them in a very plain case. I 
 speak now with an eye to a magistrate possessing only a 
 common share of firmness. There are men who, under 
 any circumstances, will have the courage to do their duty 
 at every hazard. 
 
 But the convention have pursued a mean in this busi- 
 ness which will both facilitate the exercise of the power 
 
 ' As a fact the use of the veto power has had a firmer popular support 
 than any other presidential prerogative, and the two Presidents who have 
 made themselves most popular (without factitious circumstances) after 
 taking ofifice (Jackson and Cleveland) have done so largely through 
 their use of this power. It is interesting to note that Jefferson records 
 in regard to the first veto of Washington that " a few of the hottest 
 friends of the bill expressed passion, but the majority were satisfied, and 
 both in and out of doors it gave pleasure to have at length an instance 
 of the negative being exercised." — ^Editor. 
 
494 FORCE OF QUALIFIED NEGATIVE. [No. 73 (72) 
 
 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 nega- 
 tive, it is proposed to give the Executive the qualified 
 negative already described. This is a power which 
 would be much more readily exercised than the other. 
 A man who might be afraid to defeat a law by his single 
 VETO might not scruple to return it for reconsideration; 
 subject to being finally rejected only in the event of 
 more than one-third of each house concurring in the suf- 
 ficiency 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 argumenta- 
 tive objections to be approved or disapproved by those 
 to whom they are addressed. In proportion as it would 
 be less apt to offend, it would be more apt to be ex- 
 ercised; andior 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 legisla- 
 ture at the same time; and this, too, in spite of the 
 counterpoising weight of the Executive. It is at any rate 
 far less probable that this should be the case than that 
 such views should taint the resolutions and conduct of a 
 bare majority. A power of this nature in the Executive 
 will often have a silent and unperceived, though forcible, 
 operation. When men engaged in unjustifiable pursuits 
 are aware that obstructions may come from a quarter 
 which they cannot control, they will often be restrained 
 by the bare apprehension of opposition from doing what 
 they would with eagerness rush into if no such external 
 impediments were to be feared. 
 
 This qualified negative, as has been elsewhere re- 
 marked, is in this State vested in a council, consisting of 
 
Hamilton] DISTINCTNESS OF JUDICIARY. 495 
 
 the governor, with the chancellor and judges of the 
 Supreme Court, or any two of them.' It has been freely 
 See Nos. 69 employed upon a variety of occasions, and 
 70, and 76. frequently with success. And its utility has 
 become so apparent that persons who, in compiling the 
 Constitution, were violent opposers of it, have from expe- 
 rience 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 capacities; the other is that, by being 
 often associated with the Executive, they might be in- 
 duced to embark too far in the political views of that 
 magistrate, and thus a dangerous combination might by 
 degrees be cemented between the executive and judiciary 
 departments. It is impossible to keep the judges too 
 distinct from every other avocation than that of expound- 
 ing the laws. It is peculiarly dangerous to place them in 
 a situation to be either corrupted or influenced by the 
 Executive. 
 
 PUBLIUS. 
 
 * Mr. Abraham Yates, a warm opponent of the plan of the convention, 
 is of this number. — Publius. 
 ' It is now vested solely in the governor. — Editor. 
 
496 COMMANDER-IN-CHIEF. [No. 74 (73) 
 
 No. 74 [73]. ^Neiu York Packet, March 25, 1788.) Hamilton. 
 
 THE PRESIDENTIAL COMMAND OF NATIONAL 
 FORCES AND POWER OF PARDON. 
 
 Command over army and navy and militia — Power to consult executive 
 officials — Need of the pardoning power — Special consideration of the par- 
 doning power as regards treason — Advantage of prompt use of pardon — 
 Incident of Massachusetts — Loss of time if pardoning power were vested 
 in legislature. 
 
 To the People of the State of New York: 
 
 The President of the United States is to be "com- 
 mander-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 pro- 
 priety of this provision is so evident in itself, and it is 
 at the same time so consonant to the precedents of the 
 State constitutions in general, that little need be said to 
 explain or enforce it. Even those of them which have, 
 in other respects, coupled the chief magistrate with a 
 council have for the most part concentrated the military 
 authority in him alone. Of all the cares or concerns of 
 government, the direction of war most peculiarly de- 
 mands 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 
 
 ' In this brief paragraph is dismissed the gravest problem which our 
 government has yet encountered regarding the presidential power. Had 
 Mr. Bagehot investigated with any care the history of the wars of 1812 and 
 1861 he would probably have found our government sufficiently "elastic"; 
 for, as Mr. Bryce remarks, the powers of the President " in war time, and 
 especially in civil war," expand with " portentous speed." Indeed, Lin- 
 coln went so far as to assert that ' ' as commander-in-chief of the army 
 
Hamilton] PARDONING POWER. 497 
 
 offices." This I consider as a mere redundancy in the 
 plan, as the right for which it provides would result of 
 itself from the office. 
 
 He is also to be authorized to grant "reprieves and 
 pardons for offenses against the United States, except in 
 cases of impeachment." Humanity and good policy conspire 
 to dictate that the benign prerogative of pardoning 
 should be as little as possible fettered or embarrassed. 
 The criminal code of every country partakes so much of 
 necessary severity that, without an easy access to excep- 
 tions in favor of unfortunate guilt, justice would wear a 
 countenance too sanguinary and cruel. As the sense of 
 responsibility is always strongest in proportion as it is 
 undivided, it may be inferred that a single man would be 
 most ready to attend to the force of those motives which 
 might plead for a mitigation of the rigor of the law, and 
 least apt to yield to considerations which were calculated 
 to shelter a fit object of its vengeance. The reflection 
 that the fate of a fellow-creature depended on his sole fiat 
 would naturally inspire scrupulousness and caution; the 
 dread of being accused of weakness or connivance would 
 beget equal circumspection, though of a different kind. 
 On the other hand, as men generally derive confidence 
 from their numbers, they might often encourage each 
 other in an act of obduracy, and might be less sensible to 
 the apprehension of suspicion or censure for an injudi- 
 cious or affected clemency. On these accounts, one 
 man appears to be a more eligible dispenser of the mercy 
 of government than a body of men. 
 
 The expediency of vesting the power of pardoning in 
 the President has, if I mistake not, been only contested 
 in relation to the crime of treason. This, it has been 
 urged, ought to have depended upon the assent of one, 
 or both, of the branches of the legislative body. I shall 
 
 and navy, in time of war, I suppose I have a right to take any measures 
 which may best subdue the enemy." Concerning this use of war power 
 during the Civil War see Curtis's "Executive Power," 1862; Lowrey's 
 " The Commander-in-Chief," 1866 ; Dunning's " The Constitution of 
 the United States in Civil War " (Political Science Quarterly, vol. i. 
 1886), and Whiting's "War Powers of the President," 1864. — Editor, 
 
498 PARDON EXTENDS TO TREASON. LNo. 74(73) 
 
 not deny that there are strong reasons to be assigned for 
 requiring in this particular the concurrence of that body, 
 or of a part of it. As treason is a crime leveled at the 
 immediate being of the society, when the laws have once 
 ascertained the guilt of the offender, there seems a fitness 
 in referring the expediency of an act of mercy towards 
 him to the judgment of the legislature. And this ought 
 the rather to be the case, as the supposition of the con- 
 nivance 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 
 numerous body whatever. It deserves particular atten- 
 tion that treason will often be connected with seditions 
 which embrace a large proportion of the community, as 
 lately happened in Massachusetts. In every such case 
 we might expect to see the representation of the people 
 tainted with the same spirit which had given birth to the 
 offense. And when parties were pretty equally matched 
 the secret sympathy of the friends and favorers of the 
 condemned person, availing itself of the good-nature and 
 weakness of others, might frequently bestow impunity 
 where the terror of an example was necessary. On the 
 other hand, when the sedition had proceeded from causes 
 which had inflamed the resentments of the major party, 
 they might often be found obstinate and inexorable when 
 policy demanded a conduct of forbearance and clemency. 
 But the principal argument for reposing the power of 
 pardoning in this case to the Chief Magistrate is this: in 
 seasons of insurrection or rebellion there are often criti- 
 cal moments when a well-timed offer of pardon to the 
 insurgents or rebels may restore the tranquillity of the 
 commonwealth ; and which, if suffered to pass unimproved, 
 it may never be possible afterwards to recall. The dila- 
 tory process of convening the legislature, or one of its 
 branches, for the purpose of obtaining its sanction to the 
 measure, would frequently be the occasion of letting slip 
 
Hamilton] TREATY-MAKING POWER. 499 
 
 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 contin- 
 gencies, might be occasionally conferred upon the Presi- 
 dent, it may be answered, in the first place, that it is 
 questionable whether, in a limited Constitution, that 
 power could be delegated by law; and in the second 
 place, that it would generally be impolitic beforehand to 
 take any step which might hold out the prospect of impu- 
 nity. 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. 
 
 No. 75 [74]. (.Independent Journal, Maxcii 26, zjii.) Hamilton. 
 
 THE PRESIDENTIAL POWER IN TREATIES. 
 
 One of the best features of the constitution — Objection that it combines 
 the executive and legislative departments considered — It is a proper com- 
 bination — Reasons for this — House of Representatives cannot properly be 
 admitted — Objection to requiring only two-thirds of senators present. 
 
 To the People of the State of New York: 
 
 The President is to have power, " by and with the ad- 
 vice and consent of the Senate, to make treaties, provided 
 two-thirds of the senators present concur." 
 
 Though this provision has been assailed on different 
 grounds with no small degree of vehemence, I scruple 
 ggg not to declare my firm persuasion that it is 
 
 No. 64. one of the best digested and most unexcep- 
 
 tionable parts of the plan. One ground of objection is 
 the trite topic of the intermixture of powers: some con- 
 tending that the President ought alone to possess the 
 power of making treaties; others, that it ought to have 
 been exclusively deposited in the Senate. Another 
 source of objection is derived from the small number of 
 persons by whom a treaty may be made. Of those who 
 espouse this objection, a part are of opinion that the 
 
Soo INTERMIXTURE OF POWERS. [Ho. 75 (74) 
 
 House of Representatives ought to have been associated 
 in the business, while another part seem to think that 
 nothing more was necessary than to have substituted two- 
 thirds of all the members of the Senate to two-thirds of 
 the members /r«i?«/. 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 pro- 
 priety in that union. Though several writers on the 
 subject of Government place that power in the class of 
 executive authorities, yet this is evidently an arbitrary 
 disposition; for, if we attend carefully to its operation, 
 it will be found to partake more of the legislative than of 
 the executive character, though it does not seem strictly 
 to fall within the definition of either of them. The essence 
 of the legislative authority is to enact laws, or, in other 
 words, to prescribe rules for the regulation of the society; 
 while the execution of the laws and the employment of 
 the common strength, either for this purpose or for the 
 common defense, seem to comprise all the functions of 
 the executive magistrate. The power of making treaties 
 is plainly neither the one nor the other. It relates 
 neither to the execution of the subsisting laws nor to 
 the enaction of new ones, and still less to an exertion of 
 the common strength. Its objects are contracts with 
 foreign nations, which have the force of law, but derive 
 it from the obligations of good faith. They are not rules 
 prescribed by the sovereign to the subject, but agree- 
 ments between sovereign and sovereign. The power in 
 
Hamilton] DANGERS POSSIBLE IN EXECUTIVE. Soi 
 
 question seems, therefore, to form a distinct department, 
 and to belong, properly, neither to the legislative nor to 
 the executive. The qualities elsewhere detailed as indis- 
 pensable in the management of foreign negotiations 
 point out the Executive as the most fit agent in those 
 transactions; while the vast importance of the trust, and 
 the operation of treaties as laws, plead strongly for the 
 participation of the- whole or a portion of the legislative 
 body in the office of making them. 
 
 However proper or safe it may be, in governments 
 where the executive magistrate is an hereditary monarch, 
 to commit to him the entire power of making treaties, it 
 would be utterly unsafe and improper to intrust that 
 power to an elective magistrate of four years' duration. 
 It has been remarked upon another occasion, and the 
 remark is unquestionably just, that an hereditary mon- 
 arch, though often the oppressor of his people, has per- 
 sonally too much stake in the government to be in any 
 material danger of being corrupted by foreign powers. 
 But a man raised from the station of a private citizen to 
 the rank of chief magistrate, possessed of a moderate or 
 slender fortune, and looking forward to a period not very 
 remote when he may probably be obliged to return to 
 the station from which he was taken, might sometimes 
 be under temptations to sacrifice his duty to his interest 
 which it would require superlative virtue to withstand. 
 An avaricious man might be tempted to betray the in- 
 terests of the state to the acquisition of wealth. An 
 ambitious man might make his own aggrandizement, by 
 the aid of a foreign power, the price of his treachery to 
 his constituents. The history of human conduct does 
 not warrant that exalted opinion of human virtue which 
 would make it wise in a nation to commit interests of so 
 delicate and momentous a kind, as those which concern 
 its intercourse with the rest of the world, to the sole dis- 
 posal of a magistrate created and circumstanced as would 
 be a President of the United States. 
 
 To have intrusted the power of making treaties to the 
 Senate alone would have been to relinquish the benefits 
 
502 CO-OPERATION OF SENATE. LNo. 75 (74) 
 
 of the constitutional agency of the President in the con- 
 duct of foreign negotiations. It is true that the Senate 
 would, in that case, have the option of employing him in 
 this capacity, but they would also have the option of 
 letting it alone, and pique or cabal might induce the 
 latter rather than the former. Besides this, the minis- 
 terial servant of the Senate could not be expected to 
 enjoy the confidence and respect of foreign powers in the 
 same degree with the constitutional representatives of 
 the nation, and, of course, would not be able to act with 
 an equal degree of weight or efficacy. While the Union 
 would, from this cause, lose a considerable advantage in 
 the management of its external concerns, the people 
 would lose the additional security which would result 
 from the co-operation of the Executive. Though it would 
 be imprudent to confide in him solely so important a trust, 
 yet it cannot be doubted that his participation would 
 materially add to the safety of the society. It must 
 indeed be clear to a demonstration that the joint posses- 
 sion of the power in question, by the President and 
 Senate, would afford a greater prospect of security than 
 the separate possession of it by either of them. And 
 whoever has maturely weighed the circumstances which 
 must concur in the appointment of a President, will be 
 satisfied that the office will always bid fair to be filled by 
 men of such characters as to render their concurrence in 
 the formation of treaties peculiarly desirable, as well on 
 the score of wisdom, as on that of integrity. 
 
 The remarks made in a former number, which have 
 been alluded to in another part of this paper, will apply 
 with conclusive force against the admission of the House 
 of Representatives to a share in the formation of treaties. 
 The fluctuating and, taking its future increase into the 
 account, the multitudinous composition of that body, 
 forbid us to expect in it those qualities which are essen- 
 tial to the proper execution of such a trust. Accurate 
 and comprehensive knowledge of foreign politics; a 
 steady and systematic adherence to the same views; a nice 
 and uniform sensibility to national character; decision, 
 
Hamilton] REQUISITE MAJORITY. So3 
 
 secrecy, and dispatch, are incompatible with the genius of 
 a body so variable and so numerous. The very complica- 
 tion of the business, by introducing a necessity of the 
 concurrence of so many different bodies, would of itself 
 afford a solid objection. The greater frequency of the 
 calls upon the House of Representatives, and the greater 
 length of time which it would often be necessary to keep 
 them together when convened, to obtain their sanction 
 in the progressive stages of a treaty, would be a source 
 of so great inconvenience and expense as alone ought to 
 condemn the project. 
 
 The only objection which remains to be canvassed is 
 that which would substitute the proportion of two-thirds 
 of all the members composing the senatorial body to 
 that of two-thirds of the members present. It has been 
 shown, under the second head of our inquiries, that all 
 provisions which require more than the majority of any 
 body to its resolutions have a direct tendency to embar- 
 rass 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 deter- 
 mine our opinion, that the convention have gone as far 
 in the endeavor to secure the advantage of numbers in 
 the formation of treaties as could have been reconciled 
 either with the activity of the public councils or with a 
 reasonable regard to the major sense of the community. 
 If two-thirds of the whole number of members had been 
 required, it would, in many cases, from the non-attend- 
 ance of a part, amount in practice to a necessity of unan- 
 imity. And the history of every political establishment 
 in which this principle has prevailed is a history of im- 
 potence, perplexity, and disorder. Proofs of this posi- 
 tion might be adduced from the examples of the Roman 
 Tribuneship, the Polish Diet, and the States-General of 
 the Netherlands, did not an example at home render 
 foreign precedents unnecessary. 
 
 To require a fixed proportion of the whole body would 
 not, in all probability, contribute to the advantages of a 
 numerous agency, better than merely to require a pro- 
 
504 VOTING CAPACITY OF SENATE. [110.75(74) 
 
 portion of the attending members. The former, by 
 making a determinate number at all times requisite to a 
 resolution,' diminishes the motives to punctual attend- 
 ance. The latter, by making the capacity of the body to 
 depend on a proportion which may be varied by the 
 absence or presence of a single member, has the contrary 
 effect. And as, by promoting punctuality, it tends to 
 keep the body complete, there is great likelihood that its 
 resolutions would generally be dictated by as great a 
 number in this case as in the other; while there would 
 be much fewer occasions of delay. It ought not to be 
 forgotten that, under the existing Confederation, two 
 members may, and usually do, represent a State; whence 
 it happens that Congress, who now are solely invested 
 with all the powers of the Union, rarely consist of a 
 greater number of persons than would compose the 
 intended Senate. If we add to this that as the members 
 vote by States, and that where there is only a single 
 member present from a State, his vote is lost, it will 
 justify a supposition that the active voices in the Senate, 
 where the members are to vote individually, would rarely 
 fall short in number of the active voices in the existing 
 Congress. When, in addition to these considerations, 
 we take into view the co-operation of the President, we 
 shall not hesitate to infer that the people of America 
 would have greater security against an improper use of 
 the power of making treaties, under the new Constitution, 
 than they now enjoy under the Confederation. And 
 when we proceed still one step further, and look forward 
 to the probable augmentation of the Senate, by the 
 erection of new States, we shall not only perceive ample 
 ground of confidence in the sufficiency of the members to 
 whose agency that power will be intrusted, but we shall 
 probably be led to conclude that a body more numerous 
 than the Senate would be likely to become, would be very 
 little fit for the proper discharge of the trust. 
 
 PUBLIUS. 
 
 ' In the text of 1802: "The former, by increasing the difficulty of 
 resolutions disagreeable to the minority." — Editor. 
 
Hamilton] POWEH OF APPOINTMENT. SoS 
 
 No. 76 [75]. {New York Packet, A^m z, ^^w.) Hamilton. 
 
 PRESIDENTIAL POWER OF APPOINTMENT. 
 
 An excellent feature — This power cannot he exercised by the people at 
 large — It will cause a livelier sense of duty — Objection to its being 
 intrusted to the President alone — He may be overruled by Senate — Con- 
 currence of Senate a check on favoritism — Objection that the President 
 may thus control Senate considered — Whole body of Senate cannot be 
 corrupted — Protection of constitution. 
 
 To the People of the State of New York: 
 
 The President is "to nominate, and, by and with the 
 advice and consent of the Senate, to appoint ambassa- 
 dors, other public ministers and consuls, judges of the 
 Supreme Court, and all other officers of the United States 
 whose appointments are not otherwise provided for in 
 the Constitution. But the Congress may by law vest the 
 appointment of such inferior officers as they think proper 
 in the President alone, or in the courts of law, or in the 
 heads of departments. The President shall have power 
 to fill up all vacancies which may happen during the recess 
 of the Senate, by granting commissions which shall expire 
 at the end of their next session." 
 
 It has been observed in a former paper that " the true 
 test of a good government is its aptitude and tendency 
 to produce a good administration." If the justness of 
 this observation be admitted, the mode of appointing 
 the officers of_ the United States contained in the fore- 
 going clauses must, when examined, be allowed to be 
 entitled to particular commendation. It is not easy to 
 conceive a plan better calculated than this to promote 
 a judicious choice of men for filling the offices of the 
 Union; and it will not need proof that on this point 
 must essentially depend the character of its adminis- 
 tration. 
 
 It will be agreed on all hands that the power of ap- 
 pointment, in ordinary cases, ought to be modified in 
 one of three ways. It ought either to be vested in 
 
So6 UNDIVIDED RESPONSIBILITY. tNo. 76 (75) 
 
 a single man, or in a select assembly of a moderate num- 
 ber; or in a single man, with the concurrence of such 
 an assembly. The exercise of it by the people at 
 large will be readily admitted to be impracticable; 
 as, waiving every other consideration, it would leave 
 them little time to do anything else. When, therefore, 
 mention is made in the subsequent reasonings of an 
 assembly or body of men, what is said must be under- 
 stood to relate to a select body or assembly of the 
 description already given. The people collectively, from 
 their number and from their dispersed situation, cannot 
 be regulated in their movements by that systematic spirit 
 of cabal and intrigue which will be urged as the chief 
 objections to reposing the power in question in a body 
 of men. 
 
 Those who have themselves reflected upon the subject, 
 or who have attended to the observations made in other 
 parts of these papers, in relation to the appointment of 
 the President, will, I presume, agree to the position that 
 there would always be great probability of having the 
 place supplied by a man of abilities, at least, respectable. 
 Premising this, I proceed to lay it down as a rule that 
 one man of discernment is better fitted to analyze and 
 estimate the peculiar qualities adapted to particular 
 offices than a body of men of equal or perhaps even of 
 superior discernment. 
 
 The sole and undivided responsibility of one man will 
 naturally beget a livelier sense of duty and a more exact 
 regard to reputation. He will, on this account, feel 
 himself under stronger obligations, and more interested 
 to investigate with care the qualities requisite to the 
 stations to be filled, and to prefer with impartiality the 
 persons who may have the fairest pretensions to them. 
 He will \\3.\e fe7ver 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 
 
Hamilton] CHOICE BY AN ASSEMBLY UNSAFE. 507 
 
 views, feelings, and interests which frequently distract 
 and warp the resolutions of a collective body. There is 
 nothing so apt to agitate the passions of mankind as 
 personal considerations, whether they relate to ourselves 
 or to others who are to be the objects of our choice or 
 preference. Hence, in every exercise of the power of 
 appointing to ofiSces by an assembly of men, we must 
 expect to see a full display of all the private and party 
 likings and dislikes, partialities and antipathies, attach- 
 ments and animosities, which are felt by those who com- 
 pose the assembly. The choice which may at any time 
 happen to be made under such circumstances will of 
 course be the result either of a victory gained by one 
 party over the other, or of a compromise between par- 
 ties. In either case, the intrinsic merit of the candidate 
 will be too often out of sight. In the first, the qualifica- 
 gee tions best adapted to uniting the suffrages of 
 
 No. 5S. the party will be more considered than those 
 
 which fit the person for the station. In the last, the 
 coalition will commonly turn upon some interested 
 equivalent: "Give us the man we wish for this office, 
 and you shall have the one you wish for that." ' This 
 will be the usual condition of the bargain. And it will 
 rarely happen that the advancement of the public service 
 will be the primary object either of party victories or of 
 party negotiations. 
 
 The truth of the principles here advanced seems to 
 have been felt by the most intelligent of those who have 
 found fault with the provision made, in this respect, by 
 the convention. They contend that the President ought 
 solely to have been authorized to make the appointments 
 under the federal government. But it is easy to show 
 that every advantage to be expected from such an 
 arrangement would, in substance, be derived from the 
 
 1 It has frequently happened that the Executive has influenced legis- 
 lation by giving to the members of Congress ofifices vifith which to reward 
 their adherents. But an even closer approximation to this suggested 
 danger has been created in the so-called " senatorial courtesy," by which 
 the Senate rejects a nominee simply because he is opposed by the senator 
 of the particular state from which such nominee may hail. — Editor. 
 
So8 ACCEPTANCE OF NOMINATIONS. LNo. 76 (75) 
 
 power of nomination, which is proposed to be conferred 
 upon him; while several disadvantages which might 
 attend the absolute power of appointment in the hands 
 of that officer would be avoided. In the act of nomina- 
 tion, 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 
 malce the final appointment. There can, in this view, be 
 no difference between nominating and appointing. The 
 same motives which lyould influence a proper discharge 
 of his duty in one case would exist in the other. And 
 as no man could be appointed but on his previous nomi- 
 nation, every man who might be appointed would be, in 
 fact, his choice. 
 
 But might not his nomination be overruled? I grant 
 it might; yet this could only be to make place for 
 another nomination by himself. The person ultimately 
 appointed must be the object of his preference, though 
 perhaps not in the first degree. It is also not very 
 probable that his nomination would often be overruled. 
 The Senate could not be tempted, by the preference they 
 See might feel to another, to reject the one pro- 
 
 No. 66. posed; because they could not assure them, 
 
 selves that the person they might wish would be brought 
 forward by a second or by any subsequent nomination. 
 They could not even be certain that a future nomination 
 would present a candidate in any degree more acceptable 
 to them; and as their dissent might cast a kind of stigma 
 upon the individual rejected and might have the appear- 
 ance of a reflection upon the judgment of the Chief 
 Magistrate, it is not likely that their sanction would often 
 be refused where there were not special and strong 
 reasons for the refusal. 
 
 To what purpose, then, require the co-operation of the 
 Senate.? I answer that the necessity of their concur- 
 rence 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 
 
Hamilton] CAUTION IN APPOINTMENTS. 509 
 
 prevent the appointment of unfit characters from State 
 prejudice, from family connection, from personal attach- 
 ment, or from a view to popularity.' In addition to this, 
 it would be an efficacious source of stability in the 
 administration. 
 
 It will readily be comprehended that a man who had 
 himself the sole disposition of offices would be governed 
 much more by his private inclinations and interests than 
 when he was bound to submit the propriety of his choice 
 to the discussion and determination of a different and 
 independent body, and that body an entire branch of the 
 legislature. The possibility of rejection would be a 
 strong motive to care in proposing. The danger to his 
 own reputation and, in the case of an elective magistrate, 
 to his political existence, from betraying a spirit of 
 favoritism, or an unbecoming pursuit of popularity, to 
 the observation of a body whose opinion would have 
 great weight in forming that of. the public, could not fail 
 to operate as a barrier to the one and to the other. He 
 would be both ashamed and afraid to bring forward for 
 the most distinguished or lucrative stations candidates 
 who had no other merit than that of coming from the 
 same State to which he particularly belonged, or of being 
 in some way or other personally allied to him, or of 
 possessing the necessary insignificance and pliancy to 
 render them the obsequious instruments of his pleasure. 
 
 To this reasoning it has been objected that the 
 President, by the influence of the power of nomination, 
 may secure the complaisance of the Senate to his views. 
 This supposition of universal venality in human nature 
 is little less an error in political reasoning than the sup- 
 position of universal rectitude.* The institution of dele- 
 gated 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 
 
 ' This was proved to the contrary in the administration of John 
 Adams, when a complacent Senate confirmed several family appoint- 
 ments, — Editor, 
 
5IO INTEGRITY OF SENATE PROBABLE. [No. 76(75) 
 
 periods of the most corrupt governments. 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 consists of inde- 
 pendent and public-spirited men, who have an influential 
 weight in the councils of the nation. Hence it is (the 
 present reign not excepted) that the sense of that body 
 is often seen to control the inclinations of the monarch, 
 both with regard to men and to measures. Though it 
 might therefore be allowable to suppose that the Execu- 
 tive might occasionally influence some individuals in the 
 Senate, yet the supposition that he could in general 
 purchase the integrity of the whole body would be forced 
 and improbable. A man disposed to view human nature 
 as it is, without either flattering its virtues or exagger- 
 ating its vices, will see sufficient ground of confidence in 
 the probity of the Senate to rest satisfied, not only that 
 it will be impracticable to the Executive to corrupt or 
 seduce a majority of its members, but that the necessity 
 of its co-operation, in the business of appointments, will 
 be a considerable and salutary restraint upon the conduct 
 of that magistrate. Nor is the integrity of the Senate 
 the only reliance. The Constitution has provided some 
 important guards against the danger of executive influence 
 upon the legislative body: it declares that "No senator 
 or representative shall, during the XAva^ for -which he was 
 elected, be appointed to any civil office under the United 
 States, which shall have been created, or the emoluments 
 whereof shall have been increased, during such time; and 
 no person, holding any office under the United States, 
 shall be a member of either house during his continuance 
 in office." Publius. 
 
Hamilton] CONCURRENCE OP SENATE. SH 
 
 No. 77 [76]' {Independent Journal, kyn\ 2, i-iW^, Hamilton. 
 
 APPOINTMENT TO OFFICE AND REMAINING 
 POWERS OF PRESIDENT. 
 
 The concurrence of the Senate necessary to displace as well as to 
 appoint — 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 
 Congress — 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 com- 
 mission all officers of the United States — Concluding remarks on the 
 Executive . 
 
 ' To the People of the State of New York: 
 
 It has been mentioned as one of the advantages to be 
 expected from the co-operation of the Senate, in the 
 gee business of appointments, that it would con- 
 
 So. 66. tribute to the stability of the administration. 
 The consent of that body would be necessary to displace 
 as well as to appoint. A change of the Chief Magistrate, 
 therefore, would not occasion so violent or so general a 
 revolution in the officers of the government as might be 
 expected if he were the sole disposer of offices. Where 
 a man in any station had given satisfactory evidence of 
 his fitness for it, a new President would be restrained 
 from attempting a change in favor of a person more 
 agreeable to him by the apprehension that a discounte- 
 nance of the Senate might frustrate the attempt and bring 
 some degree of discredit upon himself.' Those who can 
 
 ' In No. 55 Hamilton argued that vacancies would only result from 
 " ordinary casualities," thus apparently not conceiving, as he does here, 
 the possibility of sweeping removals with each incoming President. This 
 practice has since become almost the greatest recurring disgrace of our 
 national politics, and, as noted elsewhere, the most debauching influence 
 on public morals, next to pensions, for which our general government is 
 responsible. It has been usual to ascribe the origin of this policy to Jef- 
 ferson, and from hence to argue a peculiarly democratic merit in the 
 system. But in this case the true evil, begun before the election of tlje 
 great Democrat, was the elevation to, or exclusion from, office of men 
 
Sia VlfDlin COJ^TROL OV&R SEISTATB. tSo. M (76) 
 
 best estimate the value of a steady administration will 
 be most disposed to prize a provision which connects the 
 official existence of public men with the approbation or 
 disapprobation of that body which, from the greater 
 permanency of its own composition, will in all probability 
 be less subject to inconstancy than any other member of 
 the government. 
 
 To this union of the Senate with the President, in the 
 article of appointments, it has in some cases been sug- 
 gested that it would serve to give the President an undue 
 influence over the Senate, and in others that it would 
 have an opposite tendency — a strong proof that neither 
 suggestion is true. 
 
 To state the first in its proper form is to refute it. It 
 amounts to this: The President would have an improper, 
 
 not because they were fit or unfit for the public service, but because they 
 chose to hold personal views on politics. Thus the system is really an 
 endeavor to force men to certain political opinions, and is therefore in its 
 very essence undemocratic. 
 
 The early history of removals possesses material value. In Washing- 
 ton's administration appointments were made solely for fitness, with 
 scarcely any consideration of the party views of the nominees, and this 
 led Adams to complain that ' ' Washington appointed a multitude of 
 democrats and jacobins." Furthermore, from the Secretary of State, 
 Jefferson, to the translating clerk in that department, Freneau, office- 
 holders were allowed their own opinions, differ as they might from the 
 President. In the whole eight years not one was removed or asked to 
 resign because of his politics; and tenure was secure so long as each official 
 did his work honestly and capably. When Adams succeeded, he for the 
 first time introduced the system of appointing or removing public officials 
 on account of their opinion, and thus, when Jefferson was elected to the 
 presidency, he found a civil service which had been picked, not for effi- 
 cient administration, but for partisan purposes, and which consisted for the 
 most part of men notoriously opposed to him and to his administrative 
 policy. Yet he only removed a very few of the extremists, and for this 
 necessity he was hardly responsible. Unfortunately, those early prec- 
 edents of Adams and Jefferson, and especially the supposed democ- 
 racy of the latter's action, made it possible for Jackson, who came into 
 office with a dislike for the established civil service, to introduce a 
 wholesale sweep, not merely to remove officials, but to reward his 
 adherents with vacancies thus created. From that demoralization of 
 office-holder and office-seeker alike we have suffered ever since ; but 
 fortunately the extension of the civil service laws under the later Presi- 
 dents promises to end eventually the least democratic element in our 
 government. It is memorable that when Jackson set about his removals 
 the Senate did its best to prevent the wrong, just as it was here suggested 
 that that body would. — Editor. 
 
Hamilton] RESTRAINT BY SENATE SALUTARY. 513 
 
 influence over the Senate, because the Senate would have 
 the power of restraining him. This is an absurdity in 
 terms. It cannot admit of a doubt that the entire power 
 of appointment would enable him much more effectually 
 to establish a dangerous empire over that body than a 
 mere power of nomination subject to their control. 
 
 Let us take a view of the converse of the proposition: 
 "the Senate would influence the Executive." As I have 
 had occasion to remark in several other instances, the 
 indistinctness of the objection forbids a precise answer. 
 In what manner is this influence to be exerted? In 
 relation to what objects? The power of influencing a 
 person, in the sense in which it is here used, must imply 
 a power of conferring a benefit upon him. How could 
 the Senate confer a benefit upon the President by the 
 manner of employing their right of negative upon his 
 nominations? If it be said they might sometimes gratify 
 him by an acquiescence in a favorite choice, when public 
 motives might dictate a different conduct, I answer that 
 the instances in which the President could be personally 
 interested in the result would be too few to admit of his 
 being materially affected by the compliances of the 
 Senate. The power which can originate the disposition 
 of honors and emoluments is more likely to attract than 
 to be attracted by the power which can merely obstruct 
 their course. If by influencing the President be meant 
 restraining him, this is precisely what must . have been 
 intended. And it has been shown that the restraint 
 would be salutary, at the same time that it would not be 
 such as to destroy a single advantage to be looked for 
 from the uncontrolled agency of that magistrate. The 
 right of nomination would produce all the good of that of 
 appointment, and would in a great measure avoid its evils. 
 
 Upon a comparison of the plan for the appointment of the offi- 
 cers of the proposed government with that which is established by 
 SeeNos. 69 'he constitution of this State, a decided preference 
 70, and 74. must be given to the former. In that plan the power 
 of nomination is unequivocally vested in the Executive. And as 
 there would be a necessity for submitting each nomination to the 
 
S 14 NE W YORK ME THOD OP APPOtNTMENT. [No. 77(76) 
 
 judgment of an entire branch of the legislature, the circumstances 
 attending an appointment, from the mode of conducting it, would 
 naturally become inatters of notoriety ; and the public would be at 
 no loss to determine what part had been performed by the different 
 actors. The blame of a bad nomination would fall upon the 
 President singly and absolutely. The censure of rejecting a good 
 one would lie entirely at the door of the Senate ; aggravated by 
 the consideration of their having counteracted the good intentions 
 of the Executive. If an ill appointment should be made, the Exec- 
 utive for nominating, and the Senate for approving, would partici- 
 pate, though in different degrees, in the opprobrium and disgrace. 
 
 The reverse of all this characterizes the manner of appointment 
 in this State. The council of appointment consists of from three 
 to five persons, of whom the governor is always one. This small 
 body, shut up in a private apartment, impenetrable to the public 
 eye, proceed to the execution of the trust committed to them. It 
 is known that the governor claims the right of nomination, upon 
 the strength of some ambiguous expressions in the constitution ; 
 but it is not known to what extent, or in what manner he exercises 
 it ; nor upon what occasions he is contradicted or opposed. The 
 censure of a bad appointment, on account of the uncertainty of its 
 author, and for want of a determinate object, has neither poignancy 
 nor duration. And while an unbounded field for cabal and in- 
 trigue lies open, all idea of responsibility is lost. The most that 
 the public can know is that the governor claims the right of nomi- 
 nation ; that two out of the inconsiderable number olfour 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 uncom- 
 plying character, it is frequently not impossible to get rid of their 
 opposition by -regulating the times of meeting in such a manner as 
 to render their attendance inconvenient ; and that, from whatever 
 cause it may proceed, a great number of very improper appoint- 
 ments 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 prosti- 
 tutes that advantage to the advancement of persons whose chief 
 merit is their implicit devotion to his will, and to the support of a 
 despicable and dangerous system of personal influence, are ques- 
 tions which, unfortunately for the community, can only be the sub- 
 jects of speculation and conjecture. 
 
 Every mere council of appointment, however con- 
 stituted, will be a conclave in which cabal and intrigue 
 
Hamiiton] EVlLS OF AN APPOINTiNG COUNCIL. SiS 
 
 will have their full scope. Their number, without an 
 unwarrantable increase of expense, cannot be large 
 enough to preclude a facility of combination. And as 
 each member will have his friends and connections to 
 provide for, the desire of mutual gratification will beget 
 a scandalous bartering of votes and bargaining for 
 places. The private attachments of one man might 
 easily be satisfied; but to satisfy the private attachments 
 of a dozen, or of twenty men, would occasion a monopoly 
 of all the principal employments of the government in a 
 few families, and would lead more directly to an aris- 
 tocracy or an oligarchy than any measure that could be 
 contrived. If, to avoid an accumulation of offices, there 
 was to be a frequent change in the persons who were to 
 compose the council, this would involve the mischiefs of a 
 mutable administration in their full extent. Such a coun- 
 cil 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 ex- 
 pense, a multiplication of the evils which spring from 
 favoritism and intrigue in the distribution of public 
 honors, a decrease of stability in the administration of 
 the government, and a diminution of the security against 
 an undue influence of the Executive. And yet such a 
 council has been warmly contended for as an essential 
 amendment in the proposed Constitution. 
 
 I could not with propriety conclude my observations 
 on the subject of appointments without taking notice of 
 a scheme for which there have appeared some, though but 
 few advocates; I mean that of uniting the House of 
 Representatives in the power of making them. I shall, 
 however, do little more than mention it, as I cannot 
 imagine that it is likely to gain the countenance of any 
 considerable part of the community. A body so fluctuat- 
 ing and at the same time so numerous, can never be 
 deemed proper for the exercise of that power. Its unfit- 
 ness will appear manifest to all, when it is recollected 
 
Si6 REM A WING POWERS OF EXECUTIVE. [No. 77 
 
 that in half a century it may consist of three or four 
 hundred persons. All the advantages of the stability, 
 both of the Executive and of the Senate, would be de- 
 feated by this union, and infinite delays and embarrass- 
 ments would be occasioned. The example of most of 
 the States in their local constitutions encourages us to 
 reprobate the idea. 
 
 The only remaining powers of the Executive are com- 
 prehended in giving information to Congress of the state 
 of tke Union; in recommending to their consideration 
 such measures as he shall judge expedient; in convening 
 them, or either branch, upon extraordinary occasions; in 
 adjourning them when they cannot themselves agree 
 upon the time of adjournment; in receiving ambassadors 
 and other public ministers; in faithfully executing the 
 laws; and in commissioning all the ofificers of the United 
 States. 
 
 Except some cavils about the power of convening either 
 house of the legislature, and that of receiving ambassa- 
 dors, no objection has been made to this class of authori- 
 ties; nor could they possibly admit of any. It required, 
 indeed, an insatiable avidity for censure to invent excep- 
 tions to the parts which have been excepted to. In 
 regard to the power of convening either house of the leg- 
 islature, I shall barely remark that, in respect to the 
 Senate at least, we can readily discover a good reason 
 for it. As this body has a concurrent power with the 
 Executive in the article of treaties, it might often be 
 necessary to call it together with a view to this object, 
 when it would be unnecessary and improper to convene 
 the House of Representatives. As to the reception of 
 ambassadors, what I have said in a former paper will fur- 
 nish a suflScient answer. 
 
 We have now completed a survey of the structure and 
 powers of the executive department which, I have endeav- 
 ored to show, combines, as far as republican principles 
 will admit, all the requisites to energy. The remain- 
 ing inquiry is: Does it also combine the requisites to 
 safety, in a republican sense — a due dependence on the 
 
Hamilton] EXECUTIVE DVlV RESPONSIBLE. Ji? 
 
 people, a due responsibility? The answer to this ques- 
 tion 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 peo- 
 ple for that purpose; and from his being at all times 
 liable to impeachment, trial, dismission from ofifice, in- 
 capacity to serve in any other, and to forfeiture of life 
 and estate by subsequent prosecution in the common 
 course of law. But these precautions, great as they are, 
 are not the only ones which the plan of the convention 
 has provided in favor of the public security. In the only 
 instances in which the abuse of the executive authority 
 was materially to be feared, the Chief Magistrate of the 
 United States would, by that plan, be subjected to the 
 control of a branch of the legislative body. What more 
 could be desired by an enlightened and reasonable people? 
 
 PUBLIUS. 
 
 No. 78. (First collected edition, New York, 1788.) Hamilton. 
 
 TENURE OF OFFICE OF THE JUDICIAL DE- 
 PARTMENT. 
 
 Mode of appointment — Tenure — Need of complete independence — 
 Authority to pronounce on the constitutionality of the laws — The legisla- 
 ture should be the judge of its own powers — Interpretation of the laws 
 the peculiar province of the judiciary— Need of independence on this ac- 
 count — Independence required for judiciary as guardians of the Consti- 
 tution and of private rights as well — Wisdom of requiring good behavior 
 as basis of tenure. 
 
 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 recapitu- 
 late the considerations there urged, as the propriety of 
 
Si8 CONStlTUTioN dP JUDICIARY. [Mo. 78 
 
 the institution in the abstract is not disputed; the only 
 questions which have been raised being relative to the 
 manner of constituting it, and to its extent. To these 
 points, therefore, our observations shall be confined. 
 
 The manner of constituting it seems to embrace these 
 several objects: ist. The mode of appointing the judges. 
 2d. The tenure by which they are to hold their places. 
 3d. The partition of the judiciary authority between dif- 
 ferent courts, and their relations to each other. 
 
 First. As to the mode of appointing the judges: this is 
 the same with that of appointing the officers of the Union 
 in general, and has been so fully discussed in the two last 
 numbers, that nothing can be said here which would not 
 be useless repetition. 
 
 Second. As to the tenure by which the judges are to 
 hold their places: this chiefly concerns their duration in 
 office; the provisions for their support; the precautions 
 for their responsibility. 
 
 According to the plan of the convention, all judges 
 who may be appointed by the United States are to hold 
 their offices during good behavior ; which is conformable to 
 the most approved of the State constitutions, and among 
 the rest, to that of this State. Its propriety having 
 been drawn into question by the adversaries of that plan, 
 is no light symptom of the rage for objection which dis- 
 orders their imaginations and judgments. The standard 
 of good behavior for the continuance in office of the 
 judicial magistracy is certainly one of the most valuable 
 of the modern improvements in the practice of govern- 
 ment. In a monarchy it is an excellent barrier to the 
 despotism of the prince; in a republic it is a no less ex- 
 cellent 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 depart- 
 ments of power must perceive that, in a government in 
 which they are separated from each other, the judiciary, 
 from the nature of its functions, will always be the least 
 
Hamilton] RELATIVE WEAKNESS OF JUDICIARY. 519 
 
 dangerous to the political rights of the Constitution; be- 
 cause it will be least in a capacity to annoy or injure 
 them. The Executive not only dispenses the honors, 
 but holds the sword of the community. The legislature 
 not only commands the purse, but prescribes the rules by 
 which the duties and rights of every citizen are to be 
 regulated. The judiciary, on the contrary, has no influ- 
 ence over either the sword or the purse; no direction 
 either of the strength or of the wealth of the society; 
 and can take no active resolution whatever. It may 
 truly be said to have neither force nor will, but merely 
 judgment; and must ultimately depend upon the aid of 
 the executive arm even for the efficacy of its judgments. 
 This simple view of the matter suggests several im- 
 portant consequences. It proves incontestably that the 
 judiciary is beyond comparison the weakest of the three 
 departments of power*; that it can never attack with 
 success either of the other two; and that all possible 
 care is requisite to enable it to defend itself against their 
 attacks. It equally proves that though individual op- 
 pression may now and then proceed from the courts of 
 justice, the general liberty of the people can never be 
 endangered from that quarter; I mean so long as the 
 judiciary remains truly distinct from both the legislature 
 and the Executive. For I agree that " there is no 
 liberty, if the power of judging be not separated from the 
 legislative and executive powers." f And it proves, in 
 the last place, that as liberty can have nothing to fear 
 from the judiciary alone, but would have everything to 
 fear from its union with either of the other departments; 
 that as all the effects of such a union must ensue from a 
 dependence of the former on the latter, notwithstanding 
 a nominal and apparent separation; that as, from the 
 natural feebleness of the judiciary, it is in continual 
 jeopardy of being overpowered, awed, or influenced by 
 
 *The celebrated Montesquieu, speaking of them, says: " Of the three 
 powers above mentioned, the judiciary is next to nothing." — " Spirit of 
 Laws," vol. i. p. 186. — PuBLius. 
 
 \Idein, p. 181. — PUBLIUS. 
 
S20 JUDICIAL INDEPENDENCE NECESSARY. [No. 78 
 
 its co-ordinate branches; and that, as nothing can con- 
 tribute so much to its firmness and independence as 
 permanency in office, this quality may therefore be justly 
 regarded as an indispensable ingredient in its constitu- 
 tion, and, in a great measure, as the citadel of the public 
 justice and the public security. 
 
 The complete independence of the courts of justice 
 is peculiarly essential in a limited Constitution. By a 
 limited Constitution I understand one which contains 
 certain specified exceptions to the legislative authority; 
 such, for instance, as that it shall pass no bills of attain- 
 der, no ex post facto laws, and the like. Limitations of 
 this kind can be preserved in practice no other way than 
 through the medium of courts of justice, whose duty it 
 must be to declare all acts contrary to the manifest tenor 
 of the Constitution void. Without this, all the reserva- 
 tions of particular rights or privileges would amount to 
 nothing. 
 
 Some perplexity respecting the rights of the courts to 
 pronounce legislative acts void, because contrary to the 
 Constitution, has arisen from an imagination that the 
 doctrine would imply a superiority of the judiciary to 
 the legislative power. It is urged that the authority which 
 can declare the acts of another void must necessarily be 
 superior to the one whose acts may be declared void. 
 As this doctrine is of great importance in all the Ameri- 
 can constitutions, a brief discussion of the ground on 
 which it rests cannot be unacceptable." 
 
 ' During the early years of our government this principle, that it was 
 for the federal courts to decide whether acts were constitutional or not, 
 was so little accepted that the Presidents considered themselves judges as 
 well. Washington vetoed the apportionment bill of 1792 on the ground 
 that it did not conform to the constitutional requirements. Jefferson, with 
 more extreme action, holding the alien and sedition acts to be unconstitu- 
 tional, actually refused to consider them as laws, though they had been 
 passed by Congress and approved by the President. Madison, Monroe, 
 Jackson, Tyler, Polk, and Pierce vetoed internal improvement bills 
 because they believed them to be unconstitutional, and Jackson is quoted as 
 saying that he intended to support the constitution as he " understood it." 
 Slowly, however, opinion has become general that the decision on the 
 constitutionality of an act rests solely with the Supreme Court, and it is 
 many years since the presidential veto has been interposed on this 
 ground. — Editor. 
 
Hamilton] LIMIT OF DELEGATED AUTHORITY. $21 
 
 There is no position which depends on clearer princi- 
 ples than that every act of a delegated authority, con- 
 trary to the tenor of the commission under which it is 
 See exercised, is void. No legislative act, there- 
 
 No. 81. fore, contrary to the Constitution, can be 
 
 valid. To deny this would be to affirm that the deputy 
 is greater than his principal; that the servant is above 
 his master; that the representatives of the people are 
 superior to the people themselves; that men acting by 
 virtue of powers may do not only what their powers do 
 not authorize, but what they forbid.' 
 
 If it be said that the legislative body are themselves the 
 constitutional judges of their own powers, and that the 
 construction they put upon them is conclusive upon 
 the other departments, it may be answered that this 
 cannot be the natural presumption, where it is not to be 
 collected from any particular provisions in the Consti- 
 tution. It is not otherwise to be supposed that the 
 Constitution could intend to enable the representatives 
 of the people to substitute their will to that of their 
 constituents. It is far more rational to suppose that 
 the courts were designed to be an intermediate body 
 between the people and the legislature, in order, among 
 other things, to keep the latter within the limits assigned 
 to their authority. The interpretation of the laws is the 
 proper and peculiar province of the courts. A constitu- 
 tion is, in fact, and must be regarded by the judges, as a 
 fundamental law. It therefore belongs to them to ascer- 
 tain its meaning, as well as the meaning of any particu- 
 lar 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 
 
 ■See Marshall's opinion in Marbury v. Madison, in Appendix. — 
 Editor. 
 
522 FUNDAMENTAL LAWS THE HIGHER. [No. 78 
 
 superiority of the judicial to the legislative power. It 
 only supposes that the power of the people is superior to 
 both; and that where the will of the legislature, declared 
 in its statutes, stands in opposition to that of the people, 
 declared in the Constitution, the judges ought to be 
 governed by the latter rather than the former. They 
 ought to regulate their decisions by the fundamental 
 laws, rather than by those which are not fundamental. 
 
 This exercise of judicial discretion, in determining 
 between two contradictory laws, is exemplified in a 
 familiar instance. It not uncommonly happens that 
 there are two statutes existing at one time, clashing in 
 whole or in part with each other, and neither of them 
 containing any repealing clause or expression. In such 
 a case, it is the province of the courts to liquidate and 
 fix their meaning and operation. So far as they can by 
 any fair construction be reconciled to each other, reason 
 and law conspire to dictate that this should be done; 
 where this is impracticable, it becomes a matter of 
 necessity to give effect to one, in exclusion of the other. 
 The rule which has obtained in the courts for determin- 
 ing their relative validity is that the last in order of time 
 shall be preferred to the first. But this is a mere rule 
 of construction, not derived from any positive law, but 
 from the nature and reason of the thing. It is a rule not 
 enjoined upon the courts by legislative provision, but 
 adopted by themselves, as consonant to truth and pro- 
 priety, for the direction of their conduct as interpreters 
 of the law. They thought it reasonable that, between 
 the interfering acts of an equal authority, that which was 
 the last indication of its will should have the preference. 
 
 But in regard to the interfering acts of a superior and 
 subordinate authority, of an original and derivative 
 power, the nature and reason of the thing indicate the 
 converse of that rule as proper to be followed. They 
 teach us that the prior act of a superior ought to be 
 preferred to the subsequent act of an inferior and subor- 
 dinate authority; and that accordingly, whenever a par- 
 ticular statute contravenes the Constitution, it will be the 
 
Hamilton! COURTS CONSTITUTIONAL BULWARKS. S23 
 
 duty of the judicial tribunals to adhere to the latter and 
 disregard the former. 
 
 It can be of no weight to say that the courts, on the 
 pretense of a repugnancy, may substitute their own pleas- 
 ure 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 exer- 
 cise WILL instead of judgment, the consequence would 
 equally be the substitution of their pleasure to that of 
 the legislative body. The observation, if it prove any- 
 thing, would prove that there ought to be no judges 
 distinct from that body. 
 
 If, then, the courts of justice are to be considered as 
 the bulwarks of a limited Constitution against legislative 
 encroachments, this consideration will afford a strong 
 argument for the permanent tenure of judicial offices, 
 since nothing will contribute so much as this to that 
 independent spirit in the judges which must be essential 
 to the faithful performance of so arduous a duty. 
 
 This independence of the judges is equally requisite to 
 guard the Constitution and the rights of individuals from 
 the effects of those ill humors which the arts of design- 
 ing men or the influence of particular conjunctures some- 
 times disseminate among the people themselves, and 
 which, though they speedily give place to better informa- 
 tion and more deliberate reflection, have a tendency, in 
 the meantime, to occasion dangerous innovations in the 
 government and serious oppressions of the minor party 
 in the community. Though I trust the friends of the 
 proposed Constitution will never concur with its 
 enemies* in questioning that fundamental principle of 
 republican government which admits the right of the 
 people to alter or abolish the established Constitution 
 whenever they find it inconsistent with their happiness, 
 yet it is not to be inferred from this principle that the 
 
 * Vide " Protest of the Minority of the Convention of Pennsylvania," 
 Martin's Speech, etc. — PUBLIUS. 
 
524 CONSTITUTION BINDS REPRESENTA TIVES. [No. 78 
 
 representatives of the people, whenever a momentary 
 inclination happens to lay hold of a majority of their 
 constituents, incompatible with the provisions in the 
 existing Constitution, would, on that account, be justi- 
 fiable in a violation of those provisions; or that the 
 courts would be under a greater obligation to connive at 
 infractions in this shape than when they had proceeded 
 wholly from the cabals of the representative body. 
 Until the people have by some solemn and authoritative 
 act annulled or changed the established form, it is bind- 
 ing upon themselves collectively as well as individually; 
 and no presumption, or even knowledge, of their senti- 
 ments 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 Constitu- 
 tion only that the independence of the judges may be 
 an essential safeguard against the effects of occasional 
 ill humors in the society. These sometimes extend no 
 farther than to the injury of the private rights of par- 
 ticular classes of citizens, by unjust and partial laws. 
 Here also the firmness of the judicial magistracy is of 
 vast importance in mitigating the severity and confining 
 the operation of such laws. It not only serves to moder- 
 ate the immediate mischiefs of those which may have 
 been passed, but it operates as a check upon the legisla- 
 tive body in passing them; who, perceiving that obstacles 
 to the success of iniquitous intention are to be expected 
 from the scruples of the courts, are in a manner com- 
 pelled, by the very motives of the injustice they meditate, 
 to qualify their attempts. This is a circumstance cal- 
 culated to have more influence upon the character of our 
 governments than but few may be aware of. The bene- 
 fits 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 expec- 
 
Hamilton] INDEPENDENCE A JUDICIAL NECESSITY. 525 
 
 tations they may have disappointed, they must have com- 
 manded the esteem and applause of all the virtuous and 
 disinterested. Considerate men of every description 
 ought to prize whatever will tend to beget or fortify that 
 temper in the courts; as no man can be sure that he 
 may not be to-morrow the victim of a spirit of injustice 
 by which he may be a gainer to-day. And every man 
 must now feel that the inevitable tendency of such a 
 spirit is to sap the foundations of public and private 
 confidence and to introduce in its stead universal dis- 
 trust and distress. 
 
 That inflexible and uniform adherence to the rights of 
 the Constitution and of individuals, which we perceive 
 to be indispensable in the courts of justice, can certainly 
 not be expected from judges who hold their offices by a 
 temporary commission. Periodical appointments, how- 
 ever regulated, or by whomsoever made, would, in some 
 way or other, be fatal to their necessary independence. 
 If the power of making them was committed either to 
 the Executive or legislature, there would be danger of 
 an improper complaisance to the branch which possessed 
 it; if to both, there would be an unwillingness to hazard 
 the displeasure of either; if to the people, or to persons 
 chosen by them: for the special purpose, there would be 
 too great a dispj)sition to consult popularity to justify a 
 reliance that ndching would be consulted but the Consti- 
 tution and the Ia\fs. 
 
 There is yet a fcirt.her and a weightier reason for the 
 permanency of tfie judicial offices, which is deducible 
 from the nature of the qualifications they require. It 
 has been frequently remarked with great propriety that 
 a voluminous code of laws is one of the inconveniences 
 necessarily connected with the advantages of a free 
 government. To avoid an arbitrary discretion in the 
 courts it is indispensable that they should be bound 
 down by strict rules and precedents, which serve to define 
 and point out their duty in every particular case that 
 comes before them; and it will readily be conceived from 
 the variety of controversies which grow out of the folly 
 
526 VALUE OF JUDICIAL EXPERIENCE. [No. 73 
 
 and wickedness of mankind that the records of those 
 precedents must unavoidably swell to a very considerable 
 bulk, and must demand long and laborious study to 
 acquire a competent knowledge of them. Hence it is 
 that there can be but few men in the society who will 
 have sufficient skill in the laws to qualify them for the 
 stations of judges. And making the proper deductions 
 for the ordinary depravity of human nature, the number 
 must be still smaller of those who unite the requisite in- 
 tegrity with the requisite knowledge. These considera- 
 tions apprise us that the government can have no great 
 option between fit characters; and that a temporary dura- 
 tion in office, which would naturally discourage such 
 characters from quitting a lucrative line of practice to 
 accept a seat on the bench, would have a tendency to 
 throw the administration of justice into hands less able 
 and less well qualified to conduct it with utility and 
 dignity. In the present circumstances of this country, 
 and in those in which it is likely to be for a long time to 
 come, the disadvantages on this score would be greater 
 than they may at first sight appear; but it must be con- 
 fessed that they are far inferior to those which present 
 themselves under the other aspects of the subject. 
 
 Upon the whole, there can be no room to doubt that 
 the convention acted wisely in copying from the models 
 of those constitutions which have established good behavior 
 as the tenureof their judicial offices, in point of duration; 
 and that, so far from being blamabje on this account, 
 their plan would have been inexcusably defective if it 
 had wanted this important feature of good government. 
 The experience of Great Britain affords an illustrious 
 comment on the excellence of the institution. 
 
 PUBLIUS. 
 
Hamilton] PECUNIARY INDEPENDENCE. 527 
 
 No, 79* (First collected edition, New York, 1788.) Hamilton. 
 
 SUPPORT AND RESPONSIBILITY OF THE 
 JUDICIARY. 
 
 A fixed provision for the support of the judiciary necessary to their 
 independence — Responsibility of the judiciary— Judges liable to impeach- 
 ment — Cannot be made removable for inability — Reasons for this 
 
 Comparison with constitution of New York. 
 
 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 
 See provision for their Support. The remark 
 
 Wo. 73. made in relation to the President is equally 
 
 applicable here. In the general course of human nature, 
 a power over a maris 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 legisla- 
 tive power, in any system which leaves the former 
 dependent for pecuniary resources on the occasional 
 grants of the latter. The enlightened friends to good 
 government in every State have seen cause to lament 
 the want of precise and explicit precautions in the State 
 constitutions on this head. Some of these indeed have 
 declared that permanent* salaries should be established 
 for the judges; but the experiment has in some instances 
 shown that such expressions are not sufficiently definite 
 to preclude legislative evasions. Something still more 
 positive and unequivocal has been evinced to be requisite. 
 The plan of the convention accordingly has proved that 
 the judges of the United States "shall at stated times 
 receive for their services a compensation which shall not 
 be diminished during their continuance in office." 
 
 This, all circumstances considered, is the most eligible 
 provision that could have been devised. It will readily 
 be understood that the fluctuations in the value of money 
 
 * Vide "Constitution of Massachusetts," chapter 2, section I, article 
 13.— PUBLIUS. 
 
528 REGULATION OF SALARY. [No. 79 
 
 and in the state of society rendered a fixed rate of com- 
 pensation in the Constitution inadmissible. What might 
 be extravagant to-day might in half a century become 
 penurious and inadequate. It was therefore necessary 
 to leaMe it to the discretion of the legislature to vary its 
 provisions in conformity to the variations in circum- 
 stances, yet under such restrictions as to put it out of 
 the power of that body to change the condition of the 
 individual for the worse. A man may then be sure of the 
 ground upon which he stands, and can never be deterred 
 from his duty by the apprehension of being placed in a 
 less eligible situation. The clause which has been quoted 
 combines both advanta.ges. The salaries- of judicial 
 offtcers 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 difference has 
 been made by the convention between the compensation 
 of the President and of the judges. That of the former 
 can neither be increased nor diminished; that of the 
 latter can only not be diminished. This probably arose 
 from the difference in the duration of the respective 
 offices. As the President is to be elected for no more 
 than four years, it can rarely happen that an adequate 
 salary, fixed at the commencement of that period, will 
 not continue to be such to its end. But with regard to 
 the judges, who, if they behave properly, will be secured 
 in their places for life, it may well happen, especially in 
 the early stages of the government, that a stipend which 
 would be very sufficient at their first appointment would 
 become too small in the progress of their service. 
 
 This provision for the support of the judges bears 
 every mark of prudence and efficacy; and it may be safely 
 affirmed that, together with the permanent tenure of their 
 offices, it affords a better prospect of their independence 
 than is discoverable in the constitutions of any of the 
 States in regard to their own judges. 
 
 The precautions for their responsibility are comprised 
 in the article respecting impeachments. They are liable 
 
Hamilton] REMOVAL OF JUDGES. 529 
 
 to be impeached for malconduct by the House of Repre- 
 sentatives and tried by the Senate; and, if convicted, 
 may be dismissed from office and disqualified for holding 
 any other. This is the only provision on the point which 
 is consistent with the necessary independence of the 
 judicial character, and is the only one which we find in 
 our own Constitution in respect to our own judges.' 
 
 The want of a provision for removing the judges on 
 account of inability has been a subject of complaint. 
 But all considerate men will be sensible that such a pro- 
 vision would either not be practiced upon or would be 
 more liable to abuse than calculated to answer any good 
 purpose. The mensuration of the faculties of the mind 
 has, I believe, no place in the catalogue of known arts. 
 An attempt to fix the boundary between the regions of 
 ability and inability would much oftener give scope to 
 personal and party attachments and enmities than ad- 
 vance the interests of justice or the public 'good. The 
 result, except in the case of insanity, must for the most 
 part be arbitrary; and insanity, without any formal or 
 express provision, may be safely pronounced to be a 
 virtual disqualification. 
 
 The constitution of New York, to avoid investigations 
 that must forever be vague and dangerous, has taken 
 a particular age as the criterion of inability. No man 
 can be a judge beyond sixty. I believe there are few at 
 present who do not disapprove of this provision. There 
 is no station in relation to which it is less proper than 
 to that of a judge. The deliberating and comparing 
 faculties generally preserve their strength much beyond 
 that period in men who survive it; and when, in addition 
 to this circumstance, we consider how few there are who 
 
 ' Although the constitution made the tenure of office of judges dependent 
 on good behavior, it provided no means of removal, save by im- 
 peachment. This omission resulted in the curious case of Judge Picker- 
 ing, v?ho was alleged to have become insane, and vifho was impeached in 
 1803. (See Adams's ".History of the United States," ii. 155.) In Great 
 Britain judges are removable by the crown on an address by both houses, 
 and in Massachusetts they are removable by the governor and council, on 
 petition of the legislature. — Editoe. 
 
53° AGE LIMIT DISADVANTAGEOUS. LNo. 79 
 
 outlive the season of intellectual vigor, and how im- 
 probable it is that any considerable portion of the bench, 
 whether more or less numerous, should be in such a 
 situation at the same time, we shall be ready to conclude 
 that limitations of this sort have little to recommend 
 them. In a republic, where fortunes are not affluent 
 and pensions not expedient, the dismission of men from 
 stations in which they have served their country long 
 and usefully, on which they depend for subsistence, and 
 from which it will be too late to resort to any other occu- 
 pation 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. 
 
 No. 80. (First collected edition, New York, 1788.) HatniltOH. 
 
 EXTENT OF THE POWERS OF THE JUDICIAL 
 DEPARTMENT. 
 
 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 u, 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 different states, are parties; which originate on high seas or 
 are of admiralty jurisdiction; in which state tribunals cannot be supposed 
 to be implicated — To what cases authority of judiciary will extend under 
 proposed constitution — Statement of constitutional provisions — These 
 provisions conform to what the powers of the judiciary ought to be — 
 Propriety of delegating equity jurisdiction. 
 
 To the People of the State of New York: 
 
 To judge with accuracy of the proper extent of the 
 federal judicature, it will be necessary to consider, in 
 the first place, what are its proper objects. 
 
 It seems scarcely to admit of controversy that the 
 judiciary authority of the Union ought to extend to these 
 several descriptions of cases: ist, to all those which 
 arise out of the laws of the United States, passed in 
 pursuance of their just and constitutional powers of 
 
Hamilton] FEDERAL CONTROL OVER STATE LAWS. 531 
 
 legislation; 2d, to all those which concern the execution 
 of the provisions expressly contained in the articles of 
 Union; 3d, to all those in which the United States are a 
 party, 4th, to all those which involve the peace of the 
 Confederacy, whether they relate to the intercourse 
 between the United States and foreign nations, or to 
 that between the States themselves; sth, to all those 
 which originate on the high seas, and are of admiralty or 
 maritime jurisdiction; and lastly, to all those in which' 
 the State tribunals cannot be supposed to be impartial 
 and unbiased. 
 
 The first point depends upon this obvious consider- 
 ation, that there ought always to be a constitutional 
 method of giving efficacy to constitutional provisions. 
 What, for instance, would avail restrictions on the 
 authority of the State legislatures, without some consti- 
 tutional 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 incom- 
 patible with the interests of the Union, and others with 
 the principles of good government. The imposition of 
 duties on imported articles, and the emission of paper 
 money, are specimens of each kind. No man of sense will 
 believe that such prohibitions would be scrupulously 
 regarded, without some effectual power in the govern- 
 ment 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 conven- 
 tion preferable to the former, and, I presume, will be 
 most agreeable to the States. 
 
 As to the second point, it is impossible by any argu- 
 ment or comment to make it clearer than it is in itself. 
 If there are such things as political axioms, the propriety 
 of the judicial power of a government being coextensive 
 with its legislative may be ranked among the number. 
 The mere necessity of uniformity in the interpretation 
 
532 NECESSARY UNIFORMITY. [Ko. 80 
 
 of the national laws decides the question. Thirteen 
 independent courts of final jurisdiction over the same 
 causes, arising upon the same laws, is a hydra in govern- 
 ment, from which nothing but contradiction and con- 
 fusion can proceed.' 
 
 Still less need be said in regard to the third point. 
 Controversies between the nation and its members or 
 citizens can only be properly referred to the national 
 tribunals. Any other plan would be contrary to reason, 
 to precedent, and to decorum. 
 
 The fourth point rests on this plain proposition, that 
 the peace of the whole ought not to be left at the dis- 
 posal of a PART. The Union will undoubtedly be answer- 
 able to foreign powers for the conduct of its members." 
 And the responsibility for an injury ought ever to be 
 accompanied with the faculty of preventing it. As the 
 denial or perversion of justice by the sentences of courts, 
 as well as in any other manner, is with reason classed 
 among the just causes of war, it will follow that the 
 
 ' On April 3, 1788, Hamilton wrote to Madison : 
 
 ' ' I have been very delinquent, my dear sir, in not thanking you for 
 your letter from Philadelphia. The remarks you made on a certain 
 subject are important, and will be attended to. 
 
 " There is truly much embarrassment in the case. 
 
 " I think, however, the principles we have talked of are not only just, 
 but will apply to the other departments. Nor will the consequences 
 appear so disagreeable as they may seem at first sight, when we attend 
 to the true import of the rule established. The States retain all the 
 authorities they were before possessed of, not alienated in the three 
 modes pointed out ; but this does not include cases which are the crea- 
 tures of the new Constitution. For instance, the crime of treason against 
 the United States immediately is a crime known only to the new Consti- 
 tution. There of course was no power in the State constitutions to 
 pardon that crime. There will therefore be none under the new, etc. 
 This is something likely, it seems to me, to afford the best solution of 
 the difficulty. I send you the Federalist from the beginning to the con- 
 clusion of the commentary on the Executive Branch. If our suspicions 
 of the author be right, he must be too much engaged to make a rapid 
 progress in what remains. The Court of Chancery and a Circuit Court 
 are now sitting." — Editor. 
 
 '^ The reverse was asserted in the case of the Mafia riots at New 
 Orleans, our government urging that it had no power to prevent or 
 punish, because the riots were solely affairs of local jurisdiction; but it 
 acknowledged responsibility for the neglect of duty by the municipal 
 authorities, by making indemnities for the outrages. The same plea was 
 made in the Wyoming Anti-Chinese riots. — EDITOR. 
 
Hamilton] FOREIGN AND INTER-STA TE DISPUTES. 533 
 
 federal judiciary ought to have cognizance of all causes 
 in which the citizens of other countries are concerned. 
 This is not less essential to the preservation of the public 
 faith than to the security of the public tranquillity. A 
 distinction may perhaps be imagined between cases aris- 
 ing upon treaties and the laws of nations and those which 
 may stand merely on the footing of the municipal law. 
 The former kind may be supposed proper for the federal 
 jurisdiction, the latter for that of the States. But it is 
 at least problematical whether an unjust sentence against 
 a foreigner, where the subject of controversy was wholly 
 relative to the lex loci, would not, if unredressed, be an 
 aggression upon his sovereign, as well as one which 
 violated the stipulations of a treaty or the general law 
 of nations. And a still greater objection to the dis- 
 tinction would result from the immense difficulty, if not 
 impossibility, of a practical discrimination between the 
 cases of one complexion and those of the other. So 
 great a proportion of the cases in which foreigners are 
 parties involve national questions that it is by far 
 most safe and most expedient to refer all those in which 
 they are concerned to the national tribunals. 
 
 The power of determining causes between two States, 
 between one State and the citizens of another, and 
 between the citizens of different States, is perhaps not 
 less essential to the peace of the Union than that which 
 has been just examined. History gives us a horrid 
 picture of the dissensions and private wars which dis- 
 tracted and desolated Germany prior to the institution 
 of the Imperial Chamber of Maximilian, towards the close 
 of the fifteenth century; and informs us, at the same 
 time, of the vast influence of that institution in appeasing 
 the disorders and establishing the tranquillity of the 
 empire. This was a court invested with authority to 
 decide finally all differences among the members of the 
 Germanic body. 
 
 A method of terminating territorial disputes between 
 the States, under the authority of the federal head, was 
 not unattended to, even in the imperfect system by which 
 
534 EQUAL CIVIL RIGHTS. [No. 80 
 
 they have been hitherto held together.' But there are 
 many other sources, besides interfering claims of 
 boundary, from which bickerings and animosities may 
 spring up among the members of the Union. To some 
 of these we have been witnesses in the course of our past 
 experience. It will readily be conjectured that I allude 
 to the fraudulent laws which have been passed in too 
 many of the States. And though the proposed Constitu- 
 tion 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 privi- 
 leges 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 otvn 
 authority, it will follow that, in order to the inviolable 
 maintenance of that equality of privileges and im- 
 munities to which the citizens of the Union will be en- 
 titled, the national judiciary ought to preside in all cases 
 in which one State or its citizens are opposed to another 
 State or its citizens. To secure the full effect of so fun- 
 damental a provision against all evasion and subterfuge, 
 it is necessary that its construction should be com- 
 mitted to that tribunal which, having no local attach- 
 ments, 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 
 
 ' See the " Predecessor of the Supreme Court," in Jameson's " Essays 
 in the Constitutional History of the United States," 1889. — Editor. 
 'See the Xlth Amendment,— Editor. 
 
Hamilton] MARITIME AND BOUNDARY CASES. 535 
 
 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 considera- 
 tions which are relative to the public peace. The most 
 important part of them are by the present Confedera- 
 tion submitted to federal jurisdiction. 
 
 The reasonableness of the agency of the national 
 courts in cases in which the State tribunals cannot be 
 supposed to be impartial speaks for itself. No man 
 ought certainly to be a judge in his own cause, or in 
 any cause in respect to which he has the least interest 
 or bias. This principle has no inconsiderable weight 
 in designating the federal courts as the proper tribunals 
 for the determination of controversies between different 
 States and their citizens. And it ought to have the same 
 operation in regard to some cases between citizens of 
 the same State. Claims to land under grants of different 
 States, founded upon adverse pretensions of boundary, 
 are of this description. The courts of neither of the 
 granting States could be expected to be unbiased. The 
 laws may have even prejudged the question, and tied 
 the courts down to decisions in favor of the grants of 
 the State to which they belonged. And even where this 
 had not been done, it would be natural that the judges, 
 as men, should feel a strong predilection to the claims of 
 their own government. 
 
 Having thus laid down and discussed the principles 
 which ought to regulate the constitution of the federal 
 judiciary, we will proceed to test, by these principles, the 
 particular powers of which, according to the plan of the 
 convention, it is to be composed. It is to comprehend 
 "all cases in law and equity arising under the Constitu- 
 tion, the laws of the United States, and treaties made, or 
 which shall be made, under their authority; to all cases 
 affecting ambassadors, other public ministers, and con- 
 suls; to all cases of admiralty and maritime jurisdiction; 
 to controversies to which the United States shall be a 
 
53^ FEDERAL EQUITY POWER. OSTo. 90 
 
 party; to controversies between two or more States; 
 between a State and citizens of another State; between 
 citizens of different States; between citizens of the same 
 State claiming lands and grants of different States; and 
 between a State or the citizens thereof and foreign states, 
 citizens, and subjects." This constitutes the entire mass 
 of the judicial authority of the Union. Let us now re- 
 view it in detail. It is, then, to extend: 
 
 First. To all cases in law and equity arising under the 
 Constitution and the laws of the United States. This cor- 
 responds 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 contradistinc- 
 tion from those "arising under the laws of the United 
 States "? The difference has been already explained. 
 All the restrictions upon the authority of the State 
 legislatures furnish examples of it. They are not, for in- 
 stance, 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, not- 
 withstanding, be emitted, the controversies concerning 
 it would be cases arising under the Constitution and not 
 the laws of the United States, in the ordinary significa- 
 tion 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 Constitu- 
 See tion and laws of the United States? There 
 
 No. 88. is hardly a subject of litigation between in- 
 
 dividuals which may not involve those ingredients of 
 fraud, accident, trust, or hardship, which would render the 
 matter an object of equitable rather than of legal juris- 
 diction, as the distinction is known and established in 
 several of the States. It is the peculiar province, for in- 
 stance, 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 
 
Hamilton] liEMAINING JUDICIAL POWERS. 537 
 
 may have been some undue and unconscionable advan- 
 tage taken of the necessities or misfortunes of one of the 
 parties, which a court of equity would not tolerate. In 
 such cases, where foreigners were concerned on either 
 side, it would be impossible for the federal judicatories 
 to do justice without an equitable as well as a legal juris- 
 diction. Agreements to convey lands claimed under the 
 grants of different States may afford another example of 
 the necessity of an equitajsle jurisdiction in the federal 
 courts. This reasoning may not be so palpable in those 
 States where the formal and technical distinction between 
 LAW and EQUITY is not maintained, as in this State, 
 where it is exemplified by every day's practice. 
 
 The judiciary authority of the Union is to extend: 
 
 Second. To treaties made, or which shall be made, 
 under the authority of the United States, and to all cases 
 affecting ambassadors, other public ministers, and con- 
 suls. These belong to the fourth class of the enumer- 
 ated cases, as they have an evident connection with the 
 preservation of the national peace. 
 
 Third. To cases of admiralty and maritime jurisdic- 
 tion. These form, altogether, the fifth of the enumer- 
 ated 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 
 
538 FEDERAL POWERS PROPERLY EXTENDED. [No. 80 
 
 have been already explained to belong to the fourth of the 
 enumerated classes, and have been shown to be, in a pecul- 
 iar manner, the proper subjects of the national judicature. 
 From this review of the particular powers of the federal 
 judiciary as marked out in the Constitution, it appears 
 that they are all conformable to the principles which 
 ought to have governed the structure of that department, 
 and which were necessary to the perfection of the system. 
 If some partial inconveniences should appear to be con- 
 nected with the incorporation of any of them into the 
 plan, it ought to be recollected that the national legisla- 
 ture will have ample authority to make such exceptions 
 and to prescribe such regulations as will be calculated to. 
 obviate or remove these inconveniences. The possibility 
 of particular mischiefs can never be viewed by a well- 
 informed mind as a solid objection to a general principle 
 which is calculated to avoid general mischiefs and to 
 obtain general advantages. Publius. 
 
 No. 8l. (Firs' collected edition, New Yorlc, 1788.) Hamilton. 
 
 DISTRIBUTION OF THE AUTHORITY OF THE 
 JUDICIARY. 
 
 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 judiciary 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 jtidicial mistakes 
 except as to future action, and the danger of encroachments by the 
 judiciary on the legislature,, considered — Propriety of constituting inferior 
 courts — Relief to supreme court — State courts not fit for this — Advan- 
 tage of dividing United States into judicial districts — Manner in which 
 authority should be distributed — Original jurisdiction of supreme 
 court — Original jurisdiction of inferior courts — Appellate jurisdiction 
 of supreme court. 
 
 To the People of the State of New York: 
 
 Let us now return to the partition of the judiciary 
 authority between different courts, and their relations to 
 each other. 
 
Hamilton] SUPREME JURISDICTION NECESSARY. 539 
 
 " 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 
 contested. The reasons for it have been assigned in 
 another place, and are too obvious to need repetition. 
 The only question that seems to have been raised con- 
 cerning it is, whether it ought to be a distinct body or 
 a branch of the legislature. The same contradiction is 
 observable in regard to this matter which has been 
 remarked in several other cases. The very men who 
 object to the Senate as a court of impeachments, on the 
 ground of an improper intermixture of powers, advocate, 
 by implication at least, the propriety of vesting the 
 ultimate decision of all causes in the whole or in a part 
 of the legislative_body. 
 
 The arguments, or rather suggestions, upon which this 
 charge is founded are to this effect: " The authority of 
 the proposed Supreme Court of the United States, which 
 is to be a separate and independent body, will be superior 
 to that of the legislature. The power of construing the 
 laws according to the spirit of the Constitution, will enable 
 that court to mold 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 dan- 
 gerous. In Britain the judicial power, in the last resort, 
 resides in the House of Lords, which is a branch of the 
 legislature; and this part of the British government has 
 been imitated in the State constitutions in general. The 
 Parliament of Great Britain and the legislatures of the 
 several States can at any time rectify by law the ex- 
 ceptionable decisions of their respective courts. But 
 the errors and usurpations of the Supreme Court of the 
 United States will be uncontrollable and remediless." 
 
 ♦Article 3, sec. I. — PuBUUS. 
 
54° PROPER SEPARA TION OF SUPREME COURT. Wo. 81 
 
 This, upon examination, will be found to be made up 
 altogether of false reasoning upon misconceived fact. 
 
 In the first place, there is not a syllable in the plan 
 under consideration which directly empowers the national 
 ggg courts to construe the laws according to the 
 
 No. 78, spirit of the Constitution, or which gives them 
 
 any greater latitude in this respect than may be claimed 
 by the courts of every State. I admit, however, that the 
 Constitution ought to be the standard of construction 
 for the laws, and that wherever there is an evident oppo- 
 sition the laws ought to give place to the Constitution. 
 But this doctrine is not deducible from any circumstance 
 peculiar to the plan of the convention, but from the 
 general theory of a limited Constitution; and, as far as 
 it is true, is equally applicable to most, if not to all the 
 State governments. There can be no objection, there- 
 fore, on this account, to the federal judicature which 
 will not lie against the local judicatures in general, and 
 which will not serve to condemn every constitution that 
 attempts to set bounds to legislative discretion. 
 
 But perhaps the force of the objection may be thought 
 to consist in the particular organization of the Supreme 
 Court; in its being composed of a distinct body of 
 magistrates, instead of being one of the branches of the 
 legislature, as in the government of Great Britain and 
 that of this State. To insist upon this point, the authors 
 of the objection must renounce the meaning they have 
 labored to annex to the celebrated maxim requiring a 
 separation of the departments of power. It shall, never- 
 theless, be conceded to them, agreeably to the interpre- 
 tation given to that maxim in the course of these papers, 
 that it is not violated by vesting the ultimate power of 
 judging in a part of ^the legislative body. But though 
 this be not an absolute violation of that excellent rule, 
 yet it verges so nearly upon it, as on this account alone 
 to be less eligible than the mode preferred by the con- 
 vention. From a body which had even a partial agency 
 in passing bad laws, we could rarely expect a disposition 
 to temper and moderate them in the application. The 
 
Hamiltonl LEGISLATIVE BRANCH NON-JUDICIAL. S41 
 
 same spirit wiiich had operated in making them would 
 be too apt in interpreting them; still less could it be ex- 
 pected that men who had infringed the Constitution in the 
 character of legislators would be disposed to repair the 
 breach in the character of judges. Nor is this all. Every 
 reason which recommends the tenure of good behavior 
 for judicial offices militates against placing the judiciary 
 power, in the last resort, in a body composed of men. 
 chosen for a limited period. There is an absurdity in 
 referring the determination of causes, in the first instance, 
 to judges of permanent standing; in the last, to those of 
 a temporary and mutable constitution. And there is a 
 still greater absurdity in subjecting the decisions of men 
 selected for their knowledge of the laws, acquired by long 
 and laborious study, to the revision and control of men 
 who, for want of the same advantage, cannot but be 
 deficient in that knowledge. The members of the legis- 
 lature will rarely be chosen with a view to those qualifica- 
 tions 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,jthere will be no less reason to fear that the 
 pestilential breath of faction may poison the fountains of 
 justice. The habit of being continually marshaled on 
 opposite sides wil>be too apt to stifle the voice both of 
 law and of equity.' 
 
 These considerations teach us to applaud the wisdom 
 of those States who have committed the judicial power, 
 in the last resort, not to a part of the legislature, but to 
 distinct and independent bodies of men. Contrary to the 
 supposition of those who have represented the plan of 
 the convention in this respect as novel and unprec- 
 edented, it is but a copy of the constitutions of New 
 Hampshire, Massachusetts, Pennsylvania, Delaware, 
 Maryland, Virginia, North Carolina, South Carolina, and 
 Georgia; and the preference which has been given to 
 those models is highly to be commended. 
 
 ' The history of impeachment trials has proved this. — Editor. 
 
542 JUDICIAL ENCROACHMENTS. [No. 81 
 
 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 legisla- 
 tive act. Nor is there anything in the proposed Con- 
 stitution, 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 man- 
 ner and extent to the State governments as to the 
 national government now under consideration. Not 
 the least difference can be pointed out in any view of 
 the subject. 
 
 It may in the last place be observed that the supposed 
 danger of judiciary encroachments on the legislative 
 authority, which has been upon many occasions reiterated, 
 is in reality a phantom. Particular misconstructions and 
 contraventions of the will of the legislature may now and 
 then happen; but they can never be so extensive as to 
 amount to an inconvenience, or in any sensible degree to 
 affect the order of the political system. This may be 
 inferred with certainty from the general nature of the 
 judicial power, from the objects to which it relates, from 
 the manner in which it is exercised, from its comparative 
 weakness, and from its total incapacity to support its 
 usurpations by force.' And the inference is greatly 
 fortified by the consideration of the important constitu- 
 tional check which the power of instituting impeachments 
 in one part of the legislative body, and of determining 
 
 ' In the Cherokee case President Jackson said of the Chief Justice, 
 " John Marshall has pronounced his judgment ; let him enforce it if he 
 can." — Editor. 
 
Hamilton] THE CHECK OF IMPEACHMENT. 543 
 
 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 presump- 
 tion 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 
 objections 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 
 the relations which will subsist between these and the 
 former. 
 
 The power of constituting inferior courts is evidently 
 calculated to obviate the necessity of having recourse to 
 the Supreme Court in every case of federal cognizance. 
 It is intended to enable the national government to 
 institute or authorize, in each State or district of the 
 United States, a tribunal competent to the determination 
 of matters of national jurisdiction within its limits. 
 
 But why, it is asked, might not the same-purpose have 
 been accomplished by the instrumentality of the State 
 courts? This admits of different answers. Though the 
 fitness and competency of those courts should be allowed 
 in the utmost latitude, yet the substance of the power in 
 question may still be regarded as a necessary part of the 
 plan, if it were only to empower the national legislature 
 to commit to them the cognizance of causes arising out 
 of the national Constitution. To confer the power of 
 
 * This power has been absurdly represented as intended to abolish all 
 the county courts in the several States, which are commonly called 
 inferior courts. But the expressions of the Constitution are, to con- 
 stitute " tribunals inferior to the Supreme Court"; and the evident 
 design of the provision is to enable the institution of local courts, subor- 
 dinate to the Supreme, either in States or larger districts. It is ridiculous 
 to imagine that county courts were in contemplation. — Publius, 
 
544 INFERIOR COURTS. [So. 81 
 
 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 opiniop, substantial reasons against such a pro- 
 vision; the most discerning cannot foresee how far the 
 prevalency of a local spirit may be found to disqualify 
 the local tribunals for the jurisdiction of national causes; 
 whilst every man may discover that courts constituted 
 like those of some of the States would be improper chan- 
 nels of the judicial authority of the Union. State judges, 
 holding their offices during pleasure or from year to 
 year, will be too little independent to be relied upon for 
 an inflexible execution of the national laws. And if there 
 was a necessity for confiding the original cognizance of 
 causes arising under those laws to them, there would be 
 a correspondent necessity for leaving the door of appeal 
 as wide as possible. In proportion to the grounds of 
 confidence in, or distrust of, the subordinate tribunals, 
 ought to be the facility or difficulty of appeals. And 
 well satisfied as I am of the propriety of the appellate 
 jurisdiction, in the several classes of causes to which it 
 is extended by the plan of the convention, I should con- 
 sider everything calculated to give, in practice, an 
 unrestrained course to appeals, as a source of public and 
 private inconvenience. 
 
 I am not sure but that it will be found highly expedient 
 and useful to divide the United States into four or five 
 or half a dozen districts; and to institute a federal court 
 in each district, in lieu of one in every State. The judges 
 of these courts, with the aid of the State judges, may 
 hold circuits for the trial of causes in the several parts 
 of the respective districts. Justice through them may 
 be administered with ease and dispatch, 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 
 
Hamilton] DISTRIBUTION OP JUDICIAL POWER. S4g 
 
 should exist in the full extent in which it is to be found 
 in the proposed Constitution. 
 
 These reasons seem sufficient to satisfy a candid mind 
 that the want of such a power would have been a great 
 defect in the plan. Let us now examine in what manner 
 the judicial authority is to be distributed ^between the 
 supreme and the inferior courts of the Union. 
 
 The Supreme Court is to be invested with original 
 jurisdiction, only " in cases affecting ambassadors, other 
 public ministers, and consuls, and those in which a State 
 shall be a party." Public ministers of every class are 
 the immediate representatives of their sovereigns. All 
 questions in which they are concerned are so directly 
 connected with the public peace that, as well for the 
 preservation of this as out of respect to the sovereignties 
 they represent, it is both expedient and proper that such 
 questions should be submitted in the first instance to 
 the highest judicatory of the nation. Though consuls 
 have not in strictness a diplomatic character, yet as they 
 are the public agents of the nations to which they belong, 
 the same observation is in a great measure applicable to 
 them. In cases in which a State might happen to be a 
 party, it would ill suit its dignity to be turned over to an 
 inferior tribunal. 
 
 Though it may rather be a digression from- the immediate 
 subject of this paper, I shall take occasion to mention here 
 a supposition which has excited some alarm upon very 
 mistaken grounds. It has been suggested that an assign- 
 ment of the public securities of one State to the citizens 
 of another would enable them to prosecute that State in 
 the federal courts for the amount of those securities; a 
 suggestion which the following considerations prove to 
 be without foundation. 
 
 It is inherent in the nature of sovereignty not to be 
 amenable to the suit of an individual without its consent. 
 This is the general sense and the general practice of 
 mankind; and the exemption, as one of the attributes of 
 sovereignty, is now enjoyed by the government of every 
 State in the Union. Unless, therefore, there is a sur- 
 
S4^ FEDERAL POWER OVER STATE DEBTS. [No. 81 
 
 render of this immunity in the plan of the convention, it 
 will remain with the States, and the danger intimated 
 must be merely ideal. The circumstances which are 
 necessary to produce an alienation of State sovereignty 
 were discussed in considering the article of taxation 
 and need not be repeated here. A recurrence to the 
 principles there established will satisfy us that there is 
 no color to pretend that the State governments would by 
 the adoption of that plan be divested of the privilege of 
 paying their own debts in their own way, free from every 
 constraint but that which flows from the obligations of 
 good faith. The contracts between a nation and indi- 
 viduals are only binding on the conscience of the sovereign, 
 and have no pretensions to a compulsive force. They 
 confer no right of action independent of the sovereign 
 will. To what purpose would it be to authorize suits 
 against States for the debts they owe? How could 
 recoveries be enforced? It is evident it could not be 
 done without waging war against the contracting State; 
 and to ascribe to the federal courts by mere implication, 
 and in destruction of a pre-existing right of the State 
 governments, a power which would involve such a con- 
 sequence would be altogether forced and unwarrantable. 
 
 Let us resume the train of our observations. We have 
 seen that the original jurisdiction of the Supreme Court 
 would be confined to two classes of causes, and those of 
 a nature rarely to occur. In all other cases of federal 
 cognizance, the original jurisdiction would appertain to 
 the inferior tribunals; and the Supreme Court would 
 have nothing more than an appellate jurisdiction, "with 
 such exceptions and under such regulations as the Congress 
 shall make." 
 
 The propriety of this appellate jurisdiction has been 
 scarcely called in question in regard to matters of law; 
 but the clamors have been loud against it as applied to 
 matters of fact. Some well-intentioned men in this 
 State, deriving their notions from the language and 
 forms which obtain in our courts, have been induced to 
 consider it as an implied supersedure of the trial by jury, 
 
Hamilton] APPELLATE POWERS. S47 
 
 in favor of the civil-law mode of trial which prevails in 
 our courts of admiralty, probate, and chancery. A tech- 
 nical sense has been affixed to the term "appellate," 
 which, in our law parlance, is commonly used in refer- 
 ence 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 ap- 
 peal 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 "appel- 
 late," therefore, will not be understood in the same sense 
 in New England as in New York, which shows the im- 
 propriety of a technical interpretation derived from the 
 jurisprudence of any particular State. The expression, 
 taken in the abstract, denotes nothing more than the 
 power of one tribunal to review the proceedings of 
 another, either as to the law or fact, or both. The mode 
 of doing it may depend on ancient custom or legislative 
 provision (in a new government it must depend on the 
 latter), and may be with or without the aid of a jury, as 
 may be judged advisable. If, therefore, the re-examina- 
 tion 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 immedi- 
 ately out of the Supreme Court. 
 
 But it does not follow that the re-examination of a fact 
 once ascertained by a jury will be permitted in the 
 Supreme Court. Why may not it be said, with the strict- 
 est propriety, when a writ of error is brought from an in- 
 ferior 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 pos- 
 
 * This word is composed of jus and DiCTio,y«;'«V dictio, or a speaking 
 and pronouncing of the law. — Publius. 
 
S48 jVRlSblCtlOl^ AS TO Law AND FACT. tSo.Si 
 
 sible to separate them. Though the common law courts 
 of this State ascertain disputed facts by a jury, yet they 
 unquestionably have jurisdiction of both fact and law; 
 and accordingly, when the former is agreed in the plead- 
 ings, they have no recourse to a jury, but proceed at 
 once to judgment. I contend, therefore, on this ground, 
 that the expressions, "appellate jurisdiction, both as to 
 law and fact," do not necessarily imply a re-examination 
 in the Supreme Court oT 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 par- 
 ticular provision. The appellate jurisdiction of the 
 Supreme Court (it may have been argued) will extend to 
 causes determinable in different modes, some in the course 
 of the COMMON LAW, others in the course of the civil 
 LAW. In the former, the revision of the law only will be, 
 generally speaking, the proper province of the Supreme 
 Court; in the latter, the re- examination of the fact is 
 agreeable to usage, and in some cases, of which prize 
 causes are an example, might be essential to the preserva- 
 tion 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 inconven- 
 iences, it will be safest to declare generally that the 
 Supreme Court shall possess appellate jurisdiction both 
 as to law an&fact, and that this jurisdiction shall be sub- 
 ject to such exceptions and regulations as the national 
 legislature may prescribe. This will enable the govern- 
 
 * I hold that the States will have concurrent jurisdiction with the 
 subordinate federal judicatories, in many cases of federal cognizance, as 
 will be explained in my next paper. — Publius. 
 
fiamiltoni TklAL £y Jl/RY J^OT AMOLISHEV. S49 
 
 ment to modify it in such a manner as will best answer 
 the ends of public justice and security. 
 
 This view of the matter, at any rate, puts it out of all 
 doubt that the supposed abolition of the trial by jury by 
 the operation of this provision is fallacious and untrue. 
 The legislature of the United States would certainly have 
 full power to provide that in appeals to the Supreme 
 Court there should be no re-examination of facts where 
 they had been tried in the original causes by juries. 
 This would certainly be an authorized exception; but if, 
 for the reason already intimated, it should be thought 
 too extensive, it might be qualified with a limitation to 
 such causes only as are determinable at common law in 
 that mode of trial. 
 
 The amount of the observations hitherto made on the 
 authority of the judicial department is this: that it has 
 been carefully restricted to those causes which are mani- 
 festly proper for the cognizance of the national judica- 
 ture; that in the partition of this authority a very small 
 portion of original jurisdiction has been preserved to the 
 Supreme Court, and the rest consigned to the subordi- 
 nate tribunals; that the Supreme Court will possess an 
 appellate jurisdiction, both as to law and fact, in all the 
 cases referred to them, both subject to any exceptions and 
 regulations which may be thought advisable; that this 
 appellate jurisdiction does, in no case, abolish the trial by 
 jury; and that an ordinary degree of prudence and 
 integrity in the national councils will insure us solid ad- 
 vantages from the establishment of the proposed judi- 
 ciary, without exposing us to any of the inconveniences 
 which have been predicted from that source. 
 
 PUBLIUS. 
 
55° RELA TION OF STA TE COURTS TO FEDERAL. [No. 82 
 
 No. 82, (First collected edition, New York, 1788.) Hamilton. 
 
 SOME MISCELLANEOUS QUESTIONS REGARD- 
 ING THE JUDICIARY. 
 
 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 Congress exclu- 
 sively to supreme court — Relation between state and federal 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. 
 
 To the People of the State of New York: 
 
 The erection of a new government, whatever care or 
 wisdom may distinguish the work, cannot fail to originate 
 questions of intricacy and nicety; and these may, in a 
 particular manner, be expected to flow from the establish- 
 ment of a constitution founded upon the total or partial 
 incorporation of a number of distinct sovereignties. 
 'Tis time only that can mature and perfect so compound 
 a system, can liquidate the meaning of all the parts, and 
 can adjust them to each other in a harmonious and con- 
 sistent 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 concur- 
 rent 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 
 that the States will retain all pre-existing authorities which 
 may not be exclusively delegated to the federal head ; and 
 that this exclusive delegation can only exist in one of 
 
 *No. XXXI.— PUBLIUS. 
 
Hamilton] CONCURRENT JURISDICTION. 55' 
 
 three cases: where an exclusive authority is in express 
 terms granted to the Union; or where a particular 
 authority is granted to the Union, and the exercise of a 
 like authority is prohibited to the States; or where an 
 authority is granted to the Union, with which a similar 
 authority in the States would be utterly incompatible. 
 Though these principles may not apply with the same 
 force to the judiciary as to the legislative power, yet I 
 am inclined to think that they are, in the main, just with 
 respect to the former, as well as the latter. And, under 
 this impression, I shall lay it down as a rule that the 
 State courts will retain the jurisdiction they now have, 
 unless it appears to be taken away in one of the enumer- 
 ated modes. 
 
 The only thing in the proposed Constitution which 
 wears ihe appearance of confining the causes of federal 
 cognizance to the federal courts is contained in this pas- 
 sage: " The JUDICIAL POWER of the United States j-,^a:// 
 be vested in one Supreme Court, and in such inferior 
 courts as the Congress shall from time to time ordain and 
 establish. " This might either be construed to signify 
 that the supreme and subordinate courts of the Union 
 should alone have the power of deciding those causes to 
 which their authority is to extend; or simply to denote 
 that the organs of the national judiciary should be one 
 Supreme Court, and as many subordinate courts as 
 Congress should think proper to appoint; or, in other 
 words, that the United States should exercise the judicial 
 power with which they are to be invested, through one 
 supreme tribunal, and a certain number of inferior ones, 
 to be instituted by them. The first excludes, the last 
 admits, the concurrent jurisdiction of the State tri- 
 bunals; and as the first would amount to an alienation of 
 State power by implication, the last appears to me the 
 most natural and the most defensible construction. 
 
 But this doctrine of concurrent jurisdiction is only 
 clearly applicable to those descriptions of causes of 
 which the State courts have previous cognizance. It is 
 not equally evident in relation to cases which may grow 
 
552 STATE COURTS NOT MERELY LOCAL. [No. 82 
 
 out of, and be peculiar to, the Constitution to be es- 
 tablished; for not to allow the State courts a right of 
 jurisdiction in such cases can hardly be considered as 
 the abridgment of a pre-existing authority. I mean not 
 therefore to contend that the United States, in the 
 course of legislation upon the objects intrusted to their 
 direction, may not commit the decision of causes arising 
 upon a particular regulation to the federal courts solely, 
 if such a measure should be deemed expedient; but I 
 hold that the State courts will be divested of no part of 
 their primitive jurisdiction, further than may relate to 
 an appeal; and I am even of opinion that in every case 
 in which they were not expressly excluded by the future 
 acts of the national legislature, they will, of course, take 
 cognizance of the causes to which those acts may give 
 birth. This I infer from the nature of judiciary power, 
 and from the general genius of the system. The judi- 
 ciary power of every government looks beyond its 
 own local or municipal laws, and in civil cases lays 
 hold of all subjects of litigation between parties 
 within its jurisdiction, though the causes of dispute 
 are relative to the laws of the most distant part of 
 the globe. Those of Japan, not less than of New York, 
 may furnish the objects of legal discussion to our courts. 
 When, in addition to this, we consider the State govern- 
 ments and the national governments, as they truly are, 
 in the light of kindred systems, and as parts of one 
 WHOLE, the inference seems to be conclusive that the 
 State courts would have a concurrent jurisdiction in all 
 cases arising under the laws of the Union, where it was 
 not expressly prohibited. 
 
 Here another question occurs: What relation would 
 subsist between the national and State courts in these 
 instances of concurrent jurisdiction? I answer that an 
 appeal would certainly lie from the latter to the Supreme 
 Court of the United States. The Constitution in direct 
 terms gives an appellate jurisdiction to the Supreme 
 Court in all the enumerated cases of federal cognizance 
 in which it is not to have an original one, without a 
 
Hamilton] APPELLA TE JURISDICTION. 553 
 
 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 au- 
 thority of the Union may be eluded at the pleasure of 
 every plaintiff or prosecutor. Neither of these conse- 
 quences ought without evident necessity to be involved; 
 the latter would be entirely inadmissible, as it would 
 defeat some of the most important and avowed purposes 
 of the proposed government, and would essentially em- 
 barrass 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 conven- 
 tion is that all the causes of the specified classes shall, 
 for weighty public reasons, receive their original or 
 final determination in the courts of the Union. To 
 confine, therefore, the general expressions giving ap- 
 pellate jurisdiction to the Supreme Court to appeals 
 from the subordinate federal courts, instead of allow- 
 ing their extension to the State courts, would be to 
 abridge the latitude of the terms, in subversion of the 
 intent, contrary to every sound rule of interpretation. 
 
 But could an appeal be made to lie from the State 
 courts to the subordinate federal judicatories? This is 
 another of the questions which have been raised, and of 
 greater difficulty than the former. The following con- 
 siderations countenance the affirmative. The plan of 
 the convention, in the first place, authorizes the national 
 legislature "to constitute tribunals inferior to the Su- 
 
554 APPEALS TO INFERIOR COURTS. [No. 82 
 
 preme Court." * It declares, in the next place, that " the 
 JUDICIAL POWER of the United States shall be vested m one 
 Supreme Court, and in such inferior courts as Congress 
 shall ordain and establish"; and it then proceeds to 
 enumerate the cases to which this judicial power shall 
 extend. It afterwards divides the jurisdiction of the 
 Supreme Court into original and appellate, but gives no 
 definition of that of the subordinate courts. The only 
 outlines described for them are that they shall be "in- 
 ferior to the Supreme Court," and that they shall not 
 exceed the specified limits of the federal judiciary. 
 Whether their authority shall be original or appellate, or 
 both, is not declared. All this seems to be left to the 
 discretion of the legislature. And this being the case, 
 I perceive at present no impediment to the establishment 
 of an appeal from the State courts to the subordinate 
 national tribunals; and many advantages attending the 
 power of doing it may be imagined. It would diminish 
 the motives to the multiplication of federal courts, and 
 would admit of arrangements calculated to contract the 
 appellate jurisdiction of the Supreme Court. The State 
 tribunals may then be left with, a more entire charge of 
 federal causes; and appeals, in most cases in which they 
 may be deemed proper, instead of being carried to the 
 Supreme Court may be made to lie from the State courts 
 to district courts of the Union. 
 
 PUBLIUS. 
 * Sec. 8th, art. ist. — Publius. 
 
Hamilton] SILENCE AS TO JURY TRIAL. SSS 
 
 No. 83- (First collected edition, New York, 1788.) Hamilton. 
 
 TRIAL BY JURY IN RELATION TO THE 
 NATIONAL JUDICIARY. 
 
 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, considered 
 — Criminal and civil cases — Jury system in different States — Difficulty 
 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. 
 
 To the People of the State of New York: 
 
 The objection to the plan of the convention which has met with 
 most success in this State, and perhaps in several of the other 
 States, is that relative to the want of a constitutional provision 
 for the trial by jury in civil cases.' The disingenuous form in 
 which this objection is usually stated has been repeatedly adverted 
 to and exposed, but continues to be pursued in all the conversa- 
 tions and writings of the opponents of the plan. The mere silence 
 of the Constitution in regard to civil causes is represented as an 
 abolition of the trial by jury, and the declamations to which it has 
 afforded a pretext are artfully calculated to induce a persuasion 
 that this pretended abolition is complete and universal, extending 
 not only to every species of civil, but even to criminal causes. 
 To argue with respect to the latter would, however, be as vain and 
 fruitless as to attempt the serious proof of the existence of matter, 
 or to demonstrate any of those propositions which, by their own 
 internal evidence, force conviction, when expressed in language 
 adapted to convey their meaning. 
 
 With regard to civil causes, subtleties almost too contemptible 
 for refutation have been employed to countenance the surmise 
 that a thing which is only not provided for is entirely abolished. 
 Every man of discernment must at once perceive the wide differ- 
 ence between silence and abolition. But as the inventors of this 
 fallacy have attempted to support it by certain legal maxims of 
 interpretation, which they have perverted from their true meaning, 
 it may not be wholly useless to explore the ground they have 
 taken. 
 
 ' See Vlth and Vllth amendments. — Editor. 
 
SS6 NO LIMIT ON TRIAL BY JURY. [No. 83 
 
 The maxims on which they rely are of this nature : " A specifica' 
 tion of particulars is an exclusion of generals "; or, " The expres- 
 sion 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 interpretations are rules of common sense, 
 adopted by the courts in the construction of the laws. The true 
 test, therefore, of a just application of them is its conformity to the 
 source from which they are derived. This being the case, let me 
 ask if it is consistent with common sense to suppose that a pro- 
 vision obliging the legislative power to commit the trial of criminal 
 causes to juries, is a privation of its right to authorize or permit 
 that mode of trial in other cases ? Is it natural to suppose that a 
 command to do one thing is a prohibition to the doing of another, 
 which there was a previous power to do, and which is not incom- 
 patible with the thing commanded to be done ? If such a supposi- 
 tion 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 specifica- 
 tion of an obligation to try all criminal causes in a particular mode 
 excludes indeed the obligation or necessity of employing the same 
 mode in civil causes, but does not abridge the power of the legis- 
 lature to exercise that mode if it should be thought proper. The 
 pretense, therefore, that the national legislature would not be at 
 full liberty to submit all the civil causes of federal cognizance to 
 the determination of juries is a pretense destitute of all just 
 foundation. 
 
 From these observations this conclusion results : that the trial 
 by jury in civil cases would not be abolished ; and that the use 
 attempted to be made of the maxims which have been quoted is 
 contrary to reason and common sense, and therefore not admissible. 
 Even if these maxims had a precise technical sense, corresponding 
 with the idea of those who employ them upon the present occa- 
 sion, which, however, is not the case, they would still be inapplic- 
 able to a constitution of government. In relation to such a subject, 
 
Hamilton] LIMITS OP PEDeMAL JURISDICTION. SS7 
 
 the natural and obvious sense of its provisions, apart from any 
 technical rules, is the true criterion of construction. 
 
 Having now seen that the maxims relied upon will not bear the 
 use made of them, let us endeavor to ascertain their proper use and 
 true meaning. This will be best done by examples. The plan 
 of the convention declares that the power of Congress, or, in 
 other words, of the national legislature, shall extend to certain 
 enumerated cases. This specification of particulars evidently 
 excludes all pretension to a general legislative authority, because 
 an affirmative grant of special powers would be absurd, as well 
 as useless, if a general authority was intended. 
 
 In like manner the judicial authority of the federal judicatures 
 is declared by the Constitution to comprehend certain cases par- 
 ticularly specified. The expression of those cases marks the 
 precise limits beyond which the federal courts cannot extend their 
 jurisdiction, because, the objects of their cognizance being 
 enumerated, the specification would be nugatory if it did not 
 exclude all ideas of more extensive authority. 
 
 These examples are sufficient to elucidate the maxims which 
 have been mentioned, and to designate the manner in which they 
 should be used.' [But that there may be no misapprehension 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, con- 
 sidering this as an evil, should enact that she might dispose of her 
 property by deed executed in the presence of a magistrate. In such 
 a case there can be no doubt but the specification would amount to 
 an exclusion of any other mode of conveyance, because the woman 
 having no previous power to alienate her property, the specification 
 determines the particular mode which she is, for that purpose, to 
 avail herself of. But let us further suppose that in a subsequent 
 part of the same act it should be declared that no woman should 
 dispose of any estate of a determinate value without the consent of 
 three of her nearest relations, signified by their signing the deed ; 
 could it be inferred from this regulation that a married woman 
 might not procure the approbation of her relations to a deed for 
 conveying property of inferior value .' The position is too absurd 
 to merit a refutation, and yet this- is precisely the position which 
 those must establish who contend that the trial by juries in civil 
 
 ' The sentences which follow in brackets are omitted in the text of the 
 editions of 1802 and 1818.— Editor. 
 
558 * VALUE OF JURY SYSTEM. [No. 83 
 
 cases is abolished, because it is expressly provided for in cases of a 
 criminal nature.] 
 
 From these observations it must appear unquestionably true 
 that trial by jury is in no case abolished by the proposed Constitu- 
 tion, 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 situa- 
 tion 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 judicial y 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 contro- 
 versies between the citizens of the same State, unless where they 
 depend upon positive violations of the articles of union, by acts of 
 the State legislatures, will belong exclusively to the jurisdiction 
 of the State tribunals. Add to this that admiralty causes, and 
 almost all those which are of equity jurisdiction, are determinable 
 under our own government without the intervention of a jury, and 
 the inference from the whole will be that this institution, as it 
 exists with us at present, cannot possibly be affected to any great 
 extent by the proposed alteration in our system of government. 
 
 The friends and adversaries of the plan of the conven- 
 tion, if they agree in nothing else, concur at least in the 
 value they set upon the trial by jury; or if there is any 
 difference between them it consists in this: the former 
 regard it as a valuable safeguard to liberty; the latter 
 represent it as the very palladium of free government. 
 For my own part, the more the operation of the institu- 
 tion has fallen under my observation, the more reason I 
 have discovered for holding it in high estimation; and 
 it would be altogether superfluous to examine to what 
 extent it deserves to be esteemed useful or essential in a 
 representative republic, or how much more merit it may 
 be entitled to as a defense against the oppressions of an 
 hereditary monarch than ig a barrier to the tyranny of 
 popular magistrates in a popular government. Discus- 
 sions of this kind would be more curious than beneficial, 
 
 ' This clause in brackets is omitted in the revised text. — Editor, 
 
Hamilton] TRIAL BY JURY AND TAXATION. 559 
 
 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 existence of liberty and the trial by jury in 
 civil cases. Arbitrary impeachments, arbitrary methods 
 of prosecuting pretended offenses, and arbitrary punish- 
 ments upon arbitrary convictions, have ever appeared to 
 me to be the great engines of judicial despotism; and 
 See these have all relation to criminal proceedings. 
 
 No. 84. The trial by jury in criminal cases, aided by 
 
 the habeas corpus act, seems therefore to be alone con- 
 cerned in the question. And both of these are provided 
 for, in the most ample manner, in the plan of the con- 
 vention. 
 
 It has been observed that trial by jury is a safeguard 
 against an oppressive exercise of the power of taxation. 
 This observation deserves to be canvassed. 
 
 It is evident that it can have no influence upon the 
 legislature in regard to the amount of taxes to be laid, to 
 the objects upon which they are to be imposed, or to the 
 rule by which they are to be apportioned. If it can have 
 any influence, therefore, it must be upon the mode of 
 collection and the conduct of the officers intrusted with 
 the execution of the revenue laws. 
 
 As to the mode of collection in this State, under our 
 own Constitution, the trial by jury is in most cases out 
 of use. The taxes are usually levied by the more summary 
 proceeding of distress and sale, as in cases of rent. And 
 it is acknowledged on all hands that this is essential to 
 the efficacy of the revenue laws. The dilatory course of 
 a trial at law to recover the taxes, imposed on individuals 
 would neither suit the exigencies of the public nor pro- 
 mote the convenience of the citizens. It would often 
 occasion an accumulation of costs more burdensome than 
 the original sum of the tax to be levied. 
 
 And as to the conduct of the officers of the revenue, 
 the provision in favor of trial by jury in criminal cases 
 will afford the security aimed at. Willful abuses of a 
 public authority to the oppression of the subject, and 
 
S6o JURY TRIAL IN CIVIL CASES. [No. 83 
 
 every species of official extortion, are offenses against 
 the government, for which the persons who commit them 
 may be indicted and punished according to the circum- 
 stances of the case. 
 
 The excellence of the trial by jury in civil cases appears 
 to depend on circumstances foreign to the preservation 
 of liberty. The strongest argument in its favor is that 
 it is a security against corruption. As there is always 
 more time and better opportunity to tamper with a 
 standing body of magistrates than with a jury summoned 
 for the occasion, there is room t6 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 ofificers, and, acting individually, may be sup- 
 posed more accessible to the touch of corruption than 
 the judges, who are a collective body. It is not difficult 
 to see that it would be in the power of those officers to 
 select jurors who would serve the purpose of the party 
 as well as a corrupted bench. In the next place, it may 
 fairly be supposed that there would be less difficulty in 
 gaining some of the jurors promiscuously taken from the 
 public mass, than in gaining men who had been chosen 
 by the government for their probity and good character. 
 But making every deduction for these considerations, the 
 trial by jury must still be a valuable check upon corrup- 
 tion. It greatly multiplies the impediments to its success. 
 As matters now stand, it would be necessary to corrupt 
 both court and jury; for where the jury have gone evi- 
 dently wrong, the court will generally grant a new trial, 
 and it would be in most cases of little use to practice 
 upon the jury, unless the court could be likewise gained. 
 Here then is a double security, and it will readily be 
 perceived that this complicated agency tends to preserve 
 the purity of both institutions. By increasing the 
 obstacles to success, it discourages attempts to seduce 
 the integrity of either. The temptations to prostitution 
 
Hamilton] DIVERSITY OF SYSTEMS. 561 
 
 which the judges might have to surmount must cer- 
 tainly be much fewer, while the co-operation of a jury is 
 necessary, than they might be if they had themselves 
 the exclusive determination of all causes.' 
 
 Notwithstanding, therefore, the doubts I have ex- 
 pressed 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 govern- 
 ment, which is a composition of societies whose ideas 
 and institutions in relation to the matter materially vary 
 from each other, that difficulty must be not a little aug- 
 mented. For my own part, at every new view I take of 
 the subject, I become more convinced of the reality of 
 the obstacles which, we are authoritatively informed, 
 prevented the insertion of a provision on this head in 
 the plan of the convention. 
 
 The great difference between the limits of the jury trial in 
 different States is not generally understood ; and as it must have 
 considerable influence on the sentence we ought to pass upon the 
 omission complained of in regard to this point, an explanation of 
 it is necessary. In this State our judicial establishments resemble, 
 more nearly than in any other, those of Great Britain. We have 
 courts of common law, courts of probates (analogous in certain 
 matters to the spiritual courts in England), a court of admiralty, 
 and a court of chancery. In the courts of common law only the 
 trial by jury prevails, and this with some exceptions. In all the 
 others a single judge presides, and proceeds in general either 
 according to the course of the canon or civil law, without the aid 
 of a jury.* In New Jersey there is a court of chancery which 
 
 * It has been erroneously insinuated, with regard to the court of 
 chancery, that this court generally tries disputed facts by a jury. The 
 truth is that references to a jury in that court rarely happen, and are 
 in no case necessary but where the validity of a devise of land comes into 
 question. — PuBLius. 
 
 ' When the United States marshals, toward the end of the Federalist 
 
S62 JURY 7'RIAL IN THE STATES. [No. 83 
 
 proceeds like ours, but neither courts of admiralty nor of probates, 
 in the sense in which these last are established with us. In that 
 State the courts of common law have the cognizance of those 
 causes which with us are determinable in the courts of admiralty 
 and of probates, and of course the jury trial is more extensive in 
 New Jersey than in New York. In Pennsylvania, this is perhaps 
 still more the case, for there is no court of chancery in that State 
 and its common-law courts have equity jurisdiction. It has a 
 court of admiralty, but none of probates, at least on the plan of 
 ours. Delaware has in these respects imitated Pennsylvania. 
 Maryland approaches more nearly to New York, as does also 
 Virginia, except that the latter has' a plurality of chancellors. 
 North Carolina bears most affinity to Pennsylvania ; South Caro- 
 lina to Virginia. I believe, however, that in some of those States 
 which have distinct courts of admiralty, the causes depending in 
 them are triable by juries. In Georgia there are none but common- 
 law courts, and an appeal of course lies from the verdict of one 
 jury to another, which is called a special jury, and for which a 
 particular mode of appointment is marked out. In Connecticut 
 they have no distinct courts either of chancery or of admiralty, 
 and their courts of probates have no jurisdiction of causes. Their 
 common-law courts have admiralty and, to a certain extent, equity 
 jurisdiction. In cases of importance their general assembly is the 
 only court of chancery. In Connecticut, therefore, the trial by 
 jury extends in practice further than in any other State yet men- 
 tioned. Rhode Island is, I believe, in this particular, pretty much 
 in the situation of Connecticut. Massachusetts and New Hamp- 
 shire, in regard to the blending of law, equity, and admiralty juris- 
 dictions, 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 unknovfrn, 
 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 corre- 
 sponded with the circumstances of all the States ; and secondly, 
 
 regime, packed the juries to secure partisan verdicts, Jefferson drafted 
 a scheme for the election of jurors by popular vote. See " Writings 
 of Jefferson " (Ford's edition), vii. 285. — Editor. 
 
HamiltonJ PROPOSITIONS BY ANIV-FEDERALISTS. 563 
 
 that more or at least as much might have been hazarded by taking 
 the system of any one State for a standard, as by omitting a 
 provision altogether and leaving the matter, as has been done, to 
 legislative regulation. 
 
 The propositions which have been made for supplying the omis- 
 sion have rather served to illustrate than to obviate the difficulty 
 of the thing. The minority of Pennsylvania have proposed this 
 mode of expression for the- purpose — " Trial by jury shall be as 
 heretofore " — and this I maintain would be senseless and nugatory. 
 The United States, in their united or collective capacity, are the 
 OBJECT to which all general provisions in the Constitution must 
 necessarily be construed to refer. Now it is evident that though 
 trial by jury, with various limitations, is known in each State in- 
 dividually, yet in the United States, as such, it is at this time 
 altogether unknown, because the present federal government has 
 no judiciary power whatever ; and consequently there is no proper 
 antecedent or previous establishment to which the term heretofore 
 could relate. It would therefore be destitute of a precise meaning, 
 and inoperative from its uncertainty. 
 
 As, on the one hand, the form of the provision would not fulfill 
 the intent of its proposers, so, on the other, if I apprehend that 
 intent rightly, it would be in itself inexpedient. I presume it to be, 
 that causes in the federal courts should be tried by jury, if, in the 
 State where the courts sat, that mode of trial would obtain in a 
 similar case in the State courts : that is to say, admiralty causes 
 should be tried in Connecticut by a jury, in New York without 
 one. The capricious operation of so dissimilar a method of trial 
 in the same cases, under the same government, is of itself sufficient 
 to indispose every well-regulated judgment toward 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 objec- 
 tion. I feel a deep and deliberate conviction that there 
 are many cases in which the trial by jury is an ineligible 
 one. I think it so particularly in cases which concern 
 the public peace with foreign nations — that is, in most 
 cases where the question turns wholly on the laws of 
 nations. Of this nature, among others, are all prize 
 causes. Juries cannot be supposed competent to inves- 
 tigations that require a thorough knowledge of the laws 
 and usages of nations; and they will sometimes be 
 
5^4 JURIES AND FOREIGNERS. [No. 83 
 
 under the influence of impressions which will not suffer 
 them to pay sufficient regard to those considerations 
 of public policy which ought to guide their inquiries. 
 There would of course be always danger that the rights 
 of other nations might be infringed by their decisions, 
 so as to afford occasions of reprisal and war. Though 
 the proper province of juries be to determine matters 
 of fact, yet in most cases legal consequences are com- 
 plicated 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 determin- 
 able in Great Britain, in the last resort, before the king 
 himself in his privy council, where the fact, as well as 
 the law, undergoes a re-examination. This alone demon- 
 strates the impolicy of inserting a fundamental provision 
 in the Constitution which would make the State systems 
 a standard for the national government in the article 
 under consideration, and the danger of encumbering the 
 government with any constitutional provisions the pro- 
 priety of which is not indisputable; 
 
 My convictions are equally strong that great advan- 
 tages result from the separation of the equity from the 
 See law jurisdiction, and that the causes which 
 
 Ko. 80. belong to the former would be improperly 
 
 committed to juries. The great and primary use of a 
 court of equity' is to give relief in extraordinary cases, 
 which are exceptions* 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; 
 
 * It is true that the principles by which that relief is governed are 
 now reduced to a regular system ; but it is not the less true that they are 
 in the main applicable to special circumstances, which form exceptions 
 to general rules. — Publius. 
 
 'See " Writings of Jefferson" (Ford's edition), iv. log, for an account 
 of the origin of equity courts. — Editor. 
 
Hamilton] EQUITY JURISDICTION. 565 
 
 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. Be- 
 sides this, the circumstances that constitute cases proper 
 for courts of equity are in many instances so nice and 
 intricate that they are incompatible with the genius of 
 trials by jury. They require often such long, deliberate, 
 and critical investigation as would be impracticable to 
 men called from their occupations and obliged to decide 
 before they were permitted to return to them. The sim- 
 plicity 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 par- 
 ticulars. 
 
 It is true that the separation of the equity from the 
 legal jurisdiction is peculiar to the English system of 
 jurisprudence, which is the model that has been followed 
 in several of the States. But it is equally true that the 
 trial by jury has been unknown in every case in which 
 they have been united. And the separation is essential 
 to the preservation of that institution in its pristine 
 purity. The nature of a court of equity will readily 
 permit the extension of its jurisdiction to matters of 
 law; but it is not a little to be suspected that the at- 
 tempt to extend the jurisdiction of the courts of law to 
 matters of equity will not only be unproductive of the 
 advantages which may be derived from courts of chancery 
 on the plan upon which they are established in this State, 
 but will tend gradually to change the nature of the courts 
 of law, and to undermine the trial by jury, by introduc- 
 ing questions too complicated for a decision in that mode. 
 
 These appeared to be conclusive reasons against incorporating 
 the systems of all the States, in the formation of the national judi- 
 ciary, according to what may be conjectured to have been the 
 attempt of the Pennsylvania minority. Let us now examine how 
 far tlie proposition of Massachusetts is calculated to remedy the 
 supposed defect. 
 
S66 PROPOSAL OF MASSACHUSETTS. [No. 83 
 
 It is in this form : " In civil actions between citizens of different 
 States, every issue of fact, arising in actions at common law, may 
 be tried by a jury if the parties, or either of them, request it." ' 
 
 This, at best, is a proposition confined to one description of 
 causes ; and the inference is fair, either that the Massachusetts 
 convention considered that as the only class of federal causes in 
 which the trial by jury would be proper ; or that, if desirous of a 
 more extensive provision, they found it impracticable to devise one 
 which would properly answer the end. If the tirst, the omission 
 of a regulation respecting so partial an object can never be con- 
 sidered as a material imperfection in the system. If the last, it 
 affords a strong corroboration of the extreme difificulty of the thing. 
 
 But this is not all : if we advert to the observations already made 
 respecting the courts that subsist in the several States of the 
 Union and the different powers exercised by them, it will appear 
 that there are no expressions more vague and indeterminate than 
 those which have been employed to characterize that species of 
 causes which it is intended shall be entitled to a trial by jury. In 
 this State the boundaries between actions at common law and 
 actions of equitable jurisdiction are ascertained in conformity to 
 the rules which prevail in England upon that subject. In many of 
 the other States the boundaries are less precise. In some of them 
 every cause is to be tried in a court of common law, and upon that 
 foundation every action may be considered as an action at com- 
 mon law, to be determined by a jury, if the parties, or either of 
 them, choose it. Hence, the same irregularity and confusion 
 would be introduced by a compliance with this proposition that 
 I have already noticed as resulting from the regulation proposed 
 by the Pennsylvania minority. In one State a cause would receive 
 its determination from a jury, if the parties, or either of them, re- 
 quested it; but in another State, a cause exactly similar to the 
 other must be decided without the intervention of a jury, because 
 the State judicatories varied as to common-law jurisdiction. 
 
 It is obvious, therefore, that the Massachusetts proposition upon 
 this subject cannot operate as a general regulation, until some uni- 
 form plan with respect to the limits of common law and equitable 
 jurisdictions shall be adopted by the different States. To devise 
 a plan of that kind is a task arduous in itself, and which it would 
 require much time and reflection to mature. It would be ex- 
 tremely difKcult, if not impossible, to suggest any general regula- 
 tion that would be acceptable to all the States in the Union, or 
 that would perfectly quadrate with the several State institutions. 
 
 ' See Appendix p. 632 — Editor. 
 
Hamilton] ^£IV YORK SYSTEM. 567 
 
 It may be asked, Why could not a reference have been made to 
 the Constitution of this State, taking that, which is allowed by me 
 to be a good one, as a standard for the United States ? I answer 
 that it is not very probable the other States would entertain the 
 same opinion of our institutions as we do ourselves. It is natural to 
 suppose that they are hitherto more attached to their own, and that 
 each would struggle for the preference. If the plan of taking one 
 State as a model for the whole had been thought of in the conven- 
 tion, it is to be presumed that the adoption of it in that body would 
 have been rendered difficult by the predilection of each representa- 
 tion in favor of its own government ; and it must be uncertain 
 which of the States would have been taken as the model. It has 
 been shown that many of them would be improper ones. And I 
 leave it to conjecture whether, under all circumstances, it is most 
 likely that New York, or some other State, would have been pre- 
 ferred. But admit that a judicious selection could have been 
 effected in the convention; still there would have been great danger 
 of jealousy and disgust in the other States at the partiality which 
 had been shown to the institutions of one. The enemies of the 
 plan would have been furnished with a fine pretext for raising a 
 host of local prejudices against it, which perhaps might have haz- 
 ardecV, 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 pro- 
 vision 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 consider- 
 ations which have been stated in discussing the proposi- 
 tion of the minority of Pennsylvania must satisfy every 
 sober mind that the establishment of the trial by jury in 
 a// 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 essen- 
 tial object of introducing a firm national government. 
 
 I cannot but persuade myself, on the other hand, that 
 the different lights in which the subject has been placed 
 
568 IMPORTANCE IN CRIMINAL CASES. [No. 83 
 
 in the course of these observations, will go far toward 
 removing in candid minds the apprehensions they may 
 have entertained on the point. They have tended to 
 show that the security of liberty is materially concerned 
 only in the trial by jury in criminal cases, which is 
 provided for in the most ample manner in the plan of the 
 convention ; that even in far the greatest proportion of 
 civil cases, and those in which the great body of the 
 community is interested, that mode of trial will remain 
 in its full force, as established in the State constitutions, 
 untouched and unaffected by the plan of the convention; 
 that it is in no case abolished* 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 acknowl- 
 edge myself to be convinced that even in this State it 
 might be advantageously extended to some cases to which 
 it does not at present apply, and might as advantageously 
 be abridged in others. It is conceded by all reasonable 
 men that it ought not to obtain in all cases. The examples 
 of innovations which contract its ancient limits, as well 
 in these States as in Great Britain, afford a strong pre- 
 sumption that its former extent has been found inconven- 
 ient, and give room to suppose that future experience may 
 discover the propriety and utility of other exceptions. 
 I suspect it to be impossible in the nature of the thing to 
 fix the salutary point at which the operation of the institu- 
 tion ought to stop, and this is with me a strong argument 
 for leaving the matter to the discretion of the legislature. 
 
 * 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. — Publius. 
 
Hamilton] PARTICULAR PROVISIONS INADEQUATE. 569 
 
 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 afifirmed that more numerous 
 encroachments have been made upon the trial by jury in 
 this State since the Revolution, though provided for by a 
 positive article of our constitution, than has happened in 
 the same time either in Connecticut or Great Britain. 
 It may be added that these encroachments have generally 
 originated with the men who endeavor to persuade the 
 people they are the warmest defenders of popular liberty, 
 but who have rarely suffered constitutional obstacles to 
 arrest them in a favorite career. The truth is that the 
 general genius of a government is all that can be sub- 
 stantially relied upon for permanent effects. Particular 
 provisions, though not altogether useless, have far less 
 virtue and efficacy than»are commonly ascribed to them; 
 and the want of them will never be, with men of sound 
 discernment, a decisive objection to any plan which 
 exhibits the leading characters of a good government. 
 
 It certainly sounds not a little harsh and extraordinary 
 to affirm that there is no security for liberty in a Consti- 
 tution which expressly establishes the trial by jury in 
 criminal cases because it does not do it in civil also; 
 while it is a notorious fact that Connecticut, which has 
 been always regarded as the most popular State in the 
 Union, can boast of no constitutional provision for 
 either. Publius. 
 
 No. 84. (First collected edition, New York, 1788.) Hamilton. 
 
 LACK OF A BILL OF RIGHTS. 
 
 Bill of rights — Liberty of the press — Seat of government too remote — 
 More provision for debts due to the United States — Additional expenses 
 of new system — Concluding remarks. 
 
 To the People of the State of New York: 
 
 In the course of the foregoing review of the Constitu- 
 tion I have taken notice of, and endeavored to answer 
 most of the objections which have appeared against it. 
 
S7<5 PRIVILEGES W CONSTITUTION. [No. 84 
 
 There, however, remain a few which either did not fall 
 naturally under any particular head or were forgotten in 
 their proper places. These shall now be discussed; but 
 as the subject has been drawn into great length, I shall 
 so far consult brevity as to comprise all my observations 
 on these miscellaneous points in a single paper. 
 
 The most considerable of the remaining objections is 
 that the plan of the convention contains no bill of rights. 
 Among other answers given to this, it has been upon 
 different occasions remarked that the constitutions of 
 several of the States are in a similar predicament. I add 
 that New York is of the number. And yet the opposers 
 of the new system in this State, who profess an unlimited 
 admiration for its constitution, are among the most in- 
 temperate partisans of a bill of rights. To justify their 
 zeal in this matter they allege two things: one is that, 
 though the constitution of New York has no bill of rights 
 prefixed to it, yet it contains in the body of it various 
 provisions in favor of particular privileges and rights, 
 which in substance amount to the same thing; the other 
 is that the Constitution adopts in their full extent the 
 common and statute law of Great Britain, by which many 
 other rights, not expressed in it, are equally secured. 
 
 To the first I answer that the Constitution proposed 
 by the convention contains, as well as the constitution of 
 this State, a number of such provisions. 
 
 Independent of those which relate to the structure of the govern- 
 ment, we find the following : Article i, section 3, clause 7 — "Judg- 
 ment 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 indict- 
 ment, trial, judgment, and punishment according to law." Section 
 9 of the same article, clause 2 — " The privilege of the writ of 
 habeas corpus shall not be suspended, unless when in cases of re- 
 bellion 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. 
 
Hamilton] HABEAS CORPUS. 571 
 
 emolument, office, or title of any kind whatever, from any king, 
 prince, or foreign state." Article 3, section 2, clause 3—" The 
 trial of all crimes, except in cases of impeachment, shall be by 
 jury; and such trial shall be held in the State where the said 
 crimes shall have been committed ; but when not committed 
 within any State, the trial shall be at such place or places as the 
 Congress may by law have directed." Section 3, of the same 
 article—" Treason against the United States shall consist only in 
 levying war against them, or in adhering to their enemies, giving 
 them aid and comfort. No person shall be convicted of treason, 
 unless on the testimony of two witnesses to the same overt act, or 
 on confession in open court." And clause 3 of the same section 
 — " The Congress shall have power to declare the punishment of 
 treason ; but no attainder of treason shall work corruption of 
 blood, or forfeiture, except during the life of the person attainted." 
 It may well be a question whether these are not, upon 
 the whole, of equal importance with any which are to be 
 found in the constitution of this State. The establish- 
 ment of the writ oi habeas corpus, the prohibition of ex 
 post facto laws, and of titles of nobility, to which we 
 have no corresponding provision in our constitution, are per- 
 haps greater securities to liberty and republicanism than 
 any it contains. The creation of crimes after the com- 
 mission of the fact, or, in other words, the subjecting of 
 men to punishment for things which, when they were 
 done, were breaches of no law, and the practice of arbi- 
 trary imprisonments, have been in all ages the favorite 
 and most formidable instruments of tyranny. The ob- 
 servations 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 confiscate his 
 estate, without accusation or trial, would be so gross and 
 notorious an act of despotism as must at once convey 
 the alarm of tyranny throughout the whole nation; but 
 confinement of the person, by secretly hurrying him to 
 See jailj where his sufferings are unknown or for- 
 
 Ho. 83. gotten, is a less public, a less striking, and 
 
 therefore a more dangerous engine of arbitrary govern- 
 ment." And as a remedy for this fatal evil he is every- 
 
 * Vide Blackstone'? " Commentarie.?," vol. i. p. 136. — Publius, 
 
572 TITLES OF NOBILITY. LNo. 84 
 
 where 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 
 denominated the corner stone of republican government; 
 for so long as they are excluded, there can never be 
 serious danger that the government will be any other 
 than that of the people. 
 
 To the second — that is, to the pretended establishment 
 of the common and 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 recog- 
 nize the ancient law, and to remove doubts which might 
 have been occasioned by the Revolution. This conse- 
 quently can be considered as no part of a declaration of 
 rights, which under our constitutions must be intended 
 as limitations of the power of the government itself. 
 
 It has been several times truly remarked that bills of 
 rights are, in their origin, stipulations between kings and 
 their subjects, abridgments of prerogative in favor of 
 
 * Vide Blackstone's " Commentaries," vol. iv. p. 438. — PuBLlus. 
 ' In connection with the Burr plot Jefferson endeavored to have the 
 right of Habeas Corpus suspended, but, to avoid the responsibility for 
 what might prove unpopular, he sought to have it done by act of Con- 
 gress. The Senate passed a bill for the purpose, but the more popular 
 House refused, by an overwhelming majority, to concur. In 1862 
 Lincoln faced the difficulty, without any attempt at indirection, by sus- 
 pending the right of Habeas Corpus by proclamation. This led to a warm 
 discussion of the power of the Executive in this matter, the ablest argu- 
 ments being Binney 's ' ' Privileges of the Writ of Habeas Corpus under the 
 Constitution," Philadelphia, 1862; Nicholas's " Habeas Corpus," Louis- 
 ville, 1862; Montgomery's "Writ of Habeas Corpus," Philadelphia, 1862; 
 Parker's " Habeas Corpus and Martial Law " Philadelphia, 1862 ; " The 
 Suspending Power and The Writ of Habeas Corpus," Philadelphia, 1862; 
 and Whiting's " Military Arrests in Time of War," Washington, 1863. 
 Lincoln's own view is given in his reply to a Committee of Albany Dem- 
 ocrats, June 12, 1863, first printed in " Is the President of the United 
 States violating the Constitution in making Arrests?" — Editor. 
 
Hamilton] ENGLISH RIGHTS. 573 
 
 privilege, reservations of rights not surrendered to the 
 prince. Such was Magna Charta, obtained by the 
 barons, sword in hand, from King John. Such were 
 the subsequent confirmations of that charter by succeed- 
 ing princes. Such was the Petition of Right assented to 
 by Charles I., in the beginning of his reign. Such, also, 
 was the Declaration of Right presented by the Lords and 
 Commons to the Prince of Orange in 1688, and afterward 
 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 representa- 
 tives and servants. Here, in strictness, the people sur- 
 render nothing; and, as they retain everything, they have 
 no need of particular reservations. "We, the people 
 of the United States, to secure the blessings of liberty 
 to ourselves and our posterity, do ordain and establish this 
 Constitution for the United States of America." Here 
 is a better recognition of popular rights than volumes of 
 those aphorisms which make the principal figure in several 
 of our State bills of rights, and which would sound much 
 better in a treatise of ethics than in a constitution of 
 government. 
 
 But a minute detail of particular rights is certainly far 
 less applicable to a Constitution like that under 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 constitution of this State. But the truth is that 
 both of them contain all which, in relation to their 
 objects, is reasonably to be desired. 
 
 I go further, and affirm that bills of rights, in the sense 
 and to the extent in which they are contended for, are 
 not only unnecessary in the proposed Constitution, but 
 would even be dangerous. They would contain various 
 
574 INFERENCE FROM SPECIFIC CLAIMS. LNo. 84 
 
 exceptions to powers not granted; and, on this very 
 account, would afford a colorable pretext to claim more 
 than were granted. For why declare that things shall 
 not be done which there is no power to do? Why, for 
 instance, should it be said that the liberty of the press 
 shall not be restrained, when no power is given by which 
 restrictions may be imposed? ' I will not contend that 
 such a provision would confer a regulating power; but 
 it is evident that it would furnish, to men disposed to 
 usurp, a plausible pretense for claiming that power. 
 They might urge with a semblance of reason that the 
 Constitution ought not to be charged with the absurdity 
 of providing against the abuse of an authority which was 
 not given, and that the provision against restraining the 
 liberty of the press afforded a clear implication that a 
 power to prescribe proper regulations concerning it was 
 intended to be vested in the national government. This 
 may serve as a specimen of the numerous handles which 
 would be given to the doctrine of constructive powers, 
 by the indulgence of an injudicious zeal for bills of 
 rights. 
 
 On the subject of the liberty of the press, as much as 
 has been said, I cannot forbear adding a remark or two: 
 in the first place, I observe that there is not a syllable 
 concerning it in the constitution of this State; in the 
 next, I contend that whatever has been said about it 
 in that of any other State amounts to nothing. What 
 signifies a declaration that "the liberty of the press shall 
 be inviolably preserved " ? What is the liberty of the 
 press? Who can give it any definition which would not 
 leave the utmost latitude for evasion? I hold it to be 
 impracticable; and from this I infer that its security. 
 
 ' Although the first amendment added a distinct guaranty to this con- 
 tention that no power to interfere with the liberty of the press was 
 contained in the national constitution, the sedition law was placed upon 
 the statute book within ten years. Hamilton's letter to Dayton 
 (" Works," iv. 387) shows that he considered this law both "constitu- 
 tional and politic." The military suppression of certain papers during 
 the Civil War indicates of how little account constitutional guaranties are 
 in moments of necessity. — Editor. 
 
Btamiiton] thS, CONSTITUTION A SILL OP RIGHTS. 57S 
 
 whatever fine declarations may be inserted in any con- 
 stitution respecting it, must altogether 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 
 conclude the point. The truth is, after all the declama- 
 tions 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 Consti- 
 tution, if adopted, will be the bill of rights of the Union. 
 Is it one object of a bill of rights to declare and 
 specify the political privileges of the citizens in the 
 structure and administration of the government? This 
 is done in the most ample and precise manner in the plan 
 of the convention; comprehending various precautions 
 for the public security which are not to be found in any 
 of the State constitutions. Is another object of a bill of 
 rights to define certain immunities and modes of proceed- 
 ing, which are relative to personal and private concerns? 
 
 * To show that there is a power in the Constitution by which the 
 liberty of the press may be affected, recourse has been had to the power 
 of taxation. It is said that duties may be laid upon the publications so 
 high as to amount to a prohibition. I know not by what logic it could 
 be maintained that the declarations in the State constitutions in favor 
 of the freedom of the press would be a constitutional impediment to the 
 imposition of duties upon publications by the State legislatures. It can- 
 not certainly be pretended that any degree of duties, however low, would 
 be an abridgment of the liberty of the press. We know that newspapers 
 are taxed in Great Britain, and yet it is notorious that the press nowhere 
 enjoys greater liberty than in that country. And if duties of any kind 
 may be laid without a violation of that liberty, it is evident that the ex- 
 tent must depend on legislative discretion regulated by public opinion; 
 so that, after all, general declarations respecting the liberty of the press 
 will give it no greater security than it will have without them. The 
 same invasions of it may be effected under the State constitutions which 
 contain those declarations through the means of taxation, as under the 
 proposed Constitution, which has nothing of the kind. It would be 
 quite as significant to declare that government ought to be free, that 
 taxes ought not to be excessive, etc., as that the liberty of the press 
 ought not to be restrained. — PUBLIUS. 
 
57^ DISTANCE OF GOVERNMENT. [No. 84 
 
 This we have seen has also been attended to, in a variety 
 of cases, in the same plan. Adverting, therefore, to the 
 substantial meaning of a bill of rights, it is absurd to 
 allege that it is not to be found in the work of the con- 
 vention. It may be said that it does not go far enough, 
 though it will" not be easy to make this appear; but it 
 can with no propriety be contended that there is no such 
 thing. It certainly must be immaterial what mode is 
 observed as to the order of declaring the rights of the 
 citizens, if they are to be found in any part of the instru- 
 ment which establishes the government. And hence it 
 must be apparent that much of what has been said on 
 this subject rests merely on verbal and nominal distinc- 
 tions, 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 anything, 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 
 safely be intrusted to a body which is not under every requisite 
 control. But there are satisfactory reasons to show that the ob- 
 jection is in reality not well founded. There is in most of the 
 arguments which relate to distance a palpable illusion of the 
 imagination. What are the sources of information by which 
 the people in Montgomery county must regulate their judgment 
 of the conduct of their representatives in the State legislature? 
 Of personal observation they can have no benefit. This is 
 confined to the citizens on the spot. They must therefore 
 depend on the information of intelligent men, in whom they con- 
 fide ; and how must these men obtain their information ? Evi- 
 dently from the complexion of public measures, from the public 
 prints, from correspondences with their representatives, and with 
 other persons who reside at the place of their deliberations. This 
 does not apply to Montgomery county only, but to all the counties 
 at any considerable distance from the seat of government. 
 
 It is equally evident that the same sources of information would 
 be open to the people in relation to the conduct of their repre- 
 
Hamilton] DEBTS OF THE UNION. 577 
 
 sentatives in the general government, and the impediments to a 
 prompt communication which distance may be supposed to create 
 will be overbalanced by the effects of the vigilance of the State 
 governments. The executive and legislative bodies of each State 
 will be so many sentinels over the persons employed in every 
 department of the national administration ; and as it will be in 
 their power to adopt and pursue a regular and effectual system of 
 intelligence, they can never be at a loss to know the behavior of 
 those who represent their constituents in the national councils, and 
 can readily communicate the same knowledge to the people. Their 
 disposition to apprise the community of whatever may prejudice its 
 interests from another quarter may be relied upon, if it were only 
 from the rivalship of power. And we may conclude with the 
 fullest assurance that the people, through that channel, will be 
 better informed of the conduct of their national representatives 
 than they can be by any means they now possess of that of their 
 State representatives. 
 
 It ought also to be remembered that the citizens who inhabit the 
 country at and near the seat of government will, in all questions 
 that affect the general liberty and prosperity, have the same inter- 
 est with those who are at a distance, and that they will stand ready 
 to sound the alarm when necessary, and to point out the actors in 
 any pernicious project. The public papers will be expeditious 
 messengers of intelligence to the most remote inhabitants of the 
 Union. 
 
 Among the many curious objections which have appeared 
 against the proposed Constitution, the most extraordinary and the 
 least colorable is derived from the want of some provision respect- 
 ing the debts due to the United States. This has been represented 
 as a tacit relinquishment of those debts and as a wicked con- 
 trivance to screen public defaulters. The newspapers have teemed 
 with the most inflammatory railings on this head ; yet there is 
 nothing clearer than that the suggestion is entirely void of founda- 
 tion, the offspring of extreme ignorance or extreme dishonesty. In 
 addition to the remarks I have made upon the subject in another 
 place, I shall only observe that as it is a plain dictate of common 
 sense, so it is also an established doctrine of political law, that 
 " States neither lose any of their rights, nor are discharged from 
 any of their obligations, by a change in the form of their civil 
 government'' * 
 
 * Vide Rutherforth's " Institutes," vol. ii. book II. chap. x. sect. xiv. 
 and XV. Vide also Grotius, book II. chap. ix. sect. viii. and ix. — 
 PUBLIUS. 
 
S78 EXPENSE OF MEW GOVERNMENT. [No. 84 
 
 The last objection of any consequence which I at present recol- 
 lect turns upon the article of expense. If it were even true 
 gee that the adoption of the proposed government would 
 
 No. 13. 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 con- 
 vinced that Union is the basis of their political happiness. Men of 
 sense of all parties now, with few exceptions, agree that it can- 
 not be preserved under the present system, nor without radical 
 alterations ; that new and extensive powers ought to be granted to 
 the national head, and that these require a different organization of 
 the federal government — a single body being an unsafe depositary 
 of such ample authorities. In conceding all this, the question of 
 expense must be given up ; for it is impossible, with any degree of 
 safety, to narrow the foundation upon which the system is to 
 stand. The two branches of the legislature are, in the first 
 instance, to consist of only sixty-five persons, which is the same 
 number of which Congress, nnder the existing Confederation, may 
 be composed. It is true that this number is intended to be 
 increased, but this is to keep pace with the progress of the popu- 
 lation and resources of the country. It is evident that a less 
 number would, even in the first instance, have been unsafe, and 
 that a continuance of the present number would, in a more 
 advanced stage of population, be a very inadequate representation 
 of the people. 
 
 Whence is the dreaded augmentation of expense to spring ? 
 One source indicated is the multiplication of offices under the new 
 government. Let us examine this a little. 
 
 It is evident that the principal departments of the administration 
 under the present government are the same which will be required 
 under the new. There are now a Secretary of War, a Secre- 
 tary 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 ambassa- 
 dors and other ministers and agents in foreign countries, the pro- 
 posed Constitution can make no other difference than to render 
 their characters, where they reside, more respectable, and their 
 services more useful. As to persons to be employed in the collec- 
 tion of the revenues, it is unquestionably true that these will form 
 a very considerable addition to the number of federal officers ; 
 but it will not follow that this will occasion an increase of public 
 
fiamllton] SAVING IN STATE ESTAhLiSHMEMrs. $7^ 
 
 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 descrip- 
 tion. The States individually will stand in no need of any for this 
 purpose. What difference can it make, in point of expense, to pay 
 officers of the customs appointed by the State or by the United 
 States ? [There is no good reason to suppose that either the num- 
 ber or the salaries of the latter will be greater than those of the 
 former.] ' 
 
 Where, then, are we to seek for those additional articles of 
 expense which are to swell the account to the enormous size that 
 has been represented to us ? The chief item which occurs to me 
 respects the support of the judges of the United States. I do not 
 add the President, because there is now a president of Congress, 
 whose expenses may not be far, if anything, short of those which 
 will be incurred on account of the President of the United States. 
 The support of the judges will clearly be an extra expense, but to 
 what extent will depend on the particular plan which may be 
 adopted in regard to this matter. But upon no reasonable plan 
 can it amount to a sum which will be an object of material 
 consequence. 
 
 Let us now see what there is to counterbalance any extra ex- 
 pense that may attend the establishment of the proposed govern- 
 ment. The first thing which presents itself is that a great part of 
 the business which now keeps Congress sitting through the year 
 will be transacted by the President. Even the management of 
 foreign negotiations will naturally devolve upon him, according to 
 general principles concerted with the Senate, and subject to their 
 final concurrence. Hence it is evident that a portion of the year 
 will suffice for the session of both the Senate and the House of 
 Representatives; we may suppose about a fourth for the latter 
 and a third, or perhaps half, for the former. The extra business 
 of treaties and appointments may give this extra occupation to the 
 Senate. From this circumstance we may infer that, until the 
 House of Representatives shall be increased greatly beyond its 
 present number, there will be a considerable saving of expense 
 from the difference between the constant session of the present 
 and the temporary session of the future Congress. 
 
 But there is another circumstance of great importance in the 
 view of economy. The business of the United States has hitherto 
 occupied the State legislatures, as well as Congress. The latter 
 has made requisitions which the former have had to provide for. 
 
 ' This sentence in brackets is omitted in the revised text. — Editor. 
 
58o NATIONAL AFFAIRS IN LEGISLATURES. [Ko. 84 
 
 Hence it has liappened that the sessions of the State legislatures 
 have been protracted greatly beyond what was necessary for the 
 execution of the mere local business of the States. More than half 
 their time has been frequently employed in matters which related 
 to the United States. Now the members who compose the legisla- 
 tures 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 busi- 
 ness of the United States themselves, without the intei-vention of the 
 State legislatures, who thenceforth will have only to attend to the 
 affairs of their particular States, and will not have to sit in any 
 proportion as long as they have heretofore done. This difference 
 in the time of the sessions of the State legislatures will be clear 
 gain, and will alone form an article of saving which may be 
 regarded as an equivalent for any additional objects of expense 
 that may be occasioned by the adoption of the new system. 
 
 The result from these observations is that the sources of addi- 
 tional 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. 
 
Hamilton] RESEMBLANCE TO N. Y. CONSTITUTION. 581 
 
 No. 85« CFirst collected edition, New York, 1788.) Hamilton. 
 
 CONCLUSION. 
 
 Manner in which subject has been discussed — An appeal to the reader to 
 weigh the matter carefully and act conscientiously — Confidence ofPublius 
 in the arguments which he has advanced — The conceded imperfections 
 no reason for delay — Extent of them exaggerated — The constitution not 
 radically defective — Rights and interests of the people safe under the 
 constitution — Not perfect, but a good plan — The state of the country for- 
 bids 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. 
 
 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 govern- 
 ment to your own State constitution," and " the additional security 
 which its adoption will afford to republican government, to liberty, 
 and to property." But these heads have been so fully anticipated 
 and exhausted in the progress of the work that it would now 
 scarcely be possible to do anything 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 con- 
 vention to the act which organizes the government of this State 
 holds not less with regard to many of the supposed defects than 
 to the real excellences of the former. Among the pretended 
 defects are the re-eligibility of the Executive, the want of a council, 
 the omission of a formal bill of rights, the omission of a provision 
 respecting the liberty of the press. These and several others 
 which have been noted in the course of our inquiries are as much 
 chargeable on the existing constitution of this State as on the one 
 proposed for the Union ; and a man must have slender pretensions 
 to consistency who can rail at the latter for imperfections which 
 he finds no difficulty in excusing in the former. Nor indeed can 
 there be a better proof of the insincerity and affectation of some of 
 the zealous adversaries of the plan of the convention among us, 
 who profess to be the devoted admirers of the government under 
 
5&i AbblTIOIfAL SECURITY. [No. 86 
 
 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 insur- 
 rections, and on the ambition of powerful individuals in single 
 States, who may acquire credit and influence enough, from leaders 
 and favorites, to become the despots of the people; in the 
 diminution of the opportunities to foreign intrigue, which the 
 dissolution of the Confederacy would invite and facilitate ; in 
 the prevention of extensive military establishments, which could 
 not fail to grow out of wars between the States in a disunited 
 situation ; in the express guaranty of a republican form of govern- 
 ment to each ; in the absolute and universal exclusion of titles of 
 nobility; and in the precautions against the repetition of those 
 practices on the part of the State governments which have under- 
 mined the foundations of property and credit, have planted mutual 
 distrust in the breasts of all classes of citizens, and have occasioned 
 an almost universal prostration of morals. 
 
 Thus have I, fellow-citizens, executed the task I had 
 assigned myself; with what success, your conduct must 
 determine. I trust at least you will admit that I have 
 not failed in the assurance I gave you respecting the 
 spirit with which my endeavors should be conducted. I 
 have addressed myself purely to your judgments, and 
 have studiously avoided those asperities which are too 
 apt to disgrace political disputants of all parties, and 
 which have been not a little provoked by the language 
 and conduct of the opponents of the Constitution. The 
 charge of a conspiracy against the liberties of the people, 
 which has been indiscriminately brought against the 
 advocates of the plan, has something in it too wanton 
 and too malignant not to excite the indignation of every 
 man who feels in his own bosom a refutation of the 
 calumny. The perpetual changes which have been rung 
 upon the wealthy, the well-born, and the great, have 
 been such as to inspire the disgust of all sensible men. 
 And the unwarrantable concealments and misrepresenta- 
 tions which have been in various ways practiced to keep 
 
Hamilton] DUTY OF CITIZEN. 583 
 
 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. 
 
 Let us now pause and ask ourselves whether, in the 
 course of these papers, the proposed Constitution has not 
 been satisfactorily vindicated from the aspersions thrown 
 upon it; and whether it has not been shown to be worthy 
 of the public approbation and necessary to the public 
 safety and prosperity. Every man is bound to answer 
 these questions to himself, according to the best of his 
 conscience and understanding, and to act agreeably to 
 the genuine and sober dictates of his judgment. This is 
 a duty from which nothing can give him a dispensation. 
 'Tis one that he is called upon, nay, constrained by all 
 the obligations that form the bands of society, to dis- 
 charge sincerely and honestly. No partial motive, no 
 particular interest, no pride of opinion, no temporary 
 passion or prejudice, will justify to himself, to his coun- 
 try, 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 remem- 
 ber 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 this 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 
 
S84 DEFECTS Ilf CONSTITUTION. [Ko. 86 
 
 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 ex- 
 tent of these concessions has been greatly exaggerated. 
 They have been stated as amounting to an admission that 
 the plan is radically defective, and that without material 
 alterations the rights and the interests of the community 
 cannot be safely confided to it. This, as far as I have 
 understood the meaning of those who make the conces- 
 sions, is an entire perversion of their sense. No advo- 
 cate 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 jeop- 
 ardy of successive experiments, in the chimerical pur- 
 suit of a perfect plan. I never expect to see a perfect 
 work from imperfect man. The result of the delibera- 
 tions of all collective bodies must necessarily be a com- 
 pound, as well of the errors and prejudices, as of the 
 good sense and wisdom of the individuals of whom they 
 ' are composed. The compacts which are to embrace 
 thirteen distinct States in a common bond of amity and 
 union must as necessarily be a compromise of as many 
 dissimilar interests and inclinations. How can perfection 
 spring from such materials? 
 
 The reasons assigned in an excellent little pamphlet 
 lately published in this city,*' are unanswerable to show 
 
 * Entitled " An Address to the People of the State of New York." — 
 
 PUBLIUS. 
 
 ' Written by John Jay and reprinted in Ford's " Pamphlets on the 
 Constitution." — Editor. 
 
Hamilton] a SECOND CONVENTION. 585 
 
 the utter improbability of assembling a new convention 
 under circumstances in any degree so favorable to a 
 happy issue as those in which the late convention met, 
 deliberated, and concluded. I will not repeat the argu- 
 ments there used, as I presume the production itself has 
 had an extensive circulation. It is certainly well worthy 
 the perusal of every friend to his country. There is, 
 however, one point of light in which the subject of 
 amendments still remains to be considered, and in which 
 it has not yet been exhibited to public view. I cannot 
 resolve to conclude without first taking a survey of it in 
 this aspect. 
 
 It appears to me susceptible of absolute demonstration 
 that it will be far more easy to obtain subsequent than 
 previous amendments to the Constitution. The moment 
 an alteration is made in the present plan, it becomes, to 
 the purpose of adoption, a new one, and must undergo a 
 new decision of each State. To its complete establish- 
 ment throughout the Union, it will therefore require the 
 concurrence of thirteen States. If, on the contrary, the 
 Constitution proposed should once be ratified by all 
 the States as it stands, alterations in it may at any time 
 be effected by nine States. Here, then, the chances are 
 as thirteen to nine * 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 par- 
 ticulars, 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 com- 
 binations 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 molding and arranging all the particulars 
 which are to compose the whole in such a manner as to 
 
 * It may rather be said TEN, for though two-thirds may set on foot the 
 measure, three-fourths must ratify. — Publius. 
 
S86 AMENDMENT AFTER ADOPTION. [No, 85 
 
 satisfy all the parties to the compact ; and hence, also, an 
 immense multiplication of difficulties and casualities 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 es- 
 tablished, would be a single proposition, and might be 
 brought forward singly. There would then be no neces- 
 sity for management or compromise, in relation to any 
 other point — no giving nor taking. The will of the 
 requisite number would at once bring the matter to a 
 decisive issue. And consequently, whenever nine, or 
 rather ten States, were united in the desire of a particu- 
 lar amendment, that amendment must infallibly take 
 place. There can, therefore, be no comparison between 
 the facility of effecting an amendment, and that of estab- 
 lishing in the first instance a complete Constitution. 
 
 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, I 
 acknowledge a thorough conviction that any amend- 
 ments which may, upon mature consideration, be thought 
 useful, will be applicable to the organization of the gov- 
 ernment, not to the mass of its powers; and on this 
 account alone, I think there is no weight in the observa- 
 tion just stated. I also think there is little weight in it 
 on another account. The intrinsic difficulty of govern- 
 ing thirteen States at any rate, independent of calcula- 
 tions 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 accommoda- 
 tion to the reasonable expectations of their constituents. 
 But there is yet a further consideration, which proves 
 beyond the possibility of a doubt that the observation is 
 futile. It is this, that the national rulers, whenever nine 
 States concur, will have no option upon the subject. By 
 the fifth article of the plan, the Congress will be obliged 
 
Hamilton] METHOD Of AMENDMENT. 5^7 
 
 "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 Consti- 
 tution, when ratified by the legislatures of three-fourths 
 of the States, or by conventions in three-fourths thereof." 
 The words of this article are peremptory. The Congress 
 " shall call a convention." Nothing in this particular is 
 left to the discretion of that body. And of consequence 
 all the declamation about the disinclination to a change 
 vanishes in air. Nor, however difficult it may be sup- 
 posed to unite two-thirds or three-fourths of the State 
 legislatures, in amendments which may affect local inter- 
 ests, can there be any room to apprehend any such diffi- 
 culty in a union on points which are merely relative to 
 the general liberty or security of the people. We may 
 safely rely on the disposition of the State legislatures to 
 erect barriers against the encroachments of the national 
 authority. 
 
 If the foregoing argument is a fallacy, certain it is that 
 I am myself deceived by it, for it is, in my conception, 
 one of those rare instances in which a political truth can 
 be brought to the test of a mathematical demonstration. 
 Those who see the matter in the same light with me, 
 however zealous they may be for amendments, must 
 agree in the propriety of a previous adoption as the most 
 direct road to their own object. 
 
 The zeal for attempts to amend, prior to the establish- 
 ment of the Constitution, must abate in every man who 
 is ready to accede to the truth of the following obser- 
 vations of a writer equally solid and ingenious: ''To 
 balance a large state or society (says he), whether mo- 
 narchical or republican, on general laws, is a work of so 
 great difficulty that no human genius, however compre- 
 hensive, is able, by the mere dint of reason and reflec- 
 tion, to effect it. The judgments of many must unite in 
 the work; experience must guide their labor; time must 
 bring it to perfection, and the feeling of inconveniences 
 must correct the mistakes which they inevitably fall into 
 
5 88 DANGER OF DELA V. Wo. 85 
 
 in their first trials and experiments."* These judicious 
 reflections contain a lesson of moderation to all the sin- 
 cere lovers of the Union, and ought to put them upon 
 their guard against hazarding anarchy, civil war, a per- 
 petual alienation of the States from each other, and per- 
 haps the military despotism of a victorious demagogue, in 
 the pursuit of what they are not likely to obtain but from 
 time and experience. It may be in me a defect of politi- 
 cal fortitude, but I acknowledge that I cannot entertain 
 an equal tranquillity with those who affect to treat the 
 dangers of a longer continuance in our present situation 
 as imaginary. A nation without a national government 
 is in my view an awful spectacle. The establishment 
 of a Constitution, in time of profound peace, by the vol- 
 untary consent of a whole people, is a prodigy, to the 
 completion of which I look forward with trembling anx- 
 iety. I can reconcile it to no rules of prudence to let go 
 the hold we now have, in so arduous an enterprise, upon 
 seven out of the thirteen States, and, after having passed 
 over so considerable a part of the ground, to recommence 
 the course. I dread the more the consequences of new 
 attempts because I know that powerful individuals, in 
 this and in other States, are enemies to a general national 
 government in every possible shape. Publius. 
 
 * Hume's " Essays,'' vol. i. p. 128 : " The Rise of Arts and Sciences." 
 — Publius. 
 
APPENDIX. 
 
APPENDIX. 
 
 ARTICLES OF CONFEDERATION, 1781 
 
 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." 
 
 ARTICLE IL 
 
 Each State retains its sovereignty, freedom, and independence, 
 and every power, jurisdiction, and right, which is not by this Con- 
 federation expressly delegated to the United States in Congress 
 assembled. 
 
 ARTICLE III. 
 
 The said States hereby severally enter into a firm league 
 of friendship with each other, for their common defense, 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 pretense whatever. 
 
 ARTICLE IV. 
 
 The better to secure and perpetuate mutual friendship and 
 intercourse among the people of the different States in this Union, 
 the free inhabitants of each of these States, paupers, vagabonds, 
 and fugitives from justice excepted, shall be 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 
 restrictions 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 State, on the property of 
 the United States, or either of them. 
 
592 ARTICLES OF CONFEDERATION. [1781 
 
 If any person guilty of or charged with treason, felony, or other 
 high misdemeanor 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 jurisdiction of his 
 offense. 
 
 Full faith and credit shall be given in each of these States to the 
 records, acts, and judicial proceedings of the courts and magis- 
 trates of every other State. 
 
 ARTICLE V. 
 
 For the more convenient management of the general interest 
 of the United States, delegates shall be annually appointed in 
 such manner as the 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 a 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 im- 
 peached or questioned 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 their going to and 
 from, and attendance on, Congress, except for treason, felony, or 
 breach of the peace. 
 
 ARTICLE VI. 
 
 No State, without the consent of the United States in Con- 
 gress assembled, shall send any embassy to, or receive any em- 
 bassy from, or enter into any conference, agreement, alliance, or 
 treaty with, any king, prince, or state ; nor shall any person hold- 
 ing 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 States 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. 
 
1781] ARTICLES OF CONFEDERATION. 593 
 
 No State shall lay any imposts or duties, which may interfere 
 with any stipulations in treaties entered into by the United States 
 in Congress assembled, with any king, prince, or state, in puisu- 
 ance 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 Congress assembled, for the defense of such 
 State or its trade ; nor shall any body of forces be kept up by any 
 State, in time of peace, except such number only as in the judg- 
 ment of the United States in Congress assembled shall be deemed 
 requisite to garrison the forts necessary for the defense of such 
 State ; but every State shall always keep up a well regulated and 
 disciplined militia, sufficiently armed and accoutered, 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 actu- 
 ally invaded by enemies, or shall have received certain advice of 
 a resolution being formed by some nation of 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 declara- 
 tion of war 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 regulations 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. 
 
 ARTICLE VII. 
 
 When land forces are raised by any State for the common 
 defense, 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. 
 
 ARTICLE VIII. 
 
 All charges of war and all other expenses that shall be incurred 
 for the common defense or general welfare, and allowed by the 
 United States in Congress 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 im- 
 provements thereon shall be estimated according to such mode as 
 
594 ARTICLES OF CONFEDERATION. [1T81 
 
 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. 
 
 ARTICLE 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, pro- 
 vided 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 subjected to, or from piohibiting 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 appro- 
 priated — of granting letters of marque and reprisal in time 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 judge of any of 
 the said courts. 
 
 The United States in Congress assembled shall also be the last 
 resort on appeal 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 following : — 
 Whenever the legislative or executive authority or lawful agent of 
 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 State in controversy, and a day 
 assigned for the appearance of the parties by their lawful agents, 
 who shall then be directed to appoint, by joint consent, commis- 
 sioners or judges to constitute a court for hearing and determining 
 the matter in question ; but if they cannot agree. Congress shall 
 name three persons 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 number 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 Congress, 
 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 determine 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 
 
1781] ARTICLES OF CONFEDERATION. S9S 
 
 judge sufficient, or, being present, shall refuse to strike, the Con- 
 gress shall proceed to nominate three persons out of each State, 
 and the Secretary of Congress 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 CongresSj 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 
 administered by one of the judges of the Supreme or Superior Court 
 of the State where" the cause shall be tried, " well and truly to hear 
 and determine the matter in question according to the best of his 
 judgment, without favor, affection, or hope of reward," provided 
 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 States, 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 settle- 
 ment 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 exclusive 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 — estabhshing or regulating post 
 offices from one State to another, throughout all the United States, 
 and exacting such postage on the papers passing through the 
 same as maybe requisite to defray the expenses of the said office — 
 appointing all officers of the land forces in the service of the United 
 States, excepting regimental officers — appointing all the officers of 
 the naval forces, and commissioning all officers whatever in the 
 service of the United States — making rules for the government and 
 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 de- 
 nominated " A Committee of the States," and to consist of one dele- 
 gate from each State; and to appoint such other committees and 
 civil officers as may be necessary for managing the general affairs 
 of the United States under their direction ; to appoint one of their 
 
596 ARTICLES OF CONFEDERATION. [1781 
 
 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 
 State 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 
 manner, at the expense of the 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 States in Congress assembled. 
 
 The United States in Congress assembled shall never engage in 
 a war, nor grant letters of marque and reprisal in time of peace, 
 nor enter into any treaties or alliances, nor coin money, nor regu- 
 late the value thereof, nor ascertain the sums and expenses neces- 
 sary for the defense 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. 
 
 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 be for a longer duration 
 than the space of six months, and shall publish the journal of their 
 proceedings monthly, except such parts thereof relating 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 
 
1781] ARTICLES OF CONFEDERATION. 597 
 
 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. 
 
 ARTICLE X. 
 
 The Committee of the States, or any nine of them, shall be 
 authorized 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 Congress of the 
 United States assembled is requisite. 
 
 ARTICLE XL 
 
 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. 
 
 ARTICLE XII. 
 
 All bills of credit emitted, moneys borrowed, and debts 
 contracted 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. 
 
 ARTICLE 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 alteration 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 respectively 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 confirm 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 plight and engage 
 the faith of our respective constituents that they shall abide by the 
 determinations of the United States in Congress assembled, on all 
 
598 ARTICLES OF CONFEDERATION. [1781 
 
 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 CONSTITUTION OF THE UNITED STATES OF 
 AMERICA.* 
 
 We the people of the United States, in Order to form a more _ 
 perfect Union, establish Justice, insure domestic Tranquility, pro- 
 vide for the common defence, promote 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. 
 
 Chisholm v. Georgia, 2 Dall. 419; McCulloch v. State of 
 Maiyland et al., 4 Wh. 316; Brown et als. v. Maryland, 12 
 Wh. 419 ; Barron ■v. The Mayor and City Council of Balti- 
 more, 7 Pet. 243 ; Lane County v. Oregon, 7 Wall. 71 ; 
 Texas v. White et al., 7 Wall. 700. 
 
 *In May, 1785, a committee of Congress made a report recommend- 
 ing an alteration in the articles of confederation, but no action was 
 taken on it, and it was left to the state legislatures to proceed in the 
 matter. In January, 1786, the legislature of Virginia passed a resolu- 
 tion providing for the appointment of five commissioners, who, or any 
 three of whom, should meet such commissioners as might be appointed in 
 the other states of the Union, at a time and place to be agreed upon, to 
 take into consideration the trade of the United States ; to consider how 
 far a uniform system in their commercial regulations might be necessary to 
 their common interest and their permanent harmony ; and to report to 
 the several states such an act, relative to this great object as, when 
 ratified by them. Would enable the United States in Congress efifectually 
 to provide for the same. The Virginia commissioners, after some corre- 
 spondence, fixed the first Monday in September as the time, and the city 
 of Annapolis as the place for the meeting, but only four other States 
 were represented, viz.: Delaware, New York, New Jersey, and Penn- 
 sylvania ; the commissioners appointed by Massachusetts, New Hamp- 
 shire, North Carolina, and Rhode Island failed to attend. Under the 
 circumstances of so partial a representation, the commissioners present 
 agreed upon a report (drawn by Mr. Hamilton, of New York), express- 
 ing their unanimous conviction that it might essentially tend to advance 
 the interests of the Union if the states by which they were respectively 
 delegated would concur, and use their endeavors to procure the concur- 
 rence of the other states, in the appointment of commissioners to meet 
 at Philadelphia on the second Monday of May following, to take into 
 consideration the situation of the United States ; to devise such further 
 provisions as should 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 afterward confirmed 
 by the legislatures of every state, would effectually provide for the same. 
 Congress, on the 21st of February, 1787, adopted a resolution in favor 
 
1787-8] CONSTITUTION. 599 
 
 ' ARTICLE I. 
 
 Section I. All legislative Powers herein granted shall be vested 
 in a Congress of the United States, which shall consist of a Senate 
 and House of Representatives. 
 
 Hayburn's Case (notes), 2 Dall. 409. 
 
 Sec. II. ' 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 Electors of the most numerous Branch of the State 
 LegislatTire. 
 
 In re Green, 134 U. S. 377. 
 
 '^ 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 
 
 of a convention, and the legislatures of those States (with the excep- 
 tion of Rhode Island) which had not already appointed delegates, promptly 
 did so. On the 25th of May, seven states having convened, George 
 Washington, of Virginia, was unanimously elected President of the con- 
 vention, and the consideration of the proposed constitution was begun. 
 On the 17th of September, 1787, the constitution as engrossed and agreed 
 upon was signed by all the members present, except Mr. Gerry, of Massa- 
 chusetts, and Messrs. Mason and Randolph, of Virginia. The President 
 of the convention transmitted it to Congress, with a resolution stating how 
 the proposed Federal Government should be put in operation, and an 
 explanatory letter. Congress, on the 28th of September, 1787, directed 
 the constitution so framed, with the resolutions and letter concerning 
 the same, to "be transmitted to the several Legislatures in order to be 
 submitted to a convention of delegates chosen in each State by the people 
 thereof, in conformity to the resolves of the convention." 
 
 On the 4th of March, 1789, the day which had been fixed for 
 starting the system of Government, the new constitution had been 
 ratified by the conventions chosen in each state to consider it, as 
 follows ; Delaware, December 7, 1787 ; Pennsylvania, December 12, 
 1787 ; New Jersey, December 18, 1787 ; Georgia, January 2, 1788 ; 
 Connecticut, January 9, 1788 ; Massachusetts, February 6, 1788 ; Mary- 
 land, April 28, 1788 ; South Carolina, May 23, 1788 ; New Hampsliire, 
 June 21, 1788 ; Virginia, June 26, 1788 ; and New York, July 26, 1788. 
 
 The President informed Congress, on the 28th of January, 1790, that 
 North Carolina had ratified the constitution November 21, 1789 ; and 
 he informed Congress on the 1st of June, 1790, that Rhode Island had 
 ratified the constitution May 29, 1789. Vermont, in convention, ratified 
 the constitution January 10, 1791, and was, by an act of Congress 
 approved February 18, 1791, "received and admitted into this Union as 
 a new and entire member of the United States." 
 
 * The clause included in brackets is amended by the XlVth amend- 
 ment, second section, p 
 
6oo CONSTITUTION. [1787-8 
 
 bound to Service for a 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 Con- 
 gress of the United States, and within every subsequent Term 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 Representative ; and until 
 such enumeration shall be made, the State of New Hampshire 
 shall be entitled to chuse three, Massachusetts eight, Rhode-Island 
 and Providence Plantations one, Connecticut five. New York six, 
 New Jersey four, Pennsylvania eight, Delaware one, Maryland six, 
 Virginia ten, North Carolina five, South Carolina five, and 
 Georgia three. 
 
 Veazie Bank v. Fenno, 8 Wall. 533 ; Scholey v. Rew, 23 
 Wall. 331 ; Pollock v. Farmers' Loan and Trust Co., 157 U. S. 
 429. 
 
 "• 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 chuse their Speaker and 
 other Officers ; and shall have the sole Power of Impeachment. 
 
 Sec. III. ' The Senate of the United States shall be com- 
 posed 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 Election, they shall be divided as equally as may be into 
 three Classes. The Seats of the Senators of the first Class shall 
 be vacated at the Expiration of the second Year, of the second 
 Class at the Expiration of the fourth Year, and of 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 Resigna- 
 tion, or otherwise, during the Recess of the Legislature of any 
 State, the Executive thereof may make temporary Appointments 
 until the next Meeting of the Legislature, which shall then fill such 
 Vacancies. 
 
 ^ 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 who shall not, when elected, be an Inhabitant 
 of that State for which he 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 chuse their other Officers, and also a President 
 pro 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 Affirma- 
 tion. 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 
 
1787-8] CONSTITUTION. 60 1 
 
 any Office of honor, Trust or Profit under the United States : but 
 the Party convicted shall nevertheless be liable and subject to In- 
 dictment, Trial, Judgment and Punishment, according to Lawf. 
 
 Sec. IV. ' The Times, Places and Manner of holding Elec- 
 tions for Senators and Representatives, shall be prescribed in 
 each State by the Legislature thereof ; but the Congress may at 
 any time by Law make or alter such Regulations, except as to the 
 Places of chusing Senators. 
 
 Ex parte Siebold, 100 U. S. 371; Ex parte Yarborough, 
 iioU. S. 651. 
 
 ' 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. 
 
 Sec. V. ' Each House shall be the Judge of the Elections, 
 Returns and Qualifications of its own Members, and a Majority of 
 each shall constitute a Quorum 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. 
 In re Loney, 134 U. S. 372. 
 
 ' Each House may determine the Rules of its Proceedings, punish 
 its Members for disorderly Behaviour, and, with the Concurrence 
 of two-thirds, expel a Member. 
 
 Anderson v. Dunn, 6 Wh. 204 ; Kilbourn v. Thompson, 
 103 U. S. 168 ; U. S. V. Bollin, 144 U. S. i. 
 
 3 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 the Yeas and Nays of the Mem- 
 bers 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, without 
 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. 
 
 Sec. VI. ' 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 privi- 
 leged from Arrest during their Attendance at the Session of 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. 
 
 Coxe V. M'Clenachan, 3 Dal. 478. 
 
 '^ 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 Emolu- 
 ments 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. 
 
 Sec. VII. 'All Bills for raising Revenue shall originate in 
 the House of Representatives ; but the- Senate may propose or 
 concur with Amendments as on other bills. 
 
6o2 CONSTITUTION. tl787-8 
 
 'Every Bill which shall have passed the House of Representa- 
 tives and the Senate, shall, before it becomes 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 other 
 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 Names 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 House of Representatives may be necessary (ex- 
 cept on a question of Adjournment) shall be presented to the 
 President of the United States ; and before the 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 Repre- 
 sentatives, according to the Rules and Limitations prescribed in 
 the Case of a Bill. 
 
 Sec. VIII. ' 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 uni- 
 form throughout the United States ; 
 
 Hylton V. United States, 3 Dall. 171 ; McCullochw. State of 
 Maryland, 4 Wh. 316 ; Loughborough v. Blake, 5 Wh. 317 ; 
 Osborn v. Bank of the United States, 9 Wh. 738 ; Weston et 
 al. V. City Council of Charleston, 2 Pet. 449; Dobbins v. The 
 Commissioners of Erie County, 16 Pet. 435 ; License Cases, 5 
 How. 504 ; Cooley v. Board of Wardens of Port of Philadel- 
 phia et al., 12 How. 299 ; McGuire v. The Commonwealth, 3 
 Wall. 387 ; Van Allen v. The Assessors, 3 Wall. 573 ; Bradley 
 V. The People, 4 Wall. 459. 
 
 License Tax Cases, 5 Wall 462 ; Pervear v. The Common- 
 wealth, 5 Wall. 475; Woodruff v. Parham, 8 Wall. 123; 
 Hinson v. Lott, 8 Wall 148; Veazie Bank v. Fenno, 8 
 Wall. 533; The Collector v. Day, ii Wall. 113; United 
 States V. Singer, 15 Wall, ill ; State Tax on Foreign-held 
 Bonds, 15 Wall. 300; United States v. Railroad Company, 
 17 Wall. 322; Railroad Company v. Peniston, 18 Wall. 5; 
 Scholey z/. Rew, 23 Wall. 331 ; Springer v. United States, 102 
 U.S. 586; Legal Tender Case, no U. S. 421 ; California 
 V. Central Pacific Railroad Co., 127 U. S. i ; Ratterman v. 
 Western Union Telegraph Co., 127 U.S. 411 ; Leloup v. Port 
 
1787-8] CONSTITUTION. 603 
 
 of Mobile, 127 U. S. 640; Field 7/. Clark, 143 U. S. 649; 
 Pollock V. Farmers Loan & Trust Co., 157 U. S. 429. 
 
 ' To borrow Money on the credit of the United States ; 
 
 McCulloch V. The State of Maryland, 4 Wh. 316 ; Weston 
 et al. V. The City Council of Charleston, 2 Pet. 449 ; .Bank of 
 Commerce v. New York City, 2 Black 620 ; Bank Tax Cases, 
 2 Wall. 200; The Banks v. The Mayor, 7 Wall. 16; Bank v. 
 Supervisors, 7 Wall. 26 ; Hepburn v. Griswold, 8 Wall. 603 ; 
 National Bank v. Commonwealth, 9 Wall. 353 ; Parker v. 
 Davis, 12 Wall. 457 ; Legal Tender Case, no U. S. 421. 
 
 ' To regulate Commerce with foreign Nations, and among the 
 Several States, and with the Indian Tribes ; 
 
 Gibbons v. Ogden, 9 Wh. i ; Brown et al. v. State of 
 Maryland, 12 Wh. 419 ; Wilson et iX.v. Black Bird Creek 
 Marsh Company, 2 Pet. 245 ; Worcester v. The State of 
 Georgia, 6 Pet. 515; City of New York v. Miln, 11 Pet. 102; 
 United States v. Coombs, 12 Pet. 72; Holmes v. Jennison et 
 al. 14 Pet. 540; License Cases, 5 How. 504; Passenger 
 Cases, 7 How. 283 ; Nathan v. Louisiana, 8 How. 73 ; Mager 
 V. Grima et al., 8 How. 490 ; United States v. Marigold, 9 
 How. 560 ; Cowley v. Board of Wardens of Port of Philadel- 
 phia, 12 How. 299; The Propeller Genesee Chief et al. v. 
 Fitzhugh et al., 12 How. 443; State of Pennsylvania ^'. The 
 Wheeling Bridge Co., 13 How. 518 ; Veazie et al. v. Moore, 
 14 How. 568 ; Smith v. State of Maryland, 18 How. 71 ; State 
 of Pennsylvania v. The Wheeling and Belmont Bridge Co., 
 et al., 18 How. 421 ; Sinnitt v, Davenport, 22 How. 227 ; 
 Foster et al. v. Davenport et al., 22 How. 244 ; Conway 
 et al. V. Taylor's Ex., I Black 603 ; United States v. Hol- 
 liday, 3 Wall. 407 ; Gihnan v, Philadelphia, 3 Wall. 713; The 
 Passaic Bridges, 3 Wall. 782 ; Steamship Company v. Port 
 Wardens, 6, Wall. 31 ; Crandall v. State of Nevada, 6 Wall. 
 35 ; White's Bank v. Smith, 7 Wall, 646 ; Waring v. The 
 Mayor, 8 Wall, no ; Paul v. Virginia, 8 Wall. 168; Thomson 
 V. Pacific Railroad, 9 Wall. 579 ; Downh^am et al. v. Alex- 
 andria Council, 10 Wall. 173; The Clinton Bridge, 10 Wall. 
 454 ; The Daniel Ball, 10 Wall. 557 ; Liverpool Insurance 
 Company w. Massachusetts, 10 Wall. 566; The Montello, 11 
 Wall. 4n ; Ex parte McNiel, 13 Wall. 236; State Freight 
 Tax, 15 Wall. 232 ; State Tax on Railway Gross Receipts, 15 
 Wall. 284; Osborn v. Mobile, 16 Wall. 479; Railroad Com- 
 pany V. Fuller, 17 Wall. 560; Bartemeyer v. Iowa, 18 Wall. 
 129; The Delaware Railroad Tax, 18 Wall. 206; Peete v. 
 Morgan, 19 Wall. 581 ; Railroad Company v. Richmond, 19 
 Wall. 584; B. & O. Railroad Company v. Maryland, 21 Wall. 
 456 ; The Lottawanna, 21 Wall. 558 ; Henderson et al. v. The 
 Mayor of the City of New York, 92 U. S. 259; Chy Lung v. 
 Freeman et al., 92 U. S. 275 ; South Carolina v. Georgia et al. 
 93 U. S. 4; Sherlock et al. v. Ailing, adm., 93 U. S. 99 ; United 
 States V. Forty-three gallons of Whiskey, etc., 93 U. S. 188 ; 
 Foster v. Master and Wardens of the Port of New Orleans, 
 
6o4 CONSTITUTION. [1787-8 
 
 94 U. S. 246; Railroad Company v. Husen, 95 U. S. 465 ; 
 Pensacola Tel. Co. v. W. U. Tel. Co,, 96 U. S. i ; Beer Co. v. 
 Massachusetts, 97 U. S. 25 ; Cook v. Pennsylvania, 97 U. S. 
 566 ; Packet Co. v. St. Louis, 100 U. S. 423 ; Wilson v. 
 McNamee, 102 U. S. 572; Moran v. New Orleans, 112 U. S. 
 69; Head Money Cases, 112 U. S. 580; Cooper Mfg. Co. v. 
 Ferguson, 113 U. S. 727 : Gloucester Ferry Co. v. Pennsyl- 
 vania, 114 U.S. 196; Brown v. Houston, 114 U. S. 622; 
 Walling V. Michigan, 1 16 U. S. 446 ; Pickard v. Pullman 
 Southern Car Co., 117 U. S. 34; Tennessee ■v. Pullman 
 Southern Car Co., 117 U. S. 51 ; Spraigue v. Thompson, 118 
 U. S. 90 ; Morgan v. Louisiana, 118 U. S. 455 ; Wabash, St. 
 Louis, and Pacific Ry. u. Illinois, 118 U. S. 557; Huse v. 
 Glover, 119 U. S. 543; Robbins v. Shelby Co. Taxing Dist., 
 120 U. S. 489; Corson v. Maryland, 120 U. S. 502 ; Barron v. 
 Burnside, 121 U. S. 186; Fargo v. Michigan, 121 U. S. 230; 
 Ouachita Packet Co. v. Aiken, 121 U. S. 444; Phila. and 
 Southern S. S. Co. v. Penna., 122 U. S. 326; W. U. Tel. Co. 
 V. Pendleton, 122 U. S. 347; Sands v. Manistee River Imp. 
 Co., 123 U. S. 288; Smith v. Alabama, 124 U. S. 465 ; Wil- 
 lamette Iron Bridge Co. v. Hatch, 125 U. S. i ; Pembina 
 Mine Co. v. Penna., 125 U. S. 181 ; Bowman v. Chicago 
 Northwestern Rwy. Co., 125 U. S. 465 ; Western Union Tel. 
 Co. V. Mass., 125 U. S. 530; California z/. Central Pacific 
 R. R. Co., 127 U. S. I ; Leloup v. Port of Mobile, 127 U. S. 
 640; Kidd V. Pearson, 128 U. S. i ; Asher v. Texas, 128 U. 
 S. 129; Stoutenberg v. Hennick, 129 U. S. 141; Western 
 Union Tel. Co. v. Alabama, 132 U. S. 472; Fritts v. Palmer, 
 
 132 U. S. 282; Louisville, N. O., etc.. Railway z/. Mississippi, 
 
 133 U. S. 587; Leisy v. Hardin, 135 U. S. 100; Lyng v. 
 Michigan, 135 U. S. 161 ; Cherokee Nation v. Kansas Rail- 
 way Co., 135 U. S. 641 ; McCall v. California, 136 U. S. 104; 
 Norfolk and Western R. Rd. v. Pennsylvania, 136 U. S. 114; 
 Minnesota v. Barber, 136 U. S. 313 ; Texas & Pacific Ry. Co. 
 V. Southern Pacific Co., 137 U. S. 48 ; Brimmer v. Rebman, 
 138 U. S. 78; Manchester v. Mass., 139 U. S. 240; In re 
 Rahrer, 140 U. S. 545 ; Pullman Palace Car Co. v. Penna., 
 141 U. S. 18 ; Pullman Palace Car Co. v. Hayward, 141 U. S. 
 36 ; Mass. v. Western Union Tel. Co., 141 U. S. 40 ; Crutcher 
 V. Kentucky, 141 U. S. 47 ; Henderson Bridge Qo.v. Hender- 
 son, 141 U. S. 679; In re Garnett, 141 U. S. i ; Maine v. 
 Grand Trunk Ry. Co., 142 U. S. 217 ; Mishimura Ekin v. U. 
 S., 142 U. S. 651 ; Pacific Ex. Co. v. Seibert, 142 U. S. 339; 
 Horn Silver Mining Co. v. New York, 143 U. S. 305 ; Chic. 
 & Grand Trunk Ry. Co. v. Wellman, 143 U. S. 339 ; Budd 
 V. N. Y., 143 U. S. 517 ; Ficklen v. Shelby Co. Taxing Dist., 
 145 U. S. I ; Lehigh Valley R. Rd. v. Pennsylvania. 145 U. 
 S. 192 ; Interstate Commerce Comm'n v. B. & O. R. Rd. 145 
 U. S. 264 ; Brennan v. Titusville, 1 53 U. S. 289 ; Brass v, 
 Stoeser, 153 U. S. 391 ; Ashley v. Ryan, 153 U. S. 436 ; Lux- 
 ton V. N. River Bridge Co., 153 U. S. 529; Erie R. Rd. v. 
 
1787-8] CONSTITUTION. 605 
 
 Penna., 153 U. S. 628; Postal Tel. Cable Co. v. Charleston, 
 153 U. S. 692; Covington & Cinc'ti Bridge Co. v. Ky., 154 
 U. S. 204; Plumley v. Mass., 155 U. S. 461 ; Texas and 
 Pacific Rwy. Co. v. Interstate Transfer Co., 155 U. S. 585; 
 Hooper v. Calif., 155 U. S. 648; Postal Tel. Cable Co., 7/. 
 Adams, 155 U. S. 688 ; U. S. v. E. C. Kniglit & Co., 156 U. 
 S. I ; Ernest v. Missouri, 156 U. S. 296; N. Y., L. E. & 
 West'n V. Penna., 158 U. S. 431 ; Pittsburgh & So. Coal Co. 
 V. Bates, 156 U. S. 577; Pittsburgh & So. Coal Co. v. La., 
 156 U. S. 590; Gulf, Colo. & S. F. Rwy. Co. v. Hefley, 158 
 U. S. 98 ; In re Debs, 158 U. S. 564. 
 
 * Tb establish an uniform Rule of Naturalization, ■ and uniform 
 Laws on the subject of Bankruptcies throughout the United 
 States ; "" 
 
 ^ Sturgis V. Crowninshield, 4 Wh. 122; ^McMillan v. Mc- 
 Neil, 4 Wh. 209; 'Farmers and Mechanics' Bank, Pennsyl- 
 vania, V. Smith, 6 Wh. 131; ' Ogden v. Saunders, 12 Wh. 
 213 ; ''■ Boyle v. Zacharie and Turner, 6 Pet. 348; ' Gassies v. 
 Ballon, 6 Pet. 761 ; ' Beers et al. v. Haughton, 9 Pet. 329 ; 
 " Suydam et al. v. Broadnax, 14 Pet. 67 ; ' Cook v. Moffat et 
 al., 5 How. 295 ; ' Dred Scott v. Sanford, 19 How. 393. 
 
 * To coin Money, regulate the Value thereof, and of foreign Coin, 
 and fix the Standard of Weights and Measures ; 
 
 Briscoe v. The Bank of the Commonwealth of Kentucky, 
 1 1 Pet. 257 ; Fox v. The State of Ohio, 5 How. 410 ; United 
 States V. Marigold, 9 How. 560. 
 'To provide for the Punishment of counterfeiting the Securities 
 and current Coin of the United States ; 
 
 Fox V. The State of Ohio, 5 How. 410 ; United States v. 
 Marigold, 9 How. 560. 
 ' To establish Post Offices and post Roads ; 
 
 State of Pennsylvania w. "The Wheeling and Belmont 
 Bridge Company, 18 How. 421 ; Homer v. U. S., 143 U. S. 
 207; In re Rapier, 143 U. S. no; In re Debs, 158 U. S. 
 564. 
 ' To promote the Progress of Science and useful Arts, by secur- 
 ing for limited Times to Authors and Inventors the exclusive 
 Right to their respective Writings and Discoveries ; 
 
 Grant et al. v. Raymond, 6 Pet. 218; Wheaton et al. v. 
 Peters et al., 8 Pet. 591. 
 
 * To constitute Tribunals inferior to the supreme Court ; 
 
 "• To define and punish Piracies and Felonies committed on the 
 high Seas, and Offenses against the Law of Nations ; 
 
 United States tj. Palmer, 3 Wh. 610 ; United States v. 
 Wiltberger, 5 Wh. 76 ; United States v. Smith, 5 Wh. 153 ; 
 United States v. Pirates, 5 Wh. 184; United States W.Ari- 
 zona, 120 U. S. 479. 
 " To declare War, grant Letters of Marque and Reprisal, and 
 make Rules concerning Captures on Land and Water ; 
 
 Brown z/. United States, 8 Cr. no; American Insurance 
 Company et al. v. Canter (356 bales cotton), i Pet. 5n ; 
 
6o6 CONSTITUTION. [1787-8 
 
 Mrs. Alexander's Cotton, 2 Wall. 404 ; Miller v. United 
 States, II Wall. 268; Tyler v. Defrees, 11 Wall. 331; 
 Stewart v. Kahn, 11 Wall. 493; Hamilton u. Dillin, 21 
 Wall. 73 ; Lamar, ex., v. Browne et al., 92 U. S. 187. 
 '^To raise and support Armies, but no Appropriation of Money 
 to that Use shall be for a longer Term than two Years ; 
 Crandall v. State of Nevada, 6 Wall. 32. 
 '^ To provide and maintain a Navy ; 
 
 United States v. Bevans, 3 Wh. 336 ; Dynes u. Hoover, 20 
 How. 65. 
 "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, suppress Insurrections and repel Invasions ; 
 
 Houston V. Moore, S Wh. i ; Martin v. Mqtt, 12 Wh. 19; 
 
 Luther v. Borden, 7 How. i ; Crandall v. State of Nevada, 
 
 6 Wall. 35 ; Texas v. While, 7 Wall. 700. 
 
 "To provide for organizing, arming, and disciplining, the Militia, 
 
 and for governing such Part of them as may be employed in the 
 
 Service of the United States, reserving to the States respectively, 
 
 the Appointment of the Officers, and the Authority of training the 
 
 Militia according to the discipline prescribed by Congress ; 
 
 Houston V. Moore, 5 Wh. i ; Martin v. Mott, 12 Wh. 19 ; 
 Luther e/. Borden, 7 How. i. 
 "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, be- 
 come the Seat of the Government of the United States, and to ex- 
 ercise 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 
 
 Hepburn et al. v. EUzey, 2 Cr. 444 ; Loughborough v. 
 Blake, 5 Wh. 317; Cohens v. Virginia, 6 Wh. 264; Ameri- 
 can Insurance Company v. Canter (356 bales cotton), i Pet. 
 511 ; Kendall, Postmaster General, z/. The United States, 12 
 Pet. 524 ; United States v. Dewitt, 9 Wall. 41 ; Dunphy v. 
 Kleinsmith et al., 11 Wall. 610; Willard v. Presbury, 14 
 Wall. 676; Phillips v. Payne, 92 U. S. 130; United States 
 V. Fox, 94 U. S. 315 ; National Bank w. Yankton County, loi 
 U. S. 129; Ft. Leavenworth R. Rd. Co. v. Howe, 114 U. S. 
 525; Benson v. U. S., 146 U. S. 325 : Shoemaker v. U. S., 
 147 U. S. 282. 
 '*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. 
 
 McCulloch V. The State of Maryland, 4 Wh. 316 ; Way- 
 man 7/. Southard, 10 Wh. I ; Bank of United States v. Hal- 
 stead, 10 Wh. 51 ; Hepburn v. Griswold, 8 Wall. 603 ; 
 National Bank v. Commonwealth, 9 Wall. 353 ; Thomson v. 
 
ITST-S] CONSTITUTION. 607 . 
 
 Pacific Railroad, 9 Wall. 579; Parker v. Davis, 12 Wall. 
 457; Railroad Company 2/. Johnson, 15 Wall. 195; Railroad 
 Company v. Peniston, 18 Wall. 5 ; Legal Tender Case, no 
 U. S. 421 ; In re Coy, 127 U. S. 731 ; Stoutenburgh v. Hen- 
 nick, 129 U. S. 141 ; Chinese Ex. Case, 130 U. S. 581 ; In re 
 Neagle, 135 U. S. i ; St. Paul, Minneapolis & Manitoba Ry. 
 Co. V. Phelps, 137 U. S. 528 ; Homer v. U. S., 143 U. S. 
 570; Logan V. U. S., 144 U. S. 263 ; Fong-Yue Ting v. U. S., 
 149 U. S. 698; Lees v. U. S., 150 U. S. 476; Luxton v. 
 North River Bridge Co., 153 U. S. 529; Erie R. Rd. v. 
 Penna., 153 U. S. 628 ; Postal Tel. Cable Co., v. Charleston, 
 153 U. S. 692 ; Clune v. U. S., 159 U. S. 590. 
 Sec. IX. ' The Migration or Importation of such 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 im- 
 posed on such Importation, net exceeding ten dollars for each 
 Person. 
 
 Dred Scott v. Sanford, 19 How. 393. 
 '^ 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. 
 
 United States v. Hamilton, 3 Dall. 17 ; Hepburn et al. v. 
 EUzey, 2 Cr. 445 ; Ex parte BoUman and Svvartwout, 4 Cr. 
 75 ; Ex parte Kearney, 7 Wh. 38; Ex parte Tobias Watkins, 
 
 3 Pet. 192 ; Ex parte Milburn, 9 Pet. 704 ; Holmes v. Jen- 
 nison et al., 14 Pet. 540 ; Ex parte Dorr, 3 How. 103 ; 
 Luther v. Borden, 7 How. i ; Ableman v. Booth and United 
 States V. Booth, 21 How. 506; Ex parte Vallandigham, i 
 Wall. 243 ; Ex parte Mulligan, 4 Wall. 2 ; Ex parte Mc- 
 Cardle, 7 Wall. 506 ; Ex parte Yerger. 8 Wall. 85 ; Tarble's 
 Case, 13 Wall. 397 ; Ex parte Lange, 18 Wall. 16 ; Ex parte 
 Parks, 93 U. S. 18 ; Ex parte Karstendick, 93 U. S. 396 ; Ex 
 parte Virginia, 100 U. S. 339; In re Neagle, 135 U. S. i ; In 
 re Duncan, 139 U. S. 449. 
 
 3 No Bill of Attainder or ex post facto Law shall be passed. 
 
 Fletcher v. Peck, 6 Cr. 87 ; Odgen v. Saunders, 12 Wh. 
 213 ; Watson et al. v. Mercer, 8 Pet. 88 ; Carpenter et al. v. 
 Commonwealth of Pennsylvania, 17 How. 456 ; Locke v. New 
 Orleans, 4 Wall. 172 ; Cummings v. The State of Missouri, 
 
 4 Wall. 277 ; Ex parte Garland, 4 Wall. 333 ; Drehman v. 
 Stifle, 8 Wall. 595 ; Klinger v. State of Missouri, 13 Wall. 
 257; Pierce v. Carskadon, 16 Wall. 234; Holden v. Min- 
 nesota, 137 U. S. 483 ; Cook V. U. S., 138 U. S. 157. 
 
 *No Capitation, or other direct. Tax shall be laid, unless in Pro- 
 portion to the Census or Enumeration hereinbefore directed to be 
 taken. 
 
 License Tax Cases, 5 Wall. 462; Springer v. United States, 
 102 U. S. 586; Pollock V. Farmers' Loan & Trust Co., 157 
 U. S. 429. 
 ' No Tax or Duty shall be laid on Articles exported from any State. 
 
6o8 CONSl^ITUTION. [1787-8 
 
 Cooley V. Board of Wardens of Port of Philadelphia, 12 
 
 How. 299 ; Page v. Burgess, collector, 92 U. S. 372 ; Tui- 
 
 pin t/. Burgess, 117 U. S. 504; Pittsburgh & Southern Coal 
 
 Co. V. Bates, 156 U. S. 577. 
 
 ' No Preference 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. 
 
 Cooley 2/. Board of Wardens of Port of Philadephia et al., 
 12 How. 299; State of Pennsylvania v. Wheeling and Bel- 
 mont Bridge Company et al., 18 How. 421 ; Munn v. Illinois, 
 94 U. S. 113; Packet Co. v. St. Louis, 100 U. S. 413 ; 
 Packet Co. v. Catlettsburg, 105 U. S. 559; Morgan S. S. Co. 
 V. La. Board of Health, 118 U. S. 455. 
 ^ No Money shall be drawn from the Treasury, but in Conse- 
 quence of Appropriations 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 Ofifice 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. 
 
 Sec. X. ' 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 Con- 
 tracts, ^ or grant any Title of Nobility. 
 
 « Calder and Wife v. Bull and Wife, 3 Dall. 386 ; ' Fletcher 
 V. Peck, 6 Cr. 87; * State of New Jersey v. Wilson, 7 Cr. 
 164; ^Sturgis V. Crowninshield, 4 Wh. 122; ^ McMillan v. 
 McNeil, 4Wh. 209 ; ^Dartmouth College 7/. Woodward, 4 Wh. 
 518 ; 'Owingsz/. Speed, 5 Wh. 420; 'Farmers' and Mechanics' 
 Bank v. Smith, 6 Wh. 131 ; ' Greeii et al. v. Biddle, 8 Wh. I ; 
 'Ogden V. Saunders, 12 Wh. 213; 'Mason u. Haile, 12 Wh. 
 370 ; ' Satterlee v. Matthewson, 2 Pet. 380; ^Hart v. Lam- 
 phire, 3 Pet. 280 ; ' Craig et al. v. State of Missouri, 4 Pet. 
 410; 'Providence Bank v. Billings and Pitman, 4 Pet. 514; 
 ' Byrne v. State of Missouri, 8 Pet. 40 ; ^ Watson v. Mercer, 
 8 Pet. 88; ' Mumma v. Potomac Company, 8 Pet. 281; 
 ' Beers v. Haughton, 9 Pet. 329 ; ' Briscoe et al. v. The Bank of 
 the Commonwealth of Kentucky, 11 Pet. 257 ; 'The Proprie- 
 tors of Charles River Bridge v. The Proprietors of Warren 
 Bridge, 11 Pet. 420; ' Armstrong 2/. The Treasurer of Athens 
 Company, 16 Pet. 281 ; ' Bronson v. Kinzie et al., i How. 
 311; ' McCracken v. Hayward, 2 How. 608; 'Gordon v. 
 Appeal Tax Court, 3 How. 133; 'State of Maryland v. 
 Baltimore and Ohio R. R. Co., 3 How. 534 ; ' Neil, Moore 
 & Co. V. State of Ohio, 3 How. 720 ; ' Cook v. Mof- 
 fatt, s How. 29s ; 'Planters' Bank v. Sharp et al., 6 How. 
 
11'87-8] .CONSTITUTION. 609 
 
 301 ; 'West River Bridge Company v. Dix et al., 6 How. 
 507 ; ^ Crawford et al., v. Branch Bank of Mobile, 7 How. 
 279; 'Woodruff V. Trapnall, 10 How. 190; 'Paup et al. v. 
 Drew, 10 How. 218; ^''Baltimore and Susquehanna R. R. 
 Co. V. Nesbitt et al., 10 How. 395 ; ' Butler et al. v. Pennsyl- 
 vania, 10 How. 402 ; ' Darrington et al. v. The Bank of 
 Alabama, 13 How. 12; 'Richmond, etc., R. R. Co., ^'. The 
 Louise R. R. Co., 13 How. 71; 'Trustees for Vincennes 
 University v. State of Indiana, 14 How. 268 ; ' Curran v. 
 State of Arkansas et al., 15 How. 304 : 'State Bank of Ohio 
 V. Knoop, 16 How. 369 ; ^ Carpenter et al. v. Commonwealth 
 of Pennsylvania, 17 How. 456; ' Dodge v. Woolsey, 18 How. 
 331 ; ' Beers v. State of Arkansas, 20 How. 527 ; ' Aspinwall 
 et al. V. Commissioners of County of Daviess, 22 How. 364 ; 
 ' Rector of Christ Church, Philadelphia, v. County of Phila- 
 delphia, 24 How. 300 ; ' Howard v. Bugbee, 24 How. 461 ; 
 'Jefferson Branch Bank w. Skelley, i Black 436; 'Franklin 
 Branch Bank v. State of Ohio, i Black 474 ; ' Trustees of the 
 Wabash and Erie Canal Company v. Beers, 2 Black 448 ; 
 'Gilmant/. City of Sheboygan, 2 Black 510; 'Bridge Pro- 
 prietors V. Hoboken Company, i Wall. 116; ' Hawthorne, ■z/. 
 Calef, 2 Wall. 10; 'The Binghamton Bridge, 3 Wall. 51; 
 'The Turnpike Company v. The State, 3 Wall. 210; 'Locke 
 V. City of New Orleans, 4 Wall. 172 ; ' Railroad Company v. 
 Rock, 4 Wall. 177 ; .' Cummings v. State of Missouri, 4 Wall. 
 277 ; 'Ex parte Garland, 4 Wall. 333 ; ' Von Hoffman v. City 
 of Quincy, 4 Wall. 535 ; ' Mulligan v. Corbins, 7 Wall. 487 ; 
 'Furman v. Nichol, 8 Wall. 44 ; ' Home of the Friendless v. 
 Rouse, 8 Wall. 430 ; ' The Washington University v. Rouse, 
 8 Wall. 439 ; ' Butz v. City of Muscatine, 8 Wall. 575 ; ' Dre- 
 men v. Stifle, 8 Wall. 595 ; ' Hepburn v. Griswold, 8 Wall. 
 603 ; ' Gut V. The State, 9 Wall. 35 ; ' Railroad Company v. 
 McClure, 10 Wall. 511; 'Parker v. Davis, 12 Wall. 457; 
 'Curtis V. Whiting, 13 Wall. 68; 'Pennsylvania College 
 Cases, 13 Wall. 190; 'Wilmington R. R. v. Reid, sheriff, 13 
 Wall. 264; 'Salt Company v. East Saginaw, 13 Wall. 373; 
 'White V. Hart, 13 Wall. 646; 'Osborn v. Nicholson et al., 
 13 Wall. 654; 'Railroad Company z/. Johnson, 15 Wall. 195; 
 'Case of the State Tax on Foreign-held Bonds, 15 Wall. 300; 
 'Tomlinson ^z. Jessup, 15 Wall. 454; ' Tomlinson v. Branch, 
 1 5 Wall. 460 ; ' Miller v. The State, 1 5 Wall. 478 ; ' Holyoke 
 Company v. Lyman, 15 Wall. 500 ; ' Gunn v. Barry, 15 Wall. 
 610 ; ' Humphrey v. Pegues, 16 Wall. 244 ; ' Walker v. 
 Whitehead, 16 Wall. 314; 'Sohn^/. Waterson, 17 Wall. 596; 
 'Barings v. Dabney, 19 Wall, i ; 'Head v. The University, 
 19 Wall. 526 ; ' Pacific R. R. Co. v. Maguire, 20 Wall. 36 ; 
 'Garrison v. The City of New York, 21 Wall. 196; ' Ochil- 
 tree z*. The Railroad Company, 21 Wall. 249; 'Wilmington, 
 &c.. Railroad v. King, ex., 91 U. S. 3 ; 'County of Moultrie v. 
 Rockingham Ten Cent Savings Bank, 92 U. S. 631 ; 'Home 
 Insurance Company v. City Council of Augusta, 93 U. S. 116; 
 
6 10 Constitution. [itst-* 
 
 ' West Wisconsin R. R. Co. v. Supervisors, 93 U. S. 595 ; 
 Murray v. Charleston, 96 U. S. 432 ; Edwards v. Kearzey, 96 
 U. S. 595; Keith v. Clark, 97 U. S. 454; Railroad Co. v. 
 Georgia, 98 U. S. 359; Railroad Co. v. Tennessee, loi U. S. 
 337 ; Wright v. Nagle, loi U. S. 791 ; Stone v. Mississippi, 
 loi U. S. 814; Railroad Co. v. Alabama, loi U. S. 832; 
 Louisiana v. New Orleans, loi U. S. 203 ; Hall v. Wisconsin, 
 103 U. S. 5 ; Pennyman's Case, 103 U. S. 714 ; Guaranty Co. 
 V. Board of Liquidation, 105 U. S. 622 ; Greenwood v. 
 Freight Co., 105 U. S. 13 ; Kring v. Missouri, 107 U. S. 221 ; 
 Louisiana 7. New Orleans, 109 U. S. 285 ; Gilfillan v. Union 
 Canal Co., 109 U. S. 401 ; Nelson v. St. Martin's Parish, 1 1 1 
 U. S. 716; Chic. Life Ins. Co. v. Needles, 113 U.S. 574; 
 Virginia Coupon Cases, 114 U. S. 270; Amy v. Shelby Co., 
 114 U. S. 387 ; EfJinger v. Kenney, 115 U. S. 566 ; N. Orleans 
 Gas Co. V. La. Light Co., 115 U. S. 650; N. Orleans Water 
 Works V. Rivers, 115 U. S. 674; Louisville Gas Co. v. 
 Citizens' Gas Co., 115 U. S. 683; Fisk v. Jefferson Police 
 Jury, 116 U. S. i^i ; Stone v. Farmers' Loan and Trust Co., 
 1 16 U. S. 307; Stone v. 111. Central R. R. Co., 116 U. S. 
 ,347 ; Royall v. Virginia, 116 U. S. 572 ; St. Tammany Water 
 Works V. N. Orleans Water Works, 120 U. S. 64 ; Church v. 
 Kelsey, 121 U. S. 282 ; Lehigh Water Co. v. Easton, 121 U. S. 
 388; Seibert v. Lewis, 122 U. S. 284; N. Orleans Water 
 Works V. La. Sugar Ref. Co., 125 U. S. 18 ; Maynard v. Hill, 
 125 U. S. 140; Jaehne v. N. Y., 128 U. S. 189; Denny v. 
 Bennett, 128 U. S. 489; Chinese Ex. Case, 130 U. S. 588; 
 Williamson v. N. J., 130 U. S. 189 ; Hunt v. Hunt, 131 U. S. 
 clxv ; Freeland v. Williams, 131 U. S. 405; Campbell v. 
 Wade, 134 U. S. 34; Penna. R. Rd. Co. v. Miller, 134 U. S. 
 75 ; Hans v. Louisiana, 134 U. S. i ; North Carolina v. 
 Temple, 134 U. S. 22; Crenshaw v. U. S., 134 U. S. 99; 
 Louisiana ex rel. The N. Y. Guaranty and Indemnity Co. v. 
 Steele, 134 U. S. 280; Minneapolis Easton Rwy. Co. v. Min- 
 nesota, 134 U. S. 467 ; Hill V. Merchants' Ins. Co., 134 U. S. 
 515; Medley, petitioner, 134 U. S. 160; Cherokee Nation z/. 
 Kansas Ry. Co., 641 ; Virginia Coupon Cases, 135 U. S. 662 ; 
 Mormon Church v. U. S., 136 U. S. i ; Wheeler v. Jackson, 
 137 U. S. 245 ; Holden v. Minnesota, 137 U. S. 483 ; Sioux 
 City Street Railway Co. v. Sioux City, 138 U. S. 98; Cook v. 
 U. S., 138 U. S. 157; Belmont Bridge Co. v. Wheeling 
 Bridge Co., 138 U. S. 287; Cook County z/. Calumet and 
 Chicago Canal Co., 138 U. S. 635; Pennoyer v. McCon- 
 naughy, 139 U. S. I ; Scotland County Court v. Hill, 139 U. 
 S. 41 ; Scott V. Neely, 139 U. S. 106; Essex Public Road 
 Board v. Shinkle, 140 U. S. 334 ; Stein v. Bienville Water 
 Supply Co., 141 U. S. 67 ; Henderson Bridge Co. v. Hender- 
 son, 141 U. S. 679 ; New Orleans v. N. O. Water W'ks, 142 
 U.S. 79; Pacific Ex. Co. v. Seibert, 142 U.S. 339; N. O. 
 City & Lake R. Rd. Ca.v. New Orleans, 143 U. S. 193 ; Win- 
 ona & St. Peter R. Rd. Co.t/. Plainview, 143 U. S. 371; Louis- 
 
mi'i] coNSTiTuriotf. 6ii 
 
 ville Water Co. v. Clark, 143 U. S. i; N. Y. v. Squire, 145 U. S. 
 
 17s ; Brown v. Smart, 145 U. S. 454 ; Baker's Exrs. v. Kil- 
 
 gore, 145 U. S. 487 ; Morley v. Lake Shore & Mich. Southern 
 
 Ry. Co., 146 U. S. 162 ; Hamilton, Ga. Ltd. Coke Co. v. 
 
 Hamilton, 146 U. S. 258 ; Wilmington & Weldon R. Rd. Co. 
 
 V. Alsbrook, 146 U. S. 279 ; Butler v. Gorley, 146 U. S. 303 ; 
 
 Ills. Cent. R. R. v. Ills., 146 U. S. 387; Morley v. Lake Shore & 
 
 Mich. So. Rwy. Co., 146 U. S. 162 ; Hamilton Gas L't Co. v. 
 
 Hamilton City, 146 U. S. 258 ; Wil. & Wei. R. R. Co. v. 
 
 Alsbrook, 146 U. S. 279 ; 111. Cent. R. Rd. Co. v. Illinois, 
 
 146 U. S. 387 ; Bier v. McGehee, 148 U. S. 137; Schurz v. 
 
 Cook, 148 U. S. 397 ; Eustisz/. BoUes, 150 U. S. 361 ; Duncan 
 
 V. Missouri, 152 U. S. 377 ; Israel v. Arthur, 152 U. S. 355 ; 
 
 New Orleans v. Benjamin, 153 U. S. 411 ; Eagle Ins. Co. v. 
 
 Ohio, 153 U. S. 446 ; Erie R. Rd. v. Penna., 153 U. S. 628 ; 
 
 Mobile & Ohio R. Rd. v. Tenn. 153 U. S. 486 ; Pittsburgh & 
 
 So. Coal Co. V. La., 156 U. S. 590; U. S. ex rel. Siegel v. 
 
 Thoman, 156 U. S. 353 ; City and Lake R. Rd. v. N. O., 157 
 
 U. S. 219; Central Land Co. v. Laidley, 159 U. S. 103; 
 
 Winona & St. Peter Land Co. v. Minn., 159 U. S. 528. 
 
 ^ No State shall, without the Consent of the Congress, lay any 
 
 Imposts or Duties on Imports or Exports, except what may be 
 
 absolutely necessary for executing its inspection Laws : and the 
 
 net Produce of all Duties and Imposts, laid by any State on Imports 
 
 or Exports, shall be for the Use of the Treasury of the United 
 
 States ; and all such Laws shall be subject to the Revision and 
 
 Controul of the Congress. 
 
 McCuUoch V. State of Maryland, 4 Wh. 316 ; Gibbons v. 
 Ogden, 9 Wh. i ; Brown v. The State of Maryland, 12 Wh. 
 419 ; Mager v. Grima et al., 8 How. 490; Cooley v. Board of 
 Wardens of Port of Philadelphia et al., 12 How. 299 ; Almy v. 
 State of California, 24 How. 169 ; License Tax Cases, 5 Wall. 
 462 ; Crandall v. State of Nevada, 6 Wall. 35 ; Waring v. The 
 Mayor, 8 Wall, no; Woodruff v. Perham, 8 Wall. 123; 
 Hinson v. Lott, 8 Wall. 148 ; State Tonnage Tax Cases, 12 
 Wall. 204 ; State Tax on Railway Gross Receipts, 1 5 Wall. 
 284 ; Inman Steamship Company v. Tinker, 94 U. S. 238 ; 
 Cook V. Pennsylvania, 97 U. S. 566 ; Packet Co. v. Keokuk, 
 95 U. S. 80 ; People v. Compagnie G6n6rale Transatlantique, 
 107 U. S. 59 ; Brown v. Houston, 114 U. S. 622; Pitts- 
 burgh & So. Coal Co. V. Bates, 156 U. S. 577 ; Pittsburgh & 
 So. Coal Co. V. La., 156 U. S. 590. 
 ^ No State shall, without the Consent of Congress, lay any Duty of 
 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. 
 
 Green v. Biddle, 8 Wh. i ; Poole et al. v. The Lessee of 
 Fleeger et al., 11 Pet. 185; Cooley t/. Board of Wardens of 
 Port of Philadelphia et al., 12 How. 299; Peete v. Morgan, 19 
 Wall. 581 ; Cannon v. New Orleans, 20 Wall. 577 ; Inman 
 
6i2 CONSTITUTION. [1787-8 
 
 Steamship Company v. Tinker, 94 U. S. 238 ; Packet Co. v. 
 St. Louis, 100 U. S. 423; Packet Co. v. Keokuk, 95 U. S. 80; 
 Vicksburg v. Tobin, 100 U. S. 430 ; Packet Co. v. Catletts- 
 burg, 105 U. S. 559 ; Morgan Steamship Company e/. Louisiana 
 Board of Health, 118 U. S. 455; Ouachita Packet Co. z/. 
 Aiken, 121 U. S. 444; Huse v. Glover, 119 U. S. 543 ; Har- 
 mon V. Chicago, 147 U. S. 396 ; Va. v. Tenn., 148 U. S. 503 ; 
 Wharton v. Wise, 153 U. S. 155. 
 
 ARTICLE n. 
 
 Section L ' The executive Power shall be vested in a President 
 of the United States of America. . He shall hold his Ofifice 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 Representative, or 
 Person holding an Office of Trust or Pro^t under the United States, 
 shall be appointed an Elector. 
 
 Chisholm, ex., v. Georgia, 2 Dall. 419; Leitensdorfer et al. 
 V. Webb, 20 How. 176 ; Ex parte Siebold, 100 U. S. 271 ; 
 McPherson 7/. Blacker, 146 U. S. i. 
 
 [* The Electors shall meet in their respective States, and vote by 
 Ballot for two 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 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 chuse, by Ballot one of them 
 for President ; and if no Person liave a Majority, then from the 
 five highest on the List the said House shall in like Manner chuse 
 the President. But in chusing 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 chuse from them by Ballot the Vice President.] 
 
 * This clause, within brackets, has been superseded by the Xllth 
 Amendment. See p 
 
1787-8] CONSTITUTION. 613 
 
 ' The Congress may determine the Time of chusing the Electors, 
 and the Day on which they shall give their Votes ; which Day 
 shall be the same throughout the Ujjiited 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 
 within the United States. 
 
 English V. The Trustees of the Sailors' Snug Harbor, 3 Pet. 
 
 99- 
 '' In Case of the Removal of the President from Office, or of his 
 Death, Resignation, or 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 wliat Officer shall then act as Presi- 
 dent, 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 encreased 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. 
 
 Pollock V. Farmers' Loan & Trust Co. 157 U. S. 429. 
 ' 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." 
 
 Sec. II. '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 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 subject 
 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. 
 
 United States v. Wilson, 7 Pet. 150; Ex parte William 
 Wells, 18 How. 307 ; Ex parte Garland, 4 Wall. 333 ; Arm- 
 strong's Foundry, 6 Wall. 766 ; The Grape Shot, 9 Wall. 129 ; 
 United States 7/. Padelford, 9 Wall. 542 ; United States v. 
 Klein. 13 Wall. 128 ; Armstrong v. The United States, 13 
 Wall. 156; Pargoud v. The United States, 13 Wall. 156; 
 Hamilton v. Dillin, 21 Wall. 73; Mechanics and Traders' 
 Bank v. Union Bank, 22 Wall. 276 : Lamar, ex., v. Browne et 
 al., 92 U. S. 187; Wallach et al. v. Van Riswick, 92 U. S. 202. 
 ^ He shall have PovVer, 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 
 
6 14 CONSTITUTION. [1787-8 
 
 and Consent of the Senate, shall appoint Ambassadors, other public 
 Ministers and Consuls, Judges ot the supreme Court, and all other 
 Officers of the United States, \*hose Appointments are not herein 
 otherwise provided for, and which shall be established by Law : 
 but the Congress may by Law vest the Appointment of such 
 infeuor Ofificers, as they think proper, in the President alone, in the 
 Courts of Law, or in the Heads of Departments. 
 
 Ware v. Hylton et al., 3 Dall. 199; Marbury v. Madison, i 
 Cr. 137 ; United States v. Kirkpatrick, 9 Wh. 720 ; American 
 Insurance Company v. Canter (356 bales cotton), I Pet. 511 ; 
 Foster and Elam v. Neilson, 2 Pet. 253 ; Cherokee Nation v. 
 State of Georgia, 5 Pet. i ; Patterson v. Gwinn et al., 5 Pet. 
 233 ; Worcester v. State of Georgia, 6 Pet. 515 ; City of New 
 Orleans v. De Armas et al., 9 Pet. 224; Holden v. Joy, 17 
 Wall. 211 ; Geofroy v. Riggs, 133 U. S. 258 ; Homer v. U. S., 
 143 U. S. 570 ; Shoemaker v. U. S., 147 U. S. 282. 
 ' The President shall have Power to fill up all Vacancies that 
 may happen during the Recess of the Senate, by granting Com- 
 missions which shall expire at the End of their next Session. 
 The United States v. Kirkpatrick et al., 9 Wh. 720. 
 Sec. III. He shall from time to time give to the Congress Infor- 
 mation of the State of the Union, and recommend to their Con- 
 sideration such Measures as he shall judge necessary and expedient ; 
 he may, on extraordinary Occasions, convene both Houses, or either 
 of them, and in Case of Disagreement between them, with Respect 
 to the Time of Adjou'-nment, 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. 
 
 Marbury v. Madison, i Cr. 137 ; Kendall, Postmaster 
 
 General, v. The United States, 12 Pet. 524 ; Luther v. Borden, 
 
 7 How. I ; The State of Mississippi v. Johnson, President, 
 
 4 Wall. 475 ; Stewart v. Kahn, 11 Wall. 493 ; In re Neagle, 
 
 135 U. S. I. 
 
 Sec. IV. 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. 
 
 Section I. The judicial Power of the United States, shall be 
 vested in one supreme 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 Behaviour, and shall, at stated Times, receive for their 
 Services, a Compensation, which shall not be diminished during 
 their Continuance in Office. 
 
 Chisholm, ex., t/. Georgia, 2 Dall. 419; Stuart v. Laird, i 
 
 Cr. 299; United States v. Peters, 5 Cr. 115; Cohens Z'. 
 
 Virginia, 6 Wh. 264 ; Martin v. Hunter's Lessee, i Wh. 304 ; 
 
1787-8] CONSTITUTION. 615 
 
 Osborii V. United States Bank, 9 Wh. 738 ; Benner et al. v. 
 Porter, 9 How. 235 ; The United States v. Ritchie, 17 How. 
 525 ; Murray's Lessee et al. v. Hoboken Land and Improve- 
 ment Company, 18 How. 272 ; Ex parte Vallandigham, i 
 Wall. 243; Ames v. Kansas, 11 1 U. S. 449; In re Ross, 140 
 U. S. 453; McAllister v. U. S., 141 U. S. 174; Pollock v. 
 Farmers' Loan & Trust Co., 157 U. S. 429. 
 Sec. II. 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 Ambassadors, other public 
 Ministers and Consuls ; — to all Cases of admiralty and maritime 
 Jurisdiction ; — to Controversies to which the United States shall be 
 a Party ; — to Controversies between two or more States ; — between 
 a State and Citizens of another State ; — between Citizens of different 
 States, — between Citizens of the same State claiming Lands under 
 Grants of different States, and between a State, or the Citizens 
 thereof, and foreign States, Citizens, or Subjects. 
 
 Hayburn's Case (note), 2 Dall. 410 ; Chisholm, ex., v. Georgia, 
 2 Dall. 419: Glass et al. z/. Sloop Betsey, 3 Dall. 6; United 
 States V. La Vengeance, 3 Dall. 297 ; HoUingsworth et al. v. 
 Virginia, 3 Dall. 378 ; Mossman, ex.,w. Higginson, 4 Dall. 12 ; 
 Marbury v. Madison, i Cr. 137 ; Hepburn et al. v. Ellzey, 2 
 Cr. 445 ; United States v. Moore, 3 Cr. 159; Strawbridge et 
 al. V. Curtiss et al., 3 Cr. 267 ; Ex parte Bollman and Swartwout, 
 4 Cr. 75 ; Rose v. Himely, 4 Cr. 241 : Chappedelaine et al. 71. 
 Dechenaux, 4 Cr. 305 ; Hope Insurance Company v. Board- 
 man et al., 5 Cr. 57 ; Bank of United States v. Devaux et al., 5 
 Cr. 6i ; Hodgson et al. v. Bowerbank et al., 5 Cr. 303 ; 
 Owings V. Norwood's Lessee, 5 Cr. 344; Durousseau v. The 
 United States, 6 Cr. 307 ; United States v. Hudson and Good- 
 win, 7 Cr. 32 ; Martin v. Hunter, i Wh. 304 : Colson et al. v. 
 Lewis, 2 Wh. 377 : United States v. Bevans, 3 Wh. 336 ; 
 Cohens v. Virginia, 6 Wh. 264 ; Ex parte Kearney, 7 Wh. 38 ; 
 Matthews v. Zane, 7 Wh. 164 ; Osborn v. United States Bank, 
 9 Wh. 738 ; United States v. Ortega, 11 Wh. 467 ; American 
 Insurance Company v. Canter (356 bales cotton), i Pet. 511 ; 
 Jackson v. Twentyman, 2 Pet. 136; Cherokee Nation v. 
 State of Georgia, 5 Pet. I ; State of New Jersey v. State of 
 New York, 5 Pet. 283 ; Davis v. Packard et al., 6 Pet. 41 ; 
 United States v. Arredondoet al. 6 Pet. 691 ; Davis ■z'. Packard 
 et al., 7 Pet. 276 ; Breedlove et al. v. Nickolet et al., 7 Pet. 413 ; 
 Brown v. Keene, 8 Pet. 112 ; Davis v. Packard et al., 8 Pet. 
 312; City of New Orleans ^'. De Armas et al., 9 Pet. 224; 
 The State of Rhode Island v. The Commonwealth of Massa- 
 chusetts, 12 Pet. 657 ; The Bank of Augusta v. Earle, 13 Pet. 
 519; The Commercial and Railroad Bank of Vicksburg v. 
 Slocomb et al., 14 Pet. 60 ; Suydam et al. v. Broadnax, 14 Pet. 
 67 ; Prigg V. The Commonwealth of Pennsylvania, 16 Pet. 530 ; 
 Louisville, Cincinnati and Charleston Railway Company v. 
 Letson, 2 How. 497 ; Gary et al. v. Curtis, 3 How. 236 ; 
 
6i6 CONSTITUTION. [1787-8 
 
 Warring v. Clark, 5 How. 441 ; Luther v. Borden, 7 How. i ; 
 Sheldon et al. v. Sill, 8 How. 441 ; The Propeller Genesee 
 Chief V. Fitzhugh et al., 1 2 How. 443 ; Fretz et al. v. Ball et al ., 
 12 How. 476; Neves et al. v. Scott et al., 13 How. 268; 
 State of Pennsylvania ■z/.-The Wheeling, etc. Bridge Company 
 et al., 13 How. 518; Marshall v. The Baltimore and Ohio 
 R. R. Co., 16 How. 314; The United States v. Guthrie, 17 
 How. 284; Smith v. State of Maryland, 18 How. 71 ; Jones 
 et al. V. League, 18 How. 76; Murray's Lessee et al. v. 
 Hoboken Land and Improvement Company, 18 How. 272 ; 
 Hyde et al. v. Stone, 20 How. 170; Irvine v. Marshall et al., 
 20 How. 558 ; Fenn v. Holmes, 21 How. 481 : Moorewood et 
 al. V. Erequist, 23 How. 491 ; Commonwealth of Kentucky v. 
 Dennison, governor, 24 How. 66 ; Ohio and Mississippi Rail- 
 road Company v. Wheeler, i Black 286 ; The Steamer St. 
 Lawrence, i Black 522 ; The Propeller Commerce, i Black 
 574; Ex parte Vallandigham, i Wall. 243; Ex parte Milligan, 
 4 Wall. I ; The Moses Taylor, 4 Wall. 41 1 ; State of Missis- 
 sippi V. Johnson, President, 4 Wall. 475 ; The Hine v. Trevor, 
 4 Wall. 555 ; City of Philadelphia v. The Collector, 5 Wall. 
 720 ; State of Georgia v. Stanton, 6 Wall. 50 ; Payne v. Hook, 
 7 Wall. 425 ; The Alicia, 7 Wall. 571 ; Ex parte Yerger, 8 
 Wall. 85; Insurance Company v. Dunham, II Wall, i; 
 Virginia v. West Virginia, 1 1 Wall. 39 ; Coal Company v. 
 Blatchford, II Wall. 172; Railway Company v. Whitton's 
 Adm., 13 Wall. 270; Tarble's Case, 13 Wall. 397 ; BIyew et 
 al. V. The United States, 13 Wall. 581 ; Davis v. Gray, 16 
 Wall. 203 ; Case of the Sewing Machine Companies, 18 
 Wall. 353 ; Insurance Company v. Morse, 20 Wall. 445 ; Van- 
 nevar u. Bryant, 21 Wall. 41 ; The Lottawanna, 21 Wall. 
 558; Gaines v. Fuentes et al., 92 U. S. 10; Miller v. Dows, 
 94 U. S. 444 ; Doyle v. Continental Insurance Company, 94 
 U. S. 535 ; Tennessee v. Davis, loo U. S. 257 ; Baldwin v. 
 Franks, 120 U. S. 678; Barron v. Burnside, 121 U. S. 186; 
 St. Louis, Iron Mountain and Southern Railway v. Vickers, 
 122 U. S. 360; Chinese Ex. Case, 130 U. S. 581 ; Brooks v. 
 Missouri, 124 U. S. 394; New Orleans Water Works v. 
 Louisiana Sugar Refining Co., 125 U. S. 18; Spencer z'. 
 Merchant, 125 U. S. 345 ; Dale Tile Mfg. Co. v. Hyatt, 125 
 U. S. 46 ; Felix v. Scharnweber, 125 U. S. 54 ; Hannibal and 
 St. Joseph R. R. v. Missouri River Packet Co., 125 U. S. 260 ; 
 Kreiger v. Shelby R. R. Co., 125 U. S. 39 ; Craig v. Leitens- 
 dorfer, 127 U. S. 764 ; Jones z/. Craig, 127 U. S. 213 ; Wiscon- 
 sin V. Pelican Ins. Co., 127 U. S. 265 ; U. S. v. Beebe, 127 U. S. 
 338 ; Chinese Ex. Case, 130U. S. 581 ; Lincoln County z". Lun- 
 ing, 133 U.S. 529; Christian?/. Atlantic &N, C.R. Rd. Co., 133 
 U. S. 233 ; Hans v. Louisiana, 134 U. S. i ; Louisiana ex rel. 
 The N. Y. Guaranty & Indemnity Co. v. Steele, 134 U. S. 
 280; Jones V. U. S., 137 U. S. 202; Manchester 7/. Mass., 139 
 U. S. 240 ; In re Ross, 140 U. S. 453 ; In re Garnett, 141 
 U. S. I ; TJ. S. V. Texas, 143 U. S. 621 ; Cooke v. Avery, 147 
 
ITST-Sl CONSTITUTION. 617 
 
 U. S. 375 ; S. Pac. Co. v. Denton, 146 U. S. 202; Lawton v. 
 Steele, 152 U. S. 133; Interstate Com. Comsn. v. Brinson, 
 154 U.S. 447. 
 ' In all Cases affecting Ambassadors, other public Ministers and 
 Consuls, and those in which a State shall be Party, the supreme 
 Court shall have original Jurisdiction. In all the other Cases be- 
 fore mentioned, the supreme Court shall have appellate Jurisdic- 
 tion, both as to Law and Fact, with such Exceptions, and under 
 such Regulations as the Congress shall make. 
 
 Chisholm, ex., v. Georgia, 2 Dall. 419; Wiscart et al. v. 
 Dauchy, 3 Dall. 321; Marbury w. Madison, i Cr. 137 ; Durous- 
 seau et al. v. United States, 6 Cr. 307 ; Martin v. Hunter's 
 Lessee, i Wh. 304; Cohens v. Virginia, 6 Wh. 264; Ex parte 
 Kearney, 7 Wh. 38; Wayman v. Southard, 10 Wh. i; Bank 
 of the United States z/. Halstead, 10 Wh. 51; United States z'. 
 Ortega, 11 Wh. 467; The Cherokee Nation z/. The State of 
 Georgia, 5 Pet. i ; Ex parte Crane et als., 5 Pet. 189; The 
 State of New Jersey v. The State of New York, 5 Pet. 283 ; 
 Ex parte Sibbald v. United States, 12 Pet. 488 ; The State of 
 Rhode Island v. The State of Massachusetts, 12 Pet. 657; 
 State of Pennsylvania v. The Wheeling, etc.. Bridge Company, 
 13 How. 518 ; In re Kaine, 14 How. 103 ; Ableman v. Booth 
 and United States z/. Booth, 21 How. 506; Freeborn w. Smith, 
 2 Wall. 160; Ex parte McCardle, 6 Wall. 318; Ex parte Mc- 
 Cardle, 7 Wall. 506 ; Ex parte Yerger, 8 Wall. 85 ; The Lucy, 
 8 Wall. 307 ; The Justices v. Murray, 9 Wall. 274 ; Pennsyl- 
 vania V. Quicksilver Company, 10 Wall. 553 ; Murdock v. 
 City of Memphis, 20 Wall. 590; Bors z/. Preston, iii U. S. 
 252; Ames V. Kansas, iii U. S. 449; Clough v. Curtis, 134 
 U. S. 361 ; In re Neagle, 135 U. S. i ; Mobile & Ohio R. Rd. 
 V. Tenn., 153 U. S. 486. 
 ' 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. 
 
 Ex parte Milligan, 4 Wall. 2 ; EUenbecker z/. Plymouth 
 County, 134 U. S. 31 ; Cook v. U. S., 138 U. S. 157 ; In re 
 Ross, 140 U. S. 453. 
 Sec. III. ' Treason against the United States, shall consist 
 only in levying War against them, or in adhering to their Enemies, 
 giving them Aid and Comfort. No Person shall be convicted of •■ 
 Treason unless on the Testimony of two Witnesses to the same 
 overt Act, or on Confession in open Court. 
 
 United States v. The Insurgents, 2 Dall. 335 ; United 
 
 States V. Mitchell, 2 Dall. 348 ; Ex parte Bollman and Swart- 
 
 wout, 4 Cr. 75 : United States v. Aaron Burr, 4 Cr. 469. 
 
 '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. 
 
6l8 CONSTITUTION. [1787-8 
 
 Bigelow V. Forest, 9 Wall. 339; Day v. Micou, 18 Wall. 
 156; Ex parte Lange, 18 Wall. 163; Wallach et al. v. Van 
 Riswick, 92 U. S. 202. 
 
 ARTICLE IV. 
 
 Section I. 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 Proceedings shall 
 be proved, and the Effect thereof. 
 
 Mills V. Duryee, 7 Cr. 481 ; Hampton v. McConnel, 3 Wh. 
 234; Mayhew v. Thatcher, 6 Wh. 129; Darby's Lessee v. 
 Mayer, loWh. 465; The United States v. Amedy, 11 Wh. 
 392 ; Caldwell et al. v. Carrington's Heirs, 9 Pet. 86 ; M'El- 
 moyle v. Cohen, 13 Pet. 312 ; The Bank of Augusta v. Earle, 
 13 Pet. 519 ; Bank of the State of Alabama v. Dalton, 9 How. 
 522; D'Arcy w. Ketchum, 11 How. 165; Christmas v. Rus- 
 sell, 5 Wall, 290 ; Green v. Van Buskirk, 7 Wall. 139; Paul 7/. 
 Virginia, 8 Wall. 168 ; Board of Public Works v. Columbia 
 College, 17 Wall. 521 ; Thompson v. Whitman, 18 Wall. 
 457 ; Bonaparte v. Tax Court, 104 U. S. 592 ; Hanley v. 
 Donoghue, 116 U. S. i ; Renaud v. Abbott, 116 U. S. 277; 
 Chic, and Alton R. R. v. Wiggins Ferry Co., 119 U. S. 615 ; 
 Cole V. Cunningham, 133 U. S. 107; Blount t/. Walker, 134 
 U. S. 607 ; Texas & Pacific Ry. Co. v. Southern Pacific Co., 
 137 U. S. 48; Simmons w. Saul, 138 U. S. 439; Reynolds 7/. 
 Stockton, 140 U. S. 254 ; Carpenter v. Strange, 141 U. S. 
 87 ; Glenn v. Garth, 147 U. S. 360; Huntington v, Allril, 146 
 U. S. 657. 
 Sec. II. ' The Citizens of each State shall be entitled to all 
 Privileges and Immunities of Citizens in the several States. 
 
 Bank of United States v. Devereux, 5 Cr. 61 ; Gassies v. 
 Ballou, 6 Pet. 761 ; The State of Rhode Island v. The Com- 
 monwealth of Massachusetts, 12 Pet. 657 ; The Bank of Au- 
 gusta 7/. Earle, 13 Pet. 519; Moore z/. The People of the State 
 of Illinois, 14 How. 13 ; Conner et al. v. Elliot et al., 18 How. 
 591 ; Dred Scott v. Sanford, 19 How. 393; Crandall?/. State 
 of Nevada, 6 Wall. 35 ; Woodruff v. Parham, 8 Wall. 123 ; 
 Paul V. Virginia, 8 Wall. 168 ; Downham v. Alexandria Coun- 
 , oil, 10 Wall. 173 ; Liverpool Insurance Company v. Massa- 
 chusetts, 10 Wall. 566; Ward v. Maryland, 12 Wall. 418; 
 Slaughterhouse Cases, 16 Wall. 36 ; Bradwell ?/. The State, 16 
 Wall. 130 ; Chemung Bank v. Lowery, 93 U. S. 72 ; McCready 
 V. Virginia, 94 U. S. 391 ; Brown v. Houston, 114 U. S. 622 ; 
 Pembina Mining Co. z/. Penna., 125 U. S. 181; Kimmish v. 
 Ball, 129 U. S. 217; Cole v. Cunningham, 133 U. S. 107; 
 Leisy v. Hardin, 135 U. S. 100 ; Minnesota z/. Barber, 136 U. 
 S. 313 ; McKane v. Durston, 153 U. S. 684 ; Pittsburgh & So. 
 Coal Co. V. Bates, 156 U. S. 577. 
 
lti^-»] CONSTITUTION. 6ig 
 
 ' 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 executive Authority of the State from 
 which he fled, be delivered up, to be removed to the State having 
 Jurisdiction of the Crime. 
 
 Holmes v. Jennison et al., 14 Pet. 540 ; Commonwealth of 
 
 Kentucky v. Dennison, governor, 24 How. 66 ; Taylor v. 
 
 Tainter, 16 Wall. 366; Lascelles z/. Georgia, 148 U. S. 537; 
 
 Pearce v. Texas, 155 U. S. 311. 
 
 ' No Person held to Service or Labour 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 
 
 Labour, but shall be delivered up on Claim of the Party to whom 
 
 such Service or Labour may be due. 
 
 Prigg V. The Commonwealth of Pennsylvania, 16 Pet. 539; 
 
 Jones V. Van Zandt, 5 How. 215 ; Strader et al. v. Graham, 
 
 10 How. 82 ; Moore v. The People of the State of Illinois, 14 
 
 How. 13 ; Dred Scott v, Sanford, 19 How. 393 ; Ableman v. 
 
 Booth and United States v. Booth, 21 How. 506; Callan z/. 
 
 Wilson, 127 U. S. 540; Nashville, Chattanooga, etc. Rwy. 
 
 V. Alabama, 128 U. S. 96. 
 
 Sec. ni. ' New States may be admitted by the Congress 
 
 into this Union ; but no new States 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. 
 
 American Insurance Company et al. v. Canter (356 bales 
 cotton), I Pet. 511; Pollard's Lessee t/. Hagan, 3 How. 212 ; 
 Cross et al. v. Harrison, 16 How. 164. 
 ^ 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 Con- 
 stitution shall be so construed as to Prejudice any Claims of the 
 United States, or of any particular State. 
 
 McCulloch V. State of Maryland, 4 Wh. 316 ; American In- 
 surance Company v. Canter, i Pet. 511 ; United States v. 
 Gratiot et al., 14 Pet. 526 ; United States v. Rogers, 4 How. 
 567 ; Cross et al. v. Harrison, i6 How. 164 ; Muckey et al. 
 V. Coxe, 18 How. 100; Gibson v. Chouteau, 13 Wall. 92; 
 Clinton v. Englebert, 13 Wall. 434; Beall v. New Mexico, 
 16 Wall. 535 ; Davis v. Beason, 133 U. S. 333 ; Wiscon- 
 sin Central R. Rd. Co. v. Price County, 133 U. S. 496; 
 Cope V. Cope, 137 U. S. 682; Mormon Church v. U. S., 
 136 U. S. I. 
 Sec. IV. The United States shall guarantee to every State 
 in this Union a Republican Form of Government, and shall protect 
 each of them against Invasion ; and on Application of the Legis- 
 lature, or of the Executive (when the Legislature cannot be con- 
 vened) against domestic Violence. 
 
 Luther v. Borden, 7 How. i ; Texas v. White, 7 Wall. 700. 
 
620 CONSTITUTION. [1787-8 
 
 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 proposing 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 Conventions in three-fourths 
 thereof, as the one or the other Mode of Ratification may be pro- 
 posed by the Congress; Provided 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 it's equal Suffrage in the Senate. 
 HoUingsworth et al. v. Virginia, 3 Dall. 378. 
 
 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 Constitution, 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. 
 
 Hayburn's Case, 2 Dall. 409; Ware v. Hilton, 3 Dall. 199; 
 
 Calder and Wife v. Bull and Wife, 3 Dall. 386 ; Marbury v. 
 
 Madison, i Cr. 137; Chirac v. Chirac, 2 Wh. 259; McCul- 
 
 loch V. The State of Maryland, 4 Wh. 316 ; Society v. New 
 
 Haven, 8 Wh. 464 ; Gibbons v. Ogden, 9 Wh. i ; Foster and 
 
 Elam V. Neilson, 2 Pet. 253; Buckner z/. Finley, 2 Pet. 586; 
 
 Worcester v. State of Georgia, 6 Pet. 515 ; Kennett et al. v. 
 
 Chambers, 14 How. 38 ; Lodge v. Woolsey, 18 How. 331 ; 
 
 State of New York "v. Dibble, 21 How. 366; Ableman v. 
 
 Booth and United States v. Booth, 21 How. 506; Sinnot v. 
 
 Davenport, 22 How. 227 ; Foster v. Davenport, 22 How. 
 
 244 ; Haver u. Yaker, 9 \VaIl. 32 ; Whitney v. Robertson, 124 
 
 U. S. 190; In re Neagle, 135 ij. S. i; Cherokee Nation 
 
 V. Kansas Ry. Co., 135 U. S. 641 ; Cook Co. v. Calumet & 
 
 Chicago Canal Co., 138 U. S. 635 ; Gulf, Colorado & Santa 
 
 Yk Rwy. Co. -J. Hefley, 158 U. S. 98; In re Quarlest/. Butler, 
 
 158 U. S. 532. 
 
 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 
 
 Quahfication to any Office or public Trust under the United States. 
 
 Ex parte Garland, 4 Wall. 333; Davis v. Beason, 1 33 U. S. 333. 
 
1787-8] 
 
 CONSTITUTION. 
 
 621 
 
 ARTICLE VII. 
 
 The Ratification of the Conventions of nine States, shall be suf- 
 ficient 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 Independance of the United States of America the 
 Twelfth In witness whereof We have hereunto subscribed 
 our Names, GO- WASHINGTON, 
 
 Prestdt and deputy from Virginia. 
 NEW HAMPSHIRE. PENNSYLVANIA. VIRGINIA. 
 
 John Langdon, 
 Nicholas Gilman. 
 
 MASSACHUSETTS. 
 Nathaniel Gorham, 
 Rufus King. 
 
 CONNECTICUT. 
 Wm Saml Johnson, 
 Roger Sherman. 
 
 NEW YORK. 
 
 Alexander Hamilton. 
 
 NEW JERSEY. 
 Wil : Livingston, 
 David Brearley, 
 Wm Paterson, 
 Jona : Dayton. 
 
 B Franklin, 
 Thomas Mifflin, 
 Robt Morris, 
 Geo. Clymer, 
 Thos Fitzsimons, 
 Jared IngersoU, 
 James Wilson, 
 Gouv Morris. 
 
 DELAWARE. 
 Geo: Read, 
 Gunning Bedford 
 
 jun, 
 John Dickinson, 
 Richard Bassett, 
 Jaco : Broom. 
 
 MARYLAND. 
 
 James McHenry, 
 Dan of St Thos 
 
 Jenifer, 
 Danl Carroll. 
 
 John Blair, 
 James Madison Jr. 
 
 NORTH CAROLINA. 
 Wm Blount, 
 Richd Dobbs Spaight, 
 Hu Williamson. 
 
 SOUTH CAROLINA. 
 J. Rutledge, 
 Charles Cotesworth 
 
 Pinckney, 
 Charles Pinckney, 
 Pierce Butler. 
 
 GEORGIA. 
 William Few, 
 Abr Baldwin. 
 
 Attest WILLIAM JACKSON Secretary. 
 
 AMENDMENTS TO CONSTITUTION. 
 
 Articles in addition to and Amendment Of the Constitution 
 of the United States of America, proposed by Congress, and rati- 
 fied by the Legislatures of the several States, pursuant to the 
 Fifth Article of the original Constitution. 
 
 Ellenbecker z/. Plymouth County, 134 U. S. 3. 
 
 ARTICLE I.* 
 
 Congress shall make no law respecting an establishment of 
 religion, or prohibiting the free exercise thereof; or abridging the 
 
 * The first ten amendments to the Constitution of the United States 
 were proposed to the legislatures of the several States by the First Con. 
 
622 CONSTITUTION. Cl'89 
 
 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. 
 
 Terret et al. v. Taylor et al., 9 Cr. 43 ; Vidal et al. v. Gi- 
 
 rard et al., 2 How. 127; Ex parte Garland, 4 Wall. 333; 
 
 United States z/. Cruikshank et al, 92 U. S. 542; Reynolds 
 
 V. United States, 98 U. S. 145 ; Davis v. Season, 133 U. S. 
 
 333; In re Rapier, 143 U. S. no; Homer v. U. S., 143 
 
 U. S. 192. 
 
 ARTICLE II. 
 
 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. 
 
 Presser 7/. Illinois, 116 U. S. 252. 
 
 ARTICLE III. 
 
 No Soldier shall, in time of peace be quartered in any house, 
 without the consent of the owner, nor in time of war, but in a man- 
 ner to be prescribed by law. 
 
 ARTICLE IV. 
 
 The right of the 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 prob- 
 able cause, supported by Oath or affirmation, and particularly de- 
 scribing the place to be searched, and the persons or things to be 
 seized. 
 
 Smith V. State of Maryland, 18 How. 71 ; Murray's Lessee 
 et al. V. Hoboken Land and Improvement Company, 18 How. 
 272 ; Ex parte Milligan, 4 Wall. 2 ; Boyd v. United States, 
 116 U. S. 616 ; Fong Yuen Ting v. U. S., 149 U. S. 698. 
 
 ARTICLE V. 
 
 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 be twice 
 put in jeopardy of life or limb ; nor shall be compelled in any 
 
 grass, on the 25th of September, 1789. They were ratified by the fol- 
 lowing States, and the notification of ratification by the goyemors 
 thereof were successively communicated by the President to Congress : 
 New Jersey, November 20, 1789 ; Maryland, December ig, 1789 ; 
 North Carolina, December 22, 1789 ; South Carolina, January 19, 1790; 
 New Hampshire, January 25, 1790 ; Delaware, January 28, 1790 ; 
 Pennsylvania, March 10, 1790 ; New York, March 27, 1790 ; Rhode 
 Island, June 15, 1790 ; Vermont, November 3, 1791 ; and Virginia, De- 
 cember 15, 1791. There is no evidence on the journals of Congress that 
 the legislatures of Connecticut, Georgia, and Massachusetts ratified them. 
 
1789] AMENDMENTS TO CONSTITUTION. 623 
 
 criminal case to be a witness against himself, nor be deprived of 
 life, liberty, or property, witliout due process of law ; nor sliall 
 private property be taken for public use, without just compensa- 
 tion. 
 
 United States v. Perez, 9 Wh. 579 ; Barron v. The City 
 of Baltimore, 7 Pet. 243 ; Fox v. Ohio, 5 How. 410 ; West 
 River Bridge Company v. Dix et al., 6 How. 507 ; Mitchell v. 
 Harmony, 13 How. 115; Moore, ex., z/. The People of the 
 State of Illinois, 14H0W. 13; Murray's Lessee et al., 7/. Hoboken 
 Land and Improvement Company, 18 How. 272 ; Dynes v. 
 Hoover, 20 How. 65 ; Withers v. Buckley et al., 20 How. 84; 
 Gilman v. The City of Sheboygan, 2 Black 510; Ex parte 
 Milligan, 4 Wall. 2 ; Twitchell v. The Commonwealth, 7 
 Wall. 321 ; Hepburn v. Griswold, 8 Wall. 603 ; Miller v. 
 United States, 11 Wall. 268; Legal Tender Cases, 12 Wall. 
 457; Pumpelly z'. Green Bay Company, 13 Wall. 166; Osborn 
 V. Nicholson, 13 Wall. 654; Ex parte Lange, 18 Wall. 163; 
 Kohl et al. v. United States, 91 U. S. 367 ; Cole v. La Grange, 
 113 U. S. i; Ex parte Wilson, 114 U. S. 417; Brown v. 
 Grant, 116 U. S. 207; Boyd v. United States, 116 U. S. 616; 
 Makin v. United States, 117 U. S. 348; Ex parte Bain, 121 
 U. S. I ; Parkinson v. United States, 121 U. S. 281 ; Spies v. 
 Illinois, 123 U. S. 131 ; Sands z/. Manistee River Improvement 
 Company, 123 U. S. 288; Mugler v. Kansas, 123 U. S. 623; 
 Great Falls Manufacturing Company v. The Attorney General, 
 124 U. S. 581; United States z/. De Walt, 128 U. S. 393; 
 Huling V. Kaw Valley Railway and Improvement Company, 
 130 U. S. 559; Freeland v. Williams, 131 U. S. 405 ; Cross 
 V. North Carolina, 132 U. S. 131 ; Manning v. French, 133 
 U. S. 186; Searle v. School Dist. No. 2, 133 U. S. 553; 
 Palmer v. McMahon, 133 U. S. 660 ; Ellenbecker v. Plymouth 
 County, 134 U. S. 31 ; Chic. Mil. & St. Paul Rwy. Co. v. 
 Minnesota, 134 U. S. 418; Wheeler v. Jackson, 137 U. S. 
 245 ; Holden v. Minnesota, 137 U. S. 245 ; Caldwell v. Texas, 
 137 U. S. 692 ; Cherokee Nation v. Kansas Ry. Co. 135 U. S. 
 641 ; Kaukauna Water Power Co. v. Miss. Canal Co., 142 
 U. S. 254 ; New Orleans v. N. O. Water W'ks, 142 U. S. 79 ; 
 Counselman t/. Hitchcock, 142 U. S. 547 ; Simmonds v. U. S., 
 142 U. S. 148 ; Horn Silver Mining Co. v. N. Y., 143 U. S. 
 305; Hallinger v. Davis, 146 U. S. 314; Shoemaker v. 
 U. S., 147 U. S. 282 ; Thorington v. Montgomery, 147 U. S. 
 490; Yesler v. Wash'n Harbor Line Coms'rs, 146 U. S. 646; 
 Monongahela Nav. Co. v. U. S. 148 U. S. 312; Fong Yuen 
 Ting V. U. S., 149 U. S. 698 ; In re Lennon, 150 U. S. 393; 
 Pitts. C. C. & St. L. Rwy. Co. v. Backus, 154 U. S. 421 ; Inter- 
 state Com. Comsn. v. Brimson, 154 U. S. 447 ; Pearce v. Texas, 
 155 U. S. 311 ; Linford v. Ellison, 155 U. S. 503 ; Andrews v. 
 Swartz, 156 U. S. 272; Pittsburgh & Southern Coal Co. v. 
 La., 156 U. S. 590 ; St. L. & S. F. Rwy. Co. v. Gill, 156 U. S. 
 649 ; Johnson v. Sayre, 1 58 U. S. 109 ; Sweet v. Rechel, 1 59 
 U. S. 380. 
 
624 AMENDMENTS TO CONSTITUTION. [1789 
 
 ARTICLE VI. 
 
 In all criminal prosecutions tlie accused shall enjoy the right to 
 a speedy and public trial, by an impartial jury of the State and 
 district wherein the crime shall have been committed, which dis- 
 trict shall have been previously ascertained by law, and to be 
 informed of the nature and cause of the accusation ; to be con- 
 fronted with the witnesses against him ; to have compulsory proc- 
 ess for obtaining witnesses in his favor, and to have the Assistance 
 of Counsel for his defence. 
 
 United States v. Cooledge, i Wh. 415 ; Ex parte Kearney, 
 7 Wh. 38 ; United States v. Mills, 7 Pet. 142 ; Barron v. City 
 of Baltimore, 7 Pet. 243 ; Fox v. Ohio, 5 How. 410 ; Withers 
 V. Buckley et al., 20 How. 84 ; Ex parte Milligan, 4 Wall. 2 ; 
 Twitchell v. The Commonwealth, 7 Wall. 321 ; Miller v. 
 The United States, 11 Wall. 268; United States z/. Cook, 17 
 Wall. 168; United States i/. Cruikshank et al., 92 U. S. 542; 
 Spies z/. Illinois, 123 U. S. 131 : Ellenbecker v. Plymouth Co., 
 134 U. S. 31 ; Jones v. U. S., 137 U. S. 202; Cook v. U. S., 
 138 U. S. 157 ; In re Ross, 140 U. S. 453 ; Hallinger v. Davis, 
 146 U. S. 314; Mattox V. U. S., 156 U. S. 237; Bergemann 
 V. Becker, 157 U. S. 655. 
 
 ARTICLE VII. 
 
 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 re-examined in any 
 Court of the United States, than according to the rules of the 
 common law. 
 
 United States v. La Vengeance, 3 Dall. 297 ; Bank of 
 Columbia v. Oakley, 4 Wh. 235 ; Parsons v. Bedford et al., 
 3 Pet. 433 ; Lessee of Livingston v. Moore et al., 7 Pet. 469 ; 
 Webster z/. Reid, 11 How. 437; State of Pennsylvania z/. The 
 Wheeling &c. Bridge Company et al., 13 How. 518 ; The Jus- 
 tices V. Murray, 9 Wall. 274; Edwards v. Elliott et al., 21 
 Wall. 532 ; Pearson v. Yewdall, 95 U. S. 294 ; McElrath v. 
 United States, 102 U. S. 426 ; Callan v. Wilson, 127 U. S. 
 540; Ark. Valley Land and Cattle Co. v. Mann, 130 U. S. 
 69; Whitehead v. Shattuck, 138 U. S. 146; Scott v. Neely, 
 140 U. S. 106; Cates v. Allen, 149 U. S. 451. 
 
 ARTICLE VIII. 
 
 Excessive bail shall not be required, nor excessive fines imposed, 
 nor cruel and unusual punishments inflicted. 
 
 Pervear v. Commonwealth, 5 Wall. 475 ; Manning v. French, 
 133 U. S. 186; Ellenbecker "v. Plymouth County, 134 U. S. 
 31 ; In re Kemmler, 136 U. S. 436; McElvaine v. Brush, 142 
 U. S. 155 ; O'Neill v. Vermont, 144 U. S. 323. 
 
1789-98] AMENDMENTS TO CONSTITUTION. 625 
 
 ARTICLE IX. 
 
 The enumeration in the Constitution, of certain rights, shall not 
 be construed to deny or disparage others retained by the people. 
 Lessee of Livingston v. Moore et al,, 7 Pet. 469. 
 
 ARTICLE X. 
 
 The powers not delegated to the United States by the Constitu- 
 tion, nor prohibited by it to the States, are reserved to the States 
 respectively, or to the people. 
 
 Chisholm, ex., v. State of Georgia, 2 Dall. 419; HoUings- 
 worth et al. v. The State of Virginia, 3 Dall. 378 ; Martin v. 
 Hunter's Lessee, i Wh. 304; McCulIoch v. State of Mary- 
 land, 4 Wh. 316 ; Anderson v. Dunn, 6 Wh. 204 ; Cohens v. 
 Virginia, 6 Wh. 264 ; Osborn v. United States Bank, 9 Wh. 
 738 ; Buchler v. Finley, 2 Pet. 586 ; Ableman v. Booth, 21 
 How. 506; The Collector v. Day, 11 Wall. 113; Claflin v. 
 Houseman, assignee, 93 U. S. 130; Inman Steamship Com- 
 pany V. Tinl<er, 94 U. S. 238 ; Church v. Kelsey, 121 U. S. 
 282; Ouachita Packet Co. z/. Aiken, 121 U. S. 444; W. U. 
 Tel. Co. V. Pendleton, 122 U. S. 347 ; Bowman v. Chicago, 
 and Northwestern Ry. Co., 125 U. S. 465; Mahon v. Justice, 
 127 U. S. 700; Leisy z/. Hardin, 135 U, S. 100; Manchester 
 V. Mass. , 1 39 U. S. 240 ; Pollock v. Farmers' Loan & Trust 
 Co. 157 U. S. 429. 
 
 ARTICLE XL* 
 
 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 
 subjects of any Foreign State. 
 
 State of Georgia v. Brailsford et al., 2 Dall. 402 ; Chisholm, 
 ex. V. State of Georgia, 2 Dall. 419; Hollingsworth et al., v. 
 Virginia, 3 Dall. 378 ; Cohens z/. Virginia, 6 Wh. 264; Osborn 
 ■V. United States Bank, 9 Wh. 738 ; United States v. The 
 Planters' Bank, 9 Wh. 904 ; The Governor of Georgia v. 
 Juan Madrazo, i Pet. no; Cherokee Nation v. State of 
 Georgia, 5 Pet. i ; Briscoe v. The Bank of the Commonwealth 
 of Kentucky, 11 Pet. 257 ; Curran v. State of Arkansas et al., 
 15 How. 304; New Hampshire v. Louisiana, io8 U. S. 76; 
 Virginia Coupon Cases, 114 U. S. 270; Hagood v. Southern, 
 117 U. S. 52 ; In re Ayres, 123 U. S. 443 ; Lincoln County v. 
 Luning, 133 U. S. 529; Coupon Cases, 135 U. S. 662; Pen- 
 noyer v. McConnaughy, 140 U. S. i ; In re Taylor. 149 U S. 
 164; Reagan v. Farmers' Loan and Trust Co., 154 U. S. 362 ; 
 Reagan v. Mercantile Trust Co., 154 U. S. 413. 
 
 * The eleventh amendment to the constitution of the United States 
 was proposed to the legislatures of the several states by the Third Con- 
 gress, on the 5th of March, 1794 ; and was declared in a message from 
 the President to Congress, dated the 8th of January, 1798, to have been 
 ratified by the legislatures of three-fourths of the states. 
 
626 AMENDMENTS TO CONSTITUTION. [1804-66 
 
 ARTICLE XII.* 
 
 The Electors shall meet in their respective states, and vote by 
 ballot for President and Vice President, one of whom, at least, 
 shall not be an inhabitant of the same State with themselves ; they 
 shall name in their ballots the person voted for as President, and 
 in distinct ballots the person voted for as Vice President ; 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 the government of the United States, directed 
 to the President of the Senate ; — TheTresident of the Senate shall, 
 in the presence of the Senate and House of Representatives, 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 numbers not exceeding three 
 on the list of those voted for as President, the House of Represent- 
 atives shall choose immediately, by ballot, the President. But in 
 choosing the President, the votes shall Ije 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 numbers 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 num- 
 ber 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. 
 
 ARTICLE Xlll.t 
 
 Section I. Neither slavery nor involuntary servitude, except 
 as a punishment for crime whereof the party shall have been duly 
 
 *The twelfth amendment to the constitution of the United States was 
 proposed to the legislatures of the several states by the Eighth Congress, 
 on the I2th of December, 1803, in lieu of the original third paragraph of 
 the first section of the second article ; and was declared in a proclama- 
 tion of the Secretary of State, dated the 25th of September, 1804, to have 
 been ratified by the legislatures of three-fourths of the states. 
 
 f The thirteenth amendment to the constitution of the United States 
 was proposed to the legislatures of the several states by the Thirty-eighth 
 Congress, on the 1st of February, 1865, and was declared in a proclaraa- 
 
1868] AMENDMENTS TO CONSTITUTION. 627 
 
 convicted, shall exist within the United States, or any place subject 
 to their jurisdiction. 
 
 Sec. II. Congress shall have power to enforce this article by 
 appropriate legislation. 
 
 Dred Scott v. Sanford, 19 How. 393; White v. Hart, 13 
 Wall. 646; Osborn v. Nicholson, 13 Wall. 654; Slaughter- 
 house Cases, 16 Wall. 36 ; Ex parte Virginia, 100 U. S. 339 ; 
 Civil Rights Case, 109 U. S. 3. 
 
 ARTICLE XIV.* 
 
 Section I. All persons bom or naturalized in the United States, 
 and subject to the jurisdiction thereof, are citizens of the United 
 States and of the State wherein they reside. No State shall make 
 or enforce any law which shall abridge the privileges or immuni- 
 
 tion of the Secretary of State, dated the i8th of December, 1865, to have 
 been ratified by the legislatures of twenty-seven of the thirty-six states, 
 viz.: Illinois, Rhode Island, Michigan, Maiyland, New York, West Vir- 
 ginia, Maine, Kansas, Massachusetts, Pennsylvania, Virginia, Ohio, 
 Missouri, Nevada, Indiana, Louisiana, Minnesota, Wisconsin, Vermont, 
 Tennessee, Arkansas, Connecticut, New Hampshire, South Carolina, 
 Alabama, North Carolina, and Georgia. 
 
 * The fourteenth amendment to the Constitution of the United States 
 was proposed to the legislatures of the several States by the Thirty-ninth 
 Congress, on the i6th of June, 1866. On the 21st of July, 1868, Con- 
 gress adopted and transmitted to the Department of State a concurrent 
 resolution declaring that " the legislatures of the States of Connecticut, 
 Tennessee, New Jersey, Oregon, Vermont, New York, Ohio, Illinois, 
 West Virginia, Kansas, Maine, Nevada, Missouri, Indiana, Minne- 
 sota, New Hampshire, Massachusetts, Nebraska, Iowa, Arkansas, Florida, 
 North Carolina, Alabama, South Carolina, and Louisiana, being three- 
 fourths and more of the several States of the Union, have ratified the 
 fourteenth article of amendment to the Constitution of the United States, 
 duly proposed by two-thirds of each House of the Thirty-ninth Congress : 
 Therefore Resolved, That said fourteenth article is hereby declared to be 
 a part of the Constitution of the United States, and it shall be duly 
 promulgated as such by the Secretary of State." The Secretary of State 
 accordingly issued a proclamation, dated the 28th of July, 1868, declaring 
 that the proposed fourteenth amendment had been ratified, in the man- 
 ner hereafter mentioned, by the legislatures of thirty of the thirty-six 
 States, viz. : Connecticut, June 30, 1866; New Hampshire, July 7, 1866 ; 
 Tennessee, July 19, 1866 ; New Jersey, September II, 1866 (and the 
 legislature of the same State passed a resolution in April, 1868, to with- 
 draw its consent to it) ; Oregon, September 19, 1866 ; Vermont, 
 November g, 1866 ; Georgia rejected it November 13, 1866, and ratified 
 it July 21, 186S ; North Carolina rejected it December 4, 1866, and rati- 
 fied it July 4, 1868 ; South Carolina rejected it December 20, 1866, and 
 ratified it July 9, 1868 ; New York ratified it January 10, 1867 ; Ohio 
 ratified it January II, 1867 (and the legislature of the same State passed 
 a resolution in January, 1868, to withdraw its consent to it) ; Illinois rati- 
 fied it January 15, 1867 ; West Virginia, January 16, 1867 ; Kansas, 
 January 18, 1867 ; Maine, January 19, 1867 ; Nevada, January 22, 
 1867 ; Missouri, January 26, 1867 ; Indiana, January 3o, 1867 ; Minne- 
 
628 AMENDMENTS TO CONSTITUTION. [1868 
 
 ties of citizens of the United States ; nor shall 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. 
 
 Strauder v. West Virginia, loo U. S. 303; Virginia v. Rivers, 
 100 U. S. 313; Ex parte Virginia, 100 U. S. 339; Missouri 
 V. Lewis, loi U. S. 22; Civil Rights Cases, 109 U. S. 3; 
 Louisiana v. New Orleans, 109 U. S. 285 ; Hurtado v. Cali- 
 fornia, no U. S. 516; Hagar v. Reclamation Dist., in U. S. 
 701 ; Elk V. Wilkins, 112 U. S. 94; Head v. Amoskeag Mfg. 
 Co., 113 U. S. 9 ; Barbier v. Connolly, 113 U. S. 27; Provi- 
 dent Institution v. Jersey City, 113 U. S. 506; Soon Hing w. 
 Crowley, 113 U. S. 703; Wurts v. Hoagland, 114 U. S. 606; 
 Ky. R. Rd. Tax Cases, 115 U. S. 321 ; Campbell v. Holt, 
 115 U. S. 620; Presser v. Illinois, 116 U. S. 252; Stone v. 
 Farmers' Loan and Trust Co., 116 U. S. 307; Arrowsmith v. 
 Harmoning, 118 U. S. 194; Yick Wo v. Hopkins, 118 U. S. 
 356; Santa Clara Co. v. S. Pacific R. Rd., 118, U. S. 394; 
 Phila. Fire Assn. v. N. Y., 119 U. S. no ; Schmidt v. Cobb, 
 119 U. S. 286; Baldwin v. Frank, 119 U. S. 678; Hayes v. 
 Missouri, 120 U. S. 68; Church v. Kelsey, I2i U. S. 282; 
 Pembina Mining Co. v. Penna., 125 U. S. 181 ; Spencer ^/. Mer- 
 chant, 125 U. S. 345 ; Dow V. Beidelman, 125 U. S. 680; Bank 
 of Redemption v. Boston, 125 U. S. 60 ; Ro Bards v. Lamb, 127 
 U. S. 58; Mo. Pac. Rwy. Co. v. Mackey, 127 U. S. 205; 
 Minneapolis and St. Louis Rwy. v. Herrick, 127 U. S. 210; 
 Powell V. Penna., 127 U. S. 678 ; Kidd v. Pearson, 128 U. S. 
 I ; Nashville, Chattanooga, &c., Rwy. v. Alabama, 128 U. S. 
 96; Walston V. Navin, 128 U. S. 578; Minneapolis and St. 
 Louis Rwy. z/. Beckwith, 129 U. S. 26; Dent z/. West Va. , 129 
 U. S. 114; Huling V. Kaw Valley Rwy. and Improvement 
 Co., 130 U. S. 559; Freeland v. Williams, 131 U. S. 405 ; 
 Cross V. North Carolina, 132 U. S. 131 ; Pennie v. Reis, 132 
 U. S. 464 ; Sugg V. Thornton, 132 U. S. 524 ; Davis v. Beason, 
 133 U. S. 333 ; Ellenbecker v. Plymouth Co., 134 U. S. 31 ; 
 Bell Gap R. Rd. Co. v. Penna., 134 U. S. 232; Chicago, 
 Milwaukee, and St. Paul Rwy. v. Minnesota, 134 U. S. 418 ; 
 Home Ins. Co. v. N. Y.., 134 U. S. 594; Louisville & Nash- 
 ville R. Rd. Co. V. Woodson, 134 U. S. 614; Home Ins. 
 
 sola, February i, 1867 ; Rhode Island, February 7, 1867 ; Wisconsin, 
 February 13, 1867 ; Pennsylvania, February 13, 1867 ; Michigan, 
 February 15, 1867 ; Massachusetts, March 20, 1867 ; Nebraska, June 
 15, 1867 ; Iowa, April 3, 1868 ; Arkansas, April 6, 1868 ; Florida, June 
 9, 1868 ; Louisiana, July 9, 1868 ; and Alabama, July 13, 1868. Georgia . 
 again ratified the amendment February 2, 1870. Texas rejected it 
 November i, 1866, and ratified it February 18, 1870. Virginia rejected 
 it January 19, 1867, and ratified it October 8, i86g. The amendment 
 was rejected by Kentucky January 10, 1867 ; by Delaware, February 8, 
 1867 ; by Maryland, March 23, 1867, and was not afterward ratified by 
 either State, 
 
1868] AMENDMENTS TO CONSTITUTION. 629 
 
 Co. V. N. Y., 134 U. S., 594 ; Leisy v. Harrlin, 135 U. S. 
 100; In re Kemmler, 136 U. S. 436; York v. Texas, 137 
 U. S. 15 ; Crowley v. Christensen, 137 U. S. 89; Wheeler v. 
 Jackson, 137 U. S. 245; Holden v. Minnesota, 137 U. S. 
 483; In re Converse, 137 U. S. 624; Caldwell v. Texas, 137 
 U. S. 692; Kauffman v. Wootters, 138 U. S. 285 ; Lesper z/. 
 Texas, 139 U. S. 462 ; In re Manning, 139 U. S. 504 ; Mabal 
 V. Louisiana, 139 U. S. 621 ; In re Duncan, 139 U. S. 449; 
 In re Shibuya Jugiro, 139 U. S. 291 ; Lent v. Tillson, 140 
 U. S. 316; New Orleans v. N. O. Water W'ks, 142 U. S. 79; 
 McElvaine v. Brush, 142 U. S. 155 ; Kaukauna Water Power 
 Co. V. Miss. Canal Co., 142 U. S. 254 ; Charlotte, Augusta & 
 Col. R. Rd. Co. V. Gibbes, 142 U. S. 386 ; Pacific Ex. Co. v. 
 Siebert, 142 U. S. 339; Horn Silver Mining Co. v. N. Y., 143 
 U. S. 305 ; Budd V. N. Y., 143 U. S. 517 ; Schwab v. Berg- 
 gren, 143 U. S. 442 ; Fielden v. Illinois, 143 U. S. 452 ; N. Y. 
 V. Squire, 144 U. S. 175 ; Brown v. Smart, 144 U. S. 454; 
 McPherson v. Blacker, 146 U. S. i ; Morley v. Lake Shore & 
 Mich. Southern Ry. Co., 146 U. S. 162; Hallinger v. Davis, 
 146 U. S. 314; Yesler v. Washington Harbor Line Comsrs., 
 146 U. S. 646; Butler v. Gorley, 146 U. S. 303 ; Southern 
 Pacific Co. V. Denton, 146 U. S. 202 ; Thorington v. Mont- 
 gomery, 147 U. S. 490; Giozza v. Tiernan, 148 U. S. 657; 
 Paulsen v. Portland, 149 U. S. 30 ; Minn. & St. L. Rwy. Co. 
 V. Emmons, 149 U. S. 364; Columbus So. Railway Co. v. 
 Wright, 151 U. S. 470; In re Frederick, 149 U. S. 70; 
 McNulty V. Calif., 149 U. S. 645; Lees v. U. S. 150 U. S. 
 476; Lawton v. Steele, 152 U. S. 133; Montana Co. v. St. 
 Louis Mining Co., 152 U. S. 160; Duncan v. Missouri, 152 
 U. S. 377; McKane v. Durston, 153 U. S. 684; Marchant z/. 
 Penna. R. R. Co., 153 U. S. 380; Brass v. Stoeser, 153 U. S. 
 391 ; Scott V. McNeal, 154 U. S. 34; Reagan v. Far. Loan 
 & Trust Co., 154 U. S. 362 ; P., C, C. & St. L. R. R. Co. 
 V. Backus, 154 U. S. 421 ; Interstate Com. Comsn. v. Brimson, 
 154 U. S. 447; Reagan v. Mercantile Trust Co., 154 U. S. 
 447 ; Pearcez/. Texas, 156 U. S. 311 ; Pittsburgh & So. Coal 
 Co. V. La., 1 56 U. S. 590 ; Andrews v. Swartz, 1 56 U. S. 
 272; St. L. & S. F. Rwy. Co. v. Gill, 156 U. S. 649; 
 Stevens, adm., v. Nichols, 157 U. S. 370; Bergemann v. 
 Becker, 157 U. S. 655 ; Quarles v. Butler, 158 U. S. 532 ; Gray 
 V. Connecticut, 159 U. S. 74; Central Land Co. tj. Laidley, 
 159 U. S. 103; Moore v. Missouri, 159 U. S. 673; Winona 
 & St. Peter Land Co. v. Minn,, 159 U. S. 528. 
 Sec. II. Representatives shall be apportioned among the several 
 States according 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 States, Represent- 
 atives in Congress, the Executive and Judicial officers of a State, or 
 the members of the Legislature thereof, is denied to any of the 
 male inhabitants of such State, being twenty-one years of age, and 
 
630 AMENDMENTS TO CONSTITUTION. [1868-70 
 
 citizens of the United States, or in any way abridged, except for par- 
 ticipation 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. 
 
 Sec. III. No person shall be a Senator or Representative in 
 Congress, or elector of President or 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 
 support the Constitution of the United States, shall have engaged 
 in insurrection or rebellion against the same, or given aid or com- 
 fort to the enemies thereof. But Congress may by a vote of two- 
 thirds of each House, remove such disability. 
 
 Sec. IV. 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 incurred 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. 
 
 Sec. V. The Congress shall have power to enforce by appro- 
 priate legislation, the provisions of this article. 
 
 Crandall v. The State of Nevada, 6 Wall, 35 ; Paul v. Vir- 
 ginia, 8 Wall. 268; Ward v. Maryland, 12 Wall. 418; 
 SlSilghterhouse Cases, 16 Wall. 36 ; Bradwell v. The State, 
 16 Wall. 130; Bartemeyer v. Iowa, 18 Wall. 129; Minor v. 
 Happersett, 21 Wall. 162 ; Walker v. Sauvinet, 92 U. S. 90; 
 Kennard v. Louisiana, ex rel. Morgan, 92 U. S. 480 ; U. S. 
 V. Cruikshank, 92 U. S. 542 ; Munn v. Illinois, 94 U. S. 113. 
 
 ARTICLE XV.* 
 
 Section I. The right of citizens of the United States to vote 
 shall not be denied or abridged by the United States or by any 
 State on account of race, color, or previous condition of servitude. 
 
 * The fifteenth amendment to the constitution of the United States 
 was proposed to the legislatures of the several states by the Fortieth 
 Congress on the 27th of p'ebruary, i86g, and was declared, in a procla- 
 mation of the Secretary of State, dated March 30, 1870, to have been 
 ratified by the legislatures of twenty-nine of the thirty-seven states. The 
 dates of these ratifications (arranged in the order of their reception at 
 the Department of State) were : From North Carolina, March 5, 1869 ; 
 West Virginia, March 3, l86g ; Massachusetts, March 9-12, i86g ; 
 Wisconsin, March 9, 1869; Maine, March 12, 1869; Louisiana, March 
 5, 1869 ; Michigan, March 8, 1869 ; South Carolina, March 16, 1869 ; 
 Pennsylvania, March 26, i86g ; Arkansas, March 30, i86g ; Connecticut, 
 May ig, 1869 ; Florida, June 15, l86g ; Illinois, March 5, 1869 ; Indiana, 
 May 13-14, 1869 ; New York, March 17- April 14, 1869 (and the legis- 
 
1870] AMENDMENTS TO CONSTITUTION. 631 
 
 Sec. II. The Congress shall have power to enforce this article 
 by appropriate legislation. 
 
 United States v. Reese et al., 92 U. S. 214; United States 
 V. Cruikshank et al., 92 U. S. 542 ; Ex parte Yarborough, 
 no U. S. 651 ; McPherson v. Blacker, 146 U. S. i. 
 
 lature of the same state passed a resolution January 5, 1870, to with- 
 draw its consent to it) ; New Hampshire, July 7, 1869 ; Nevada, March 
 I, 1869 ; Vermont, October 21, 1869 ; Virginia, October 8, 1869 ; 
 Missouri, January 10, 1870; Mississippi, January 15-17, 1870; Ohio, 
 January 27, 1870 ; Iowa, February 3, 1870 ; Kansas, January 18-19, 
 1870 ; Minnesota, February 19, 1870 ; Rhode Island, January 18, 1870 ; 
 Nebraska, February 17, 1870 ; Texas, February l8, 1870. The state 
 of Georgia also ratified the amendment February 2, 1870. 
 
PROPOSED AMENDMENTS TO THE 
 CONSTITUTION. 
 
 AMENDMENTS PROPOSED BY THE CONVENTION OF 
 MASSACHUSETTS, 1 788. 
 
 First. That it be explicitly declared that all powers not expressly 
 delegated by the aforesaid constitution are reserved to the several 
 states to be by them exercised. 
 
 Secondly. That there shall be one representative to every thirty 
 thousand persons according to the census mentioned in the consti- 
 tution, until the whole number of representatives amounts to two 
 hundred. 
 
 Thirdly. That Congress do not exercise the powers vested in 
 them by the fourth section of the first article, but in cases where a 
 state shall neglect or refuse to make the regulations therein men- 
 tioned, or shall make regulations subversive of the rights of the 
 people to a free and equal representation in Congress, agreeably to 
 the constitution. 
 
 Fourthly. That Congress do not lay direct taxes but when the 
 moneys arising from the impost and excise are insufficient for the 
 public exigencies, nor then until Congress shall have first made a 
 requisition upon the states to assess, levy and pay their respective 
 proportion of such requisitions, agreeably to the census fixed in the 
 said constitution, in such way and manner as the legislatures of 
 the states shall think best, and in such case if any state shall 
 neglect or refuse to pay its proportion pursuant to such requisition, 
 then Congress may assess and levy such state's proportion, together 
 with interest thereon at the rate of six per cent, per annum, from 
 the time of payment, prescribed in such requisitions. 
 
 Fifthly. That Congress erect no company with exclusive ad- 
 vantages of commerce. 
 
 Sixthly. That no person shall be tried for any crime by which 
 he may incur an infamous punishment, or loss of life, until he be 
 first indicted by a grand jury, except in such cases as may arise in 
 the government and regulation of the land and naval forces. 
 
 Seventhly. The Supreme Judicial Federal Court shall have no 
 jurisdiction of causes between citizens of different states, unless the 
 matter in dispute, whether it concerns the realty or personalty, be 
 of the value of three thousand dollars at the least — nor shall the 
 federal judicial powers extend to any action between citizens of 
 different states, where the matter in dispute, whether it ccncerns 
 
 632 
 
1788] AMENDMEJ^TS OF MASS., S C, AND JV. H. 633 
 
 the realty or personalty, is not of the value of fifteen hundred 
 dollars at the least. 
 
 Eighthly. In civil actions between citizens of different states, 
 every issue of fact arising in actions at common law, shall be tried 
 by a jury, it the paities or either of them request it. 
 
 Ninthly. Congress shall at no' time consent that any person 
 holding an ofifice of trust or profit under the United States shall 
 accept of a title of nobility, or any other title or office, from any 
 king, prince, or foreign state. 
 
 AMENDMENTS PROPOSED BY THE CONVENTION OF 
 SOUTH CAROLINA, 1788. 
 
 And whereas it is essential to the preservation of the rights 
 reserved to the several states, and the freedom of the people, under 
 the operations of a general government, that the right of prescrib- 
 ing the manner, time, and places of holding the elections to the 
 federal legislature, should be forever inseparably annexed to the 
 sovereignty of the several states; This convention doth declare, 
 that the same ought to remain to all posterity, a perpetual and 
 fundamental right in the local, exclusive of the interference of the 
 general government, except in cases where the legislatures of the 
 states shall refuse or neglect to perform and fulfill the same, accord- 
 ing to the tenor of the said constitution. 
 
 This convention doth also declare. That no section or paragraph 
 of the said constitution, warrants a construction that the states do 
 not retain every power not expressly relinquished by them, and 
 vested in the general government of the union. 
 
 Resolved, That the general government of the United States 
 ought never to impose direct taxes, but where the moneys arising 
 from the duties, imposts and excise, are insufficient for the public 
 exigencies, nor then until Congress shall have made a requisition 
 upon the states to assess, levy, and pay their respective proportions 
 of such requisitions ; and in case any state shall neglect or refuse 
 to pay its proportion, pursuant to such requisition, then Congress 
 may assess and levy such state's proportion, together with interest 
 thereon, at the rate of six per centum per annum, from the time of 
 payment prescribed by such requisition. 
 
 Resolved, That the third section of the sixth article ought to be 
 amended, by inserting the word " other," between the words " no " 
 and " religious." 
 
 Resolved, That it be a standing instruction to all such delegates 
 as may hereafter be elected to represent this state in the general 
 government, to exert their utmost abilities and influence, to effect 
 an alteration of the constitution, conformably to the aforegoing 
 resolutions. 
 
 AMENDMENTS PROPOSED BY THE CONVENTION OF 
 NEW HAMPSHIRE, I788. 
 
 The convention do therefore recommend, that the following al- 
 terations and provisions be introduced into the said constitution. 
 
634 AMENDMENTS OF N. H. [1788 
 
 First. That it be explicitly declared that all powers not expressly 
 and particularly delegated by the aforesaid constitution, are reserved 
 to the several states to be by them exercised. 
 
 Secondly. That there shall be one representative to every thirty 
 thousand persons according to the census mentioned in the consti- 
 tution, until the whole number of representatives amount to two 
 hundred. 
 
 Thirdly. That Congress do not exercise the powers vested in 
 them by the fourth section, of the first article, but in cases when a 
 state shall neglect or refuse to make the regulations therein men- 
 tioned, or shall make regulations subversive of the rights of the 
 people to a free and equal representation in Congress — Nor shall 
 Congress in any case make regulations contraiy to a free and equal 
 representation. 
 
 Fourthly. That Congress do not lay direct taxes but when the 
 money arising from impost, excise, and their other resources, are 
 insufficient for the public exigencies, nor then, until Congress 
 shall have first made a requisition upon the states, to assess, levy 
 and pay their respective proportions of such requisition, agreeably 
 to the census fixed in the said constitution, in such way and man- 
 ner as the legislature of the state shall think best, and in such case 
 if any state shall neglect, then Congress may assess and levy such 
 state's proportion, together with the interest thereon at the rate of 
 six per cent, per annum, from the time of payment, prescribed in 
 such requisition. 
 
 Fifthly. That Congress shall erect no company of merchants 
 with exclusive advantages of commerce. 
 
 Sixthly. That no person shall be tried for any crime by which 
 he may incur an infamous punishment, or loss of life, until he first 
 be indicted by a grand jury, except in such cases as may arise in 
 the government and regulation of the land and naval forces. 
 
 Seventhly. All common law cases between citizens of different 
 states, shall be commenced in the common law courts of the re- 
 spective states, and no appeal shall be allowed to the federal court, 
 in such cases, unless the sum or value of the thing in controversy 
 amount to three thousand dollars. 
 
 Eighthly. In civil actions between citizens of different states, 
 every issue of fact arising in actions at common law, shall be tried 
 by jury, if the parties or either of them request it. 
 
 Ninthly. Congress shall at no time consent that any person 
 holding an office of trust or profit under the United States, shall 
 accept any title of nobility, or any other title or office, from any 
 king, or foreign state. 
 
 Tenth. That no standing army shall be kept up in time of 
 peace, unless with the consent of three-fourths of the members of 
 each branch of Congress, nor shall soldiers in time of peace be 
 quartered upon private houses, without the consent of the owners. 
 
 Eleventh. Congress shall make no laws touching religion, or to 
 infringe the rights of conscience. 
 
 Twelfth. Congress shall never disarm any citizen, unless such 
 as are or have been in actual rebellion. 
 
1788] AMENDMENTS OF VIRGINIA. 635 
 
 AMENDMENTS PROPOSED BY THE CONVENTION OF 
 . VIRGINIA, 1788. 
 
 Subsequent amendments agreed to in convention, as necessary 
 to the proposed constitution of government for the United States, 
 recommended to the consideration of the Congress which shall 
 first assemble under the said constitution, to be acted upon ac- 
 cording to the mode prescribed in the fifth article thereof— 
 videlicet : 
 
 That there be a declaration or bill of rights, asserting and secur- 
 ing from encroachment, the essential and unalienable rights of the 
 people, in some such manner as the following : 
 
 First. That there are certain natural rights, of which men, when 
 they form a social compact, cannot depriveor divest their posterity, 
 among which are the enjoyment of life and liberty, with the means 
 of acquiring, possessing, and protecting property, and pursuing and 
 obtaining happiness and safety. Second. That all power is natu- 
 rally invested in, and consequently derived from the people ; 
 that magistrates, therefore, are their trustees and agents, at all 
 times amenable to them. Third. That government ought to be 
 instituted for the common benefit, protection and security of the 
 people ; and that the doctrine of non-resistance against arbitrary 
 powerand oppression, is absurd, slavish, and destructive of the good 
 and happiness of mankind. Fourth. That no man or set of men 
 are entitled to separate or exclusive public emoluments or privileges 
 from the community, but in consideration of public services, which 
 not being descendible, neither ought the offices of magistrate, leg- 
 islator, or judge, or any other public office to be hereditary. Fifth. 
 That the legislative, executive and judicial powers of government 
 should be separate and distinct, and that the members of the two 
 first may be restrained from oppression by feeling and participat- 
 ing the public burdens, they should, at fixed periods, be reduced 
 to a private station, return into the mass of the people, and the 
 vacancies be supplied by certain and regular elections ; in which 
 all or any part of the former members to be eligible or ineligible, 
 as the rules of the constitution of government, and the laws shall 
 direct. Sixth. That the elections of representatives in the legis- 
 lature ought to be free and frequent, and all men having sufficient 
 evidence of permanent common interest, with an attachment to 
 the community, ought to have the right of suffrage : and no aid, 
 charge, tax or fee can be set, rated or levied upon the people with- 
 out their own consent, or that of their representatives so elected, 
 nor can they be bound by any law to which they have not in like 
 manner assented for the public good. Seventh. That all power of 
 suspending laws, or the execution of laws, by any authority, with- 
 out the consent of the representatives of the people in the legisla- 
 ture, is injurious to their rights, and ought not to be exercised. 
 Eighth. That in all capital and criminal prosecutions, a man hath 
 a right to demand the cause and nature of his accusation, to be 
 confronted with the accusers and witnesses, to call for evidence, 
 and be allowed counsel in his favor, and to a fair and speedy trial 
 
636 AMENDMENTS OF VIRGINIA. [1788 
 
 by an impartial jury of his vicinage, without whose unanimous 
 consent he cannot be found guilty, (except in the government of 
 the land and naval forces;) nor can he be compelled to give" evi- 
 dence against himself. Ninth. That no freeman ought to be taken, 
 imprisoned, or disseized of his freehold, liberties, privileges, or 
 franchises, or outlawed, or exiled, or in any manner destroyed or 
 deprived of his life, liberty or property, but by the law of the 
 land. Tenth. That every freeman restrained of his liberty, is en- 
 titled to a remedy, to inquire into the lawfulness thereof, and to 
 remove the same, if unlawful, and that such remedy ought not to 
 be denied nor delayed. Eleventh. That in controversies respect- 
 ing property, and in suits between man and man, the ancient trial 
 by jury is one of the greatest securities to the rights of the people, 
 and ought to remain sacred and inviolable. Twelfth. That every 
 freeman ought to find a certain remedy by recourse to the laws for 
 all injuries and wrongs he may receive in his person, property or 
 character. He ought to obtain right and justice freely without 
 sale, completely and without denial, promptly and without delay, 
 and that all establishments or regulations contravening these rights, 
 are oppressive and unjust. Thirteenth. That excessive bail ought 
 not to be required, nor excessive fines imposed, nor cruel and un- 
 usual punishments inflicted. Fourteenth. That eveiy freeman has 
 a right to be secure from all unreasonable searches and seizures 
 of his person, his papers and property ; all warrants, therefore, 
 to search suspected places, or seize any freeman, his papers or 
 property, without information on oath (or affirmation of a per- 
 son religiously scrupulous of taking an oath) of legal and sufficient 
 cause, are grievous and oppressive ; and all general warrants to 
 search suspected places, or to apprehend any suspected person, 
 without specially naming or describing the place or person, are 
 dangerous and ought not to be granted. Fifteenth. That the 
 people have a right peaceably to assemble together to consult for 
 the common good, or to instruct their representatives ; and that 
 every freeman has a right to petition or apply to the legislature for 
 redress of grievances. Sixteenth. That the people have a right to 
 freedom of speech, and of writing and publishing their sentiments; 
 that the freedom of the press is one of the greatest bulwarks of 
 liberty, and ought not to be violated. Seventeenth. That the peo- 
 ple have a right to keep and bear arms ; that a well regulated mili- 
 tia, composed of the body of the people, trained to arms, is the 
 proper, natural and safe defense of a free state. That standing 
 armies in time of peace are dangerous to liberty, and therefore 
 ought to be avoided, as far as the circumstances and protection of 
 the community will admit ; and that in all cases the military should 
 be under strict subordination to and governed by the civil power. 
 Eighteenth. That no soldier in time of peace ought to be quartered 
 in any house without the consent of the owner, and in time of war 
 in such manner only as the law directs. Nineteenth. That any per- 
 son religiously scrupulous of bearing arms, ought to be exempted, 
 upon payment of an equivalent to employ another to bear arms in 
 his stead. Twentieth. That religion, or the duty which we owe 
 
1788] AMENDMENTS OF VIRGINIA. 637 
 
 to our Creator, and the manner of discharging it, can be directed 
 only by reason and conviction, not by force or violence, and there- 
 fore ail men have an equal, natural, and unalienable right to the 
 free exercise of religion, according to the dictates of conscience, 
 and that no particular religious sect or society ought to be favored 
 or established by law in preference to others. 
 
 AMENDMENTS TO THE BODY OF THE CONSTITUTION. 
 
 First. That each state in the union shall respectively retain 
 every power, jurisdiction, and right, which is not by this consti- 
 tution delegated to the Congress of the United States, or to the 
 departments of tlie federal government. Second. That there 
 shall be one representative for every thirty thousand according to 
 the enumeration or census mentioned in the constitution, until the 
 whole number of representatives amounts to two hundred ; after 
 which that number shall be continued or increased as Congress 
 shall direct, upon the principles fixed in the constitution by 
 apportioning the representatives of each state to some greater 
 number of people from time to time as population increases. 
 Third. When the Congress shall lay direct taxes or excises, they 
 shall immediately inform the executive power of each state, of 
 the quota of such state, according to the census herein directed, 
 which is proposed to be thereby raised ; and if the legislature of 
 any state shall pass a law which shall be effectual for raising such 
 quota at the time required by Congress, the taxes and excises laid 
 by Congress shall not be collected in such state. Fourth. That the 
 members of the Senate and House of Representatives shall be in- 
 eligible to, and incapable of holding any civil office under the author- 
 ity of the United States, during the time for which they shall respec- 
 tively be elected. Fifth. That the journals of the proceedings of 
 the Senate and House of Representatives shall be published at least 
 once in every year, except such parts thereof relating to treaties, 
 alliances, or military operations, as in their judgment require 
 secrecy. Sixth. That a regular statement and account of the 
 receipts and expenditures of public money shall be published at 
 least once a year. Seventh. That no commercial treaty shall 
 be ratified without the concurrence of two-thirds of the whole 
 number of the members of the Senate ; and no treaty, ceding, 
 contracting, restraining or suspending the territorial rights or 
 claims of the United States, or any of them, or their, or any of their 
 rights or claims to fishing in the American seas, or navigating the 
 American rivers, shall be made, but in cases of the most urgent and 
 extreme necessity, nor shall any such treaty be ratified without the 
 concurrence of three-fourths of the whole number of the members 
 of both houses respectively. Eighth. That no navigation law, or 
 law regulating commerce, shall be passed without the consent of 
 two-thirds of the members present in both houses. Ninth. That 
 no standing army or regular troops shall be raised or kept up in 
 time of peace, without the consent of two-thirds of the members 
 present in both houses. Tenth. That no soldier shall be enlisted 
 
638 AMENDMENTS OF VIRGINIA. [1788 
 
 for any longer term than four years, except in time of war, and 
 then for no longer term than the continuance of the war. 
 Eleventh. That each state respectively, shall have the power to 
 provide for organizing, arming, and disciplining its own militia, 
 whensoever Congress shall omit or neglect to provide for the same. 
 That the militia shall not be subject to martial law, except when in 
 actual service in time of war, invasion, or rebellion ; and when not 
 in the actual service of the United States, shall be subject only to 
 such fines, penalties, and punishments as shall be directed or 
 inflicted by the laws of its own state. Twelfth. That the 
 exclusive power of legislation given to Congress over the federal 
 town, and its adjacent district, and other places purchased or to be 
 purchased by Congress of any of the states, shall extend only to 
 such regulations as respect the police and good government thereof. 
 Thirteenth. That no person shall be capable of being President 
 of the United States for more than eight years in any term of 
 sixteen years. Fourteenth. That the judicial power of the United 
 States shall be vested in one Supreme Court, and in such courts of 
 admiralty as Congress may from time to time ordain and establish 
 in any of the different states. The judicial power shall extend to 
 all cases in law and equity arising under treaties made, or which 
 shall be made, under the authority of the United States ; to 
 all cases affecting ambassadors, other foreign 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 ; and between parties 
 claiming lands under the grants of different states. In all cases 
 affecting ambassadors, other foreign ministers and consuls, and 
 those in which a state shall be a party, the Supreme Court shall 
 have original jurisdiction ; in all other cases before mentioned, the 
 Supreme Court shall have appellate jurisdiction as to matters of law 
 only; except in cases of equity, and of admiralty and maritime 
 jurisdiction, in which the Supreme Court shall have appellate 
 jurisdiction, both as to law and fact, with such exceptions, and 
 under such regulations as the Congress shall make. But the 
 judicial power of the United States shall extend to no case where 
 the cause of action shall have originated before the ratification of 
 this constitution ; except in disputes between states about their 
 territory, disputes between persons claiming lands under the 
 grants of different states, and suits for debts due to the United 
 States. Fifteenth. That in criminal prosecutions no man shall 
 be restrained in the exercise of the usual and accustomed right of 
 challenging or excepting to the jury. Sixteenth. That Congress 
 shall not alter, modify, or interfere in the times, places, or manner 
 of holding elections for senators and representatives, or either of 
 them, except when the legislature of any state shall neglect, refuse, 
 or be disabled by invasion or rebellion, to prescribe the same. 
 Seventeenth. That those clauses which declare that Congress shall 
 not exercise certain powers be not interpreted in any manner what- 
 soever to extend the powers of Congress. But that they may be 
 construed either as making exceptions to the specified powers 
 
1788] AMErrDMENTS OF VIRGINIA AND N. Y. 639 
 
 where this shall be the case, or otherwise as inserted merely for 
 greater caution. Eighteenth. That the laws ascertaining the 
 compensation to senators and representatives for their services, be 
 postponed in their operation, until after the election of represent- 
 atives immediately succeeding the passing thereof ; that excepted, 
 which shall first be passed on the subject. Nineteenth. That 
 some tribunal other than the Senate be provided for trying impeach- 
 ments of senators. Twentieth. That the salary of a judge shall not 
 be increased or diminished during his continuance in office, other- 
 wise than by general regulations of salary which may take place on 
 a revision of the subject at stated periods of not less than seven 
 years, to commence from the time such salaries shall be first 
 ascertained by Congress. And the convention do, in the name 
 and behalf of the people of this Commonwealth, enjoin it upon 
 their representatives in Congress, to exert all their influence, and 
 use all reasonable and legal methods to obtain a ratification of the 
 foregoing alterations and provisions, in the manner provided by the 
 fifth article of the said constitution ; and in all congressional laws 
 to be passed in the meantime, to conform to the spirit of those 
 amendments as far as the said constitution will admit. 
 
 AMENDMENTS PROPOSED BY THE CONVENTION OF NEW 
 YORK, 1788. 
 
 We, the delegates of the people of the State of New York, duly 
 elected and met in convention, having maturely considered the 
 constitution for the United States of America, agreed to on the 
 seventeenth day of September, in the year one thousand seven 
 hundred and eighty-seven, by the convention then assembled at 
 Philadelphia, in the commonwealth of Pennsylvania, (a copy 
 whereof precedes these presents) and having also seriously and 
 dehberately considered the present situation of the United States, 
 Do declare and make known, 
 
 That all power is originally vested in and consequently derived 
 from the people, and that government is instituted by them for 
 their common interest, protection and security. 
 
 That the enjoyment of life, liberty and the pursuit of happiness, 
 are essential rights which every government ought to respect and 
 preserve. 
 
 That the powers of government may be reassumed by the 
 people, whensoever it shall become necessary to their happiness ; 
 that every power, jurisdiction and right, which is not by the said 
 constitution clearly delegated to the Congress of the United 
 States, or the departments of the government thereof, remains to 
 the people of the several states, or to their respective state govern- 
 ments, to whom they may have granted the same ; and that those 
 clauses in the said constitution, which declare, that Congress shall 
 not have or exercise certain powers, do not imply that Congress 
 is entitled to any powers not given by the said constitution ; but 
 such clauses are to be construed either as exceptions to certain 
 specified powers, or as inserted merely for greater caution, 
 
640 AMENDMEMTS OE NEW YORK. [1788 
 
 That the people have an equal, natural and unalienable right, 
 freely and peaceably to exercise their religion, according to the 
 dictates of conscience ; and that no religious sect or society ought 
 to be favored or established by law in preference of others. 
 
 That the people have a right to keep and bear arms; that a 
 well regulated militia, including the body of the people capable of 
 bearing arms, is the proper, natural, and safe defense of a free 
 state. 
 
 That the militia should not be subject to martial law, except in 
 time of war, rebellion or insurrection. 
 
 That standing armies in time of peace are dangerous to liberty, 
 and ought not to be kept up, except in cases of necessity, and that 
 at all times the military should be under strict subordination to the 
 civil power. 
 
 That in time of peace no soldier ought to be quartered in any 
 house without the consent of the owner; and in time of war, only 
 by the civil magistrate, in such manner as the laws may direct. 
 
 That no person ought to be taken, imprisoned or disseized of 
 his freehold, or be exiled or deprived of his privileges, franchises, 
 life, liberty or property, but by due process of law. 
 
 That no person ought to be put twice in jeopardy of life or limb 
 for one and the same offense, nor, unless in case of impeachment, 
 be punished more than once for the-same offense. 
 
 That every person restrained of his liberty is entitled to an 
 inquiry into the lawfulness of such restraint, and to a removal 
 thereof if unlawful, and that such inquiiy and removal ought not 
 to be denied or delayed, except when, on account of public danger, 
 the Congress shall suspend the privilege of the writ of Habeas 
 Corpus. 
 
 That excessive bail ought not to be required ; nor excessive fines 
 imposed ; nor cruel or unusual punishments inflicted. 
 
 That (except in the government of the land and naval forces, and 
 of the militia when in actual service, and in cases of impeachment) 
 a presentment or indictment by a grand jury ought to be observed 
 as a necessary preliminary to the trial of all crimes cognizable by 
 the judiciary of the United States ; and such trial should be speedy, 
 public, and by an impartial jury of the county where the crime 
 was committed ; and that no person can be found guilty without 
 the unanimous consent of such jury. But in cases of crimes not 
 committed within any county of any of the United States, and 
 in cases of crimes committed within any county in which a general 
 insurrection may prevail, or which may be in the possession of a 
 foreign enemy, the inquiry and trial may be in such county as the 
 Congress shall by law direct ; which county in the two cases last 
 mentioned, should be as near as conveniently may be to that 
 county in which the crime may have been committed. And that 
 in all criminal prosecutions, the accused ought to be informed of 
 the cause and nature of his accusation, to be confronted with his 
 accusers and the witnesses against him, to have the means of pro- 
 ducing the witnesses, and the assistance of council for his defense, 
 and should not be compelled to give evidence against himself. 
 
1788] AMENDMENTS OF NEW YORK. 641 
 
 That the trial by jury in the extent that it obtains by the com- 
 mon law of England, is one of the greatest securities to'^the rights 
 of a free people, and ought to remain inviolate. 
 
 That every freeman has a right to be secure from all unreason- 
 able searches and seizures of his person, his papers or his property ; 
 and therefore, that all warrants to search suspected places, or seize 
 any freeman, his papers or property, without information upon 
 oath or affirmation of sufficient cause, are grievous and oppressive ; 
 and that all general warrants, (or such in which the place or person 
 suspected are not particularly designated) are dangerous and ought 
 not to be granted. 
 
 That the people have a right peaceably to assemble together to 
 consult for their common good, or to instruct their representatives, 
 and that every person has a right to petition or apply to the legis- 
 lature for redress of grievances. 
 
 That the freedom of the press ought not to be violated or 
 restrained. 
 
 That there should be once in four years, an election of the 
 president and vice president, so that no officer who may be ap- 
 pointed by the Congress to act as President, in case of the removal, 
 death, resignation or inability of the president and vice president, 
 can in any case continue to act beyond the termination of the 
 period for which the last president and vice president were elected. 
 
 That nothing contained in the said constitution, is to be con- 
 strued to prevent the legislature of any state from passing laws in 
 its discretion, from time to time, to divide such state into conven- 
 ient districts, and to apportion its representatives to, and amongst 
 such districts. 
 
 That the prohibition contained in the said constitution, against 
 ex post facto Ijws, extends only to laws concerning crimes. 
 
 That all appeals in causes, determinable according to the course 
 of the common law, ought to be by writ of error, and not other- 
 wise. 
 
 That the judicial power of the United States, in cases in which 
 a state may be a party, does not extend to criminal prosecutions, 
 or to authorize any suit by any person against a state. 
 
 That the judicial power of the United States, as to controversies 
 between citizens of the same state, claiming lands under grants of 
 different states, is not to be construed to extend to any other con- 
 troversies between them, except those which relate to such lands, 
 so claimed, under grants of different states. 
 
 That the jurisdiction of the Supreme Court of the United States, 
 or of any other court to be instituted by the Congress, is not in 
 any case to be increased, enlarged, or extended, by any fiction, 
 collusion or mere suggestion ; and that no treaty is to be construed, 
 so to operate, as to alter the constitution of any state. 
 
 Under these impressions, and declaring that the rights aforesaid 
 cannot be abridged or violated, and that the explanations afore- 
 said, are consistent with the said constitution, and in confidence 
 that the amendments which shall have been proposed to the said 
 constitution, will receive an early and mature consideration : We, 
 
642 AMENDMENTS OF NEW YORK. [1788 
 
 the said delegates, in the name and in the behalf of the people 
 of the State of New York, Do, by these presents, assent to and Rat- 
 ify the said constitution. In full confidence, nevertheless, that until 
 a convention shall be called and convened for proposing amend- 
 ments to the said constitution, the militia of this state will not be 
 continued in service out of this state for a longer term than six 
 weeks, without the consent of the legislature thereof; that the 
 Congress will not make or alter any regulation in this state, 
 respecting the times, places, and manner of holding elections for 
 senators or representatives, unless the legislature of this state shall 
 neglect or refuse to make laws or regulations for the purpose, or 
 from any circumstance be incapable of making the same ; and that 
 in those cases such power will only be exercised until the legisla^ 
 ture of this state shall make provision in the premises ; that no 
 excise will be imposed on any article of the growth, production or 
 manufacture of the United States, or any of them, within this 
 state, ardent spirits excepted ; and that the Congress will not lay 
 direct taxes within this state, but when the moneys arising from the 
 impost and excise shall be insufficient for the public exigencies, 
 nor then, until Congress shall first have made a requisition upon 
 this state to assess, levy and pay the amount of such requisition, 
 made agreeably to the census fixed in the said constitution, in such 
 way and manner as the legislature of this state shall judge best ; 
 but that in such case, if the state shall neglect or refuse to pay its 
 proportion pursuant to such requisition, then the Congress may 
 assess and levy this state's proportion, together with interest at 
 the rate of six per centum per annum, from the time at which the 
 same was required to be paid. 
 
 . . . And the convention do, in the name and behalf of the people 
 of the State of New York, enjoin it upon their representatives in the 
 Congress, to exert all their influence and use all reasonable means 
 to obtain a ratification of the following amendments to the said 
 constitution in the manner prescribed therein ; and in all laws to 
 be passed by the Congress in the mean time, to conform to the 
 spirit of the said amendments as far as the constitution will admit. 
 
 That there shall be one representative for every thirty thousand 
 inhabitants, according to the enumeration or census mentioned in 
 the constitution, until the whole number of representatives amounts 
 to two hundred ; after which that number shall be continued or 
 increased, but not diminished, as Congress shall direct, and accord- 
 ing to such ratio as the Congress shall fix, in conformity to the 
 rule prescribed for the apportionment of representatives and 
 direct taxes. 
 
 That the Congress do not impose any excise on any article 
 (ardent spirits excepted) of the growth, production or manufacture 
 of the United States, or any of them. 
 
 That the Congress do not lay direct taxes, but when the moneys 
 arising from the impost and excise, shall be insufficient for the 
 public exigencies, nor then, until Congress shall first have made 
 a requisition upon the states, to assess, levy and pay their respec- 
 tive proportion of such requisition, agreeably to the census fixed 
 
1788] AMENDMENTS OF NEW VORK. 643 
 
 in the said constitution, in such way and manner, as the legislature 
 of the respective states shall judge best ; — and in such case, if any 
 state shall neglect or refuse to pay its proportion, pursuant to such 
 requisition, then Congress may assess and levy such state's pro- 
 portion, together with interest at the rate of six per centum per 
 annum, from the time of payment, prescribed in such requisition. 
 
 That the Congress shall not make or alter any regulation, in any 
 state, respecting the times, places and manner of holding elections 
 for senators or representatives, unless the legislature of such state 
 shall neglect or refuse to make laws or regulations for the purpose, 
 or from any circumstance be incapable of making the same, and 
 then only, until the legislature of such state shall make provision 
 in the premises ; provided that Congress may prescribe the time 
 for the election of representatives. 
 
 That no persons, except natural born citizens, or such as were 
 citizens on or before the 4th day of July, 1776, or such as held 
 commissions under the United States during the war, and have at 
 any time, since the 4th day of July, 1776, become citizens of one or 
 other of the United States, and who shall be freeholders, shall be 
 eligible to the places of president, vice president, or members of 
 either house of the Congress of the United States. 
 
 That the Congress do not grant monopolies, or erect any com- 
 pany, with exclusive advantages of commerce. 
 
 That no standing army or regular troops shall be raised, or kept 
 up in time of peace, without the consent of two-thirds of the sena- 
 tors and representatives present in each house. 
 
 That no money be borrowed on the credit of the United States 
 without the assent of two-thirds of the senators and representatives 
 present in each house. 
 
 That the Congress shall not declare war without the concur- 
 rence of two-thirds of the senators and representatives present in 
 each house. 
 
 That the privilege of the Habeas Corpus shall not by any law be 
 suspended for a longer term than six months, or until twenty days 
 after the meeting of the Congress next following the passing the 
 act for such suspension. 
 
 That the right of the Congress to exercise exclusive legislation 
 over such district, not exceeding ten miles square, as may by ces- 
 sion of a particular state, and the acceptance of Congress, become 
 the seat of the government of the United States, shall not be so 
 exercised as to exempt the inhabitants of such district from paying 
 the like taxes, imposts, duties and excises, as shall be imposed on 
 the other inhabitants of the state in which such district may be ; 
 and that no person shall be privileged within the said district from 
 arrest for crimes committed, or debts contracted out of the said 
 district. 
 
 That the right of exclusive legislation with respect to such 
 places as may be purchased for the erection of forts, magazines, 
 arsenals, dock-yards, and other needful buildings, shall not author- 
 ize the Congress to make any law to prevent the laws of the states 
 respectively in which they may be, from extending to such places 
 
644 AMENDMENTS OF NEW YORK. [1788 
 
 in all civil and criminal matters, except as to such persons as shall 
 be in the service of the United States ; nor to them with respect to 
 crimes committed without such places. 
 
 That the compensation for the senators and representatives be 
 ascertained by standing laws ; and that no alteration of the exist- 
 ing rate of compensation shall operate for the benefit of the repre- 
 sentatives, until after a subsequent election shall have been had. 
 
 That the journals of the Congress shall be published at least 
 once a year, with the exception of such parts relating to treaties or 
 military operations, as in the judgment of either house shall re- 
 quire secrecy ; and that both houses of Congress shall always keep 
 their doors open during their sessions, unless the business may in 
 their opinion require secrecy. That the yeas and nays shall be 
 entered on the journals whenever two members in either house 
 may require it. 
 
 That no capitation tax shall ever be laid by the Congress. 
 
 That no person shall be eligible as a senator for more than six 
 years in any term of twelve years ; and that the legislatures of the 
 respective states may recall their senators or either of them, and 
 elect others in their stead, to serve the remainder of the time for 
 which the senators so recalled were appointed. 
 
 That no senator or representative shall, during the time for 
 which he was elected, be appointed to any office under the authority 
 of the United States. 
 
 That the authority given to the executives of the states to fill the 
 vacancies of senators be abolished, and that such vacancies be filled 
 by the respective legislatures. 
 
 That the power of Congress to pass uniform laws concerning 
 bankruptcy, shall only extend to merchants and other traders ; and 
 that the states respectively may pass laws for the relief of other 
 insolvent debtors. 
 
 That no person shall be eligible to the office of president of the 
 United States, a third time. 
 
 That the executive shall not grant pardons for treason, unless 
 with the consent of the Congress ; but may, at his discretion, grant 
 reprieves to persons convicted of treason, until their cases can be 
 laid before the Congress. 
 
 That the president, or person exercising his powers for the time 
 being, shall not command an army in the field in person, without 
 the previous desire of the Congress. 
 
 That all letters patent, commissions, pardons,writs and processes 
 of the United States, shall run in the nsLvne ol /he people cf the 
 United States, and be tested in the name of the president of the 
 United States, or the person exercising his powers for the time 
 being, or the first judge of the court out of which the same shall 
 issue, as the case may be. 
 
 That the Congress shall not constitute, ordain, or establish any 
 tribunals or inferior courts, with any other than appellate jurisdic- 
 tion, except such as may be necessaiy for the trial of causes of 
 admiralty, and maritime jurisdiction, and for the trial of piracies 
 and felonies committed on the high seas ; and in all other cases, to 
 
ITSS] AMEl^DMENTS OF NEW YORK. 645 
 
 which the judicial power of the United States extends, and in 
 which the supreme court of the United States has not original 
 jurisdiction, the causes shall be heard, tried, and determined, in 
 some one of the state courts, with the right of appeal to the supreme 
 court of the United States, or other proper tribunal, to be estab- 
 lished for that purpose, by the Congress, with such exceptions, and 
 under such regulations as the Congress shall make. 
 
 That the court for the trial of impeachments shall consist of the 
 senate, the judges of the supreme court of the United States, and 
 the first or senior judge, for the time being, of the highest court of 
 general and ordinary common law jurisdiction in each state ; that 
 the Congress shall, by standing laws, designate the courts in the 
 respective states answering this description, and in states having 
 no courts exactly answering this description, shall designate some 
 other court, preferring such, if any there be, whose judge or judges 
 may hold their places during good behavior ; provided that no more 
 than one judge, other than judges of the supreme court of the 
 United States, shall come from one state. 
 
 That the Congress be authorized to pass laws for compensating 
 the judges for such services, and for compelling their attendance; 
 and that a majority at least of the said judges shall be requisite to 
 constitute the said court. That no person impeached shall sit as 
 a member thereof — that each member shall, previous to the enter- 
 ing upon any trial, take an oath or affirmation, honestly and im- 
 partially to hear and determine the cause ; and that a majority of 
 the members present shall be necessary to a conviction. 
 
 That persons aggrieved by any judgment, sentence or decree of 
 the supreme court of the United States in any cause in which that 
 court has original jurisdiction, with such exceptions and under 
 such regulations as the Congress shall make concerning the same, 
 shall upon application, have a commission, to be issued by the 
 president of the United States, to such men learned in the law as 
 he shall nominate, and by and with the advice and consent of the 
 senate appoint not less than seven, authorizing such commissioners, 
 or any seven or more of them, to correct the errors in such judg- 
 ment, or to review such sentence, and decree as the case may be, 
 and to do justice to the parties in the premises. 
 
 That no judge of the supreme court of the United States shall 
 hold any other office under the United States, or any of them. 
 
 That the judicial power of the United States shall extend to no 
 controversies respecting land, unless it relate to claims of territory 
 or jurisdiction between states, or to claims of land between indi- 
 viduals, or between states and individuals under the grants of 
 different states. 
 
 That the militia of any state shall not be compelled to serve with- 
 out the limits of the state for a longer term than six weeks, with- 
 out the consent of the legislature thereof. 
 
 That the words without the co7isent of the Congress, in the 
 seventh clause of the ninth section of the first article of the con- 
 stitution be expunged. 
 
 That the senators and representatives, and all executive and 
 
646 AMENDMENTS OF N. Y. AND N. C. [1788 
 
 judicial officers of the United States, shall be bound by oath or 
 affirmation not to infringe or violate the constitutions or rights of 
 the respective states. 
 
 That the legislature of the respective states may make provision 
 by law^, that the electors of tlie election districts, to be by tliem 
 appointed, shall choose a citizen of the United States, who shall 
 have been an inhabitant of such district for the term of one year 
 immediately preceding the time of his election, for one of the rep- 
 resentatives of such state. 
 
 AMENDMENTS PROPOSED BY THE CONVENTION OF NORTH 
 CAROLINA, 1788. 
 
 Resolved, That a declaration of rights, asserting and securing 
 from encroachment the great principles of civil and religious liberty, 
 and the unalienable rights of the people, together with amend- 
 ments to the most ambiguous and exceptionable parts of the said 
 constitution of government, ought to be laid before Congress, and 
 the convention of the states that shall or may be called for the 
 purpose of amending the said constitution, for their consideration, 
 previous to the ratification of the constitution aforesaid, on the 
 part of the state of North Carolina. 
 
 Declaration of Rights. 
 
 1st. That there are certain natural rights of which men, when 
 they form a social compact, cannot deprive or divest their posterity, 
 among which are the enjoyment of life and liberty, vvith the means 
 of acquiring, possessing, and protecting property, and pursuing and 
 obtaining happiness and safety. 
 
 2d. That all power is naturally vested in, and consequently de- 
 rived from the people; that magistrates therefore are their trustees 
 and agents, and at all times amenable to them. 
 
 3d. That government ought to be instituted for the common 
 benefit, protection, and security of the people; and that the doc- 
 trine of non-resistance against arbitrary power and oppression is 
 absurd, slavish, and destructive to the good and happiness of 
 mankind. 
 
 4th. That no man or set of men, are entitled to exclusive or 
 separate public emoluments, or privileges from the community, 
 but in consideration of the public services ; which not being de- 
 scendible, neither ought the offices of magistrate, legislator, or 
 judge, or any other public office, to be hereditary. 
 
 5th. That the legislative, executive and judiciary powers of 
 government should be separate and distinct, and that the members 
 of the two first may be restrained from oppression, by feeling and 
 participating the public burdens, they should at fixed periods be 
 reduced to a private station, return into the mass of the people ; 
 and the vacancies be supplied by certain and regular elections, in 
 which all or any part of the former members to be eligible or in- 
 eligible, as the rules of the constitution of government, and the 
 laws shall direct. 
 
1788] AMENDMENTS OF NORTH CAROLINA. 647 
 
 6th. That elections of representatives in the legislature ought 
 to be free and frequent, and all men having sufficient evidence 
 of permanent common interest with, and attachment to the com- 
 munity, ought to have the right of suffrage ; and no aid, charge, 
 tax or fee, can be set, rated or levied upon the people without 
 their own consent, or that of their representatives so elected, nor 
 can they be bound by any law, to which they have not in like 
 manner assented for the pubUc good. 
 
 7th. That all power of suspending laws, or the execution of 
 laws, by any authority, without the consent of the representatives 
 of the people in the legislature, is injurious to their rights, and 
 ought not to be exercised. 
 
 8th. That in all capital and criminal prosecutions a man hath 
 a right to demand the cause and nature of his accusation, to be 
 confronted with the accusers and witnesses, to call for evidence, 
 and be allowed counsel in his favor, and a fair and speedy trial 
 by an impartial jury of his vicinage, without whose unanimous 
 consent he cannot be found guilty, (except in the government of 
 the land and naval forces ;) nor can he be compelled to give evi- 
 dence against himself. 
 
 9th. That no freeman ought to be taken, imprisoned, or dis- 
 seized of his freehold, liberties, privileges or franchises, or outlawed 
 or exiled, or in any manner destroyed or deprived of his life, 
 liberty, or property, but by the law of the land. 
 
 loth. That every freeman restrained of his liberty, is entitled to 
 a remedy to inquire into the lawfulness thereof, and to remove 
 the same, if unlawful, and that such remedy ought not to be denied 
 nor delayed. 
 
 nth. That in controversies respecting property, and in suits 
 between man and man, the ancient trial by jury is one of the 
 greatest securities to the rights of the people, and ought to remain 
 sacred and inviolable. 
 
 1 2th. That every freeman ought to find a certain remedy by 
 recourse to the laws for all injuries and wrongs he may receive in 
 person, property or character. He ought to obtain right and 
 justice freely without sale, completely and without denial, promptly 
 and without delay, and that all establishments, or regulations con- 
 travening these rights, are oppressive and unjust. 
 
 13th. That excessive bail ought not to be required, nor exces- 
 sive fines imposed, nor cruel and unusual punishments inflicted. 
 
 14th. That every freeman has a right to be secure from all un- 
 reasonable searches and seizures of his person, his papers, and 
 property ; all warrants therefore to search suspected places, or 
 to apprehend any suspected person without specially naming or 
 describing the place or person, are dangerous and ought not to be 
 granted. 
 
 15th. That the people haye a right peaceably to assemble 
 together to consult for the common good, or to instruct their 
 representatives ; and that every freeman has a right to petition or 
 apply to the legislature for redress of grievances. 
 
 i6th. That the people have a right to freedom of speech, and 
 
648 AMENDMENTS OF NORTH CAROLINA. [1788 
 
 of writing and publishing their sentiments ; that freedom of the 
 press is one of the greatest bulwarks of liberty, and ought not to 
 Ije violated. 
 
 17th. That the people have a right to keep and bear arms ; that 
 a well-regulated militia, composed of the body of the people, 
 trained to arms, is the proper, natural, and safe defense of a free 
 state. That standing armies in time of peace are dangerous to 
 liberty, and therefore ought to be avoided, as far as the circum- 
 stances and protection of the community will admit; and that in 
 all cases the military should be under strict subordination to, and 
 governed by the civil power. 
 
 18th. That no soldier in time of peace ought to be quartered in 
 any house without the consent of the owner, and in time of war in 
 such manner only as the law directs. 
 
 19th. That any person religiously scrupulous of bearing arms 
 ought to be exempted upon payment of an equivalent to employ 
 another to bear arms in his stead. 
 
 20th. That religion or the duty which we owe to our Creator, 
 and the manner of discharging it, can be directed only by reason 
 and conviction, not by force or violence, and therefore all men 
 have an equal, natural and unalienable right, to the free exercise 
 of religion according to the dictates of conscience, and that no 
 particular religious sect or society ought to be favored or estab- 
 lished by law in preference to others. 
 
 Atnendments to the Constitution. 
 
 I. That each state in the union shall, respectively, retain every 
 power, jurisdiction and right, which is not by this constitution 
 delegated to the Congress of the United States, or to the depart- 
 ments of the federal government. 
 
 II. That there shall be one representative for every thirty thou- 
 sand, according to the enumeration or census, mentioned in the 
 constitution, until the whole number of representatives amounts 
 to two hundred, after which, that number shall be continued or 
 increased, as Congress shall direct, upon the principles fixed in the 
 constitution, by apportioning the representatives of each state to 
 some greater number of the people from time to time, as population 
 increases. 
 
 III. When Congress shall lay direct taxes or excises, they shall 
 immediately inform the executive power of each state, of the quota 
 of such state, according to the census herein directed, which is 
 proposed to be thereby raised : And if the legislature of any state 
 shall pass any law, which shall be effectual for raising such quota 
 at the time required by Congress, the taxes and excises laid by 
 Congress shall not be collected in such state. 
 
 IV. That the members of the Senate and House of representa- 
 tives shall be ineligible to and incapable of holding any civil office 
 under the authority of the United States, during the time for which 
 they shall respectively be elected. 
 
 V. That the journals of the proceedings of the Senate and House 
 of Representatives shall be published at least once in every year. 
 
1788] AMENDMENTS OF NORTH CAROLINA. 649 
 
 except such parts thereof relating to treaties, alliances, or military 
 operations, as in their judgment require secrecy. 
 
 VI. That a regular statement and account of the receipts and 
 expenditures of the public moneys shall be published at least once 
 in every year. 
 
 VII. That no commercial treaty shall be ratified without the 
 concurrence of two-thirds of the whole number of the members of 
 the Senate: And no treaty, ceding, contracting, or restraining or 
 suspending the territorial rights or claims of the United States, or 
 any of them, or their, or any of their, rights or claims of fishing in 
 the American seas, or navigating the American rivers, shall be 
 made, but in cases of the most urgent and extreme necessity; nor 
 shall any such treaty be ratified without the concurrence of three- 
 fourths of the whole number of the members of both houses 
 respectively. 
 
 VIII. That no navigation law, or law regulating commerce, 
 shall be passed without the consent of two-thirds of the members 
 present in both houses. 
 
 IX. That no standing army or regular troops shall be raised or 
 kept up in time of peace, without the consent of two-thirds of the 
 members present in both houses. 
 
 X. That no soldier shall be enlisted for any longer term than 
 four years, except in time of war, and then for no longer term than 
 the continuance of the war. 
 
 XI. That each state respectively, shall have the power to provide 
 for organizing, arming, and disciplining its own militia, whensoever 
 Congress shall omit or neglect to provide for the same. That the 
 militia shall not be subject to martial law, except when in actual 
 service in time of war, invasion or rebellion : And when not in the 
 actual service of the United States, shall be subject only to such 
 fines, penalties and punishments, as shall be directed or inflicted 
 by the laws of its own state. 
 
 XII. That Congress shall not declare any state to be in rebeUion 
 without the consent of at least two-thirds of all the members 
 present in both houses. 
 
 XIII. That the exclusive power of legislation given to Congress 
 over the federal town and its adjacent district, and other places, 
 purchased or to be purchased by Congress, of any of the states, 
 shall extend only to such regulations as respect the police and 
 good government thereof. 
 
 XIV. That no person shall be capable of being President of the 
 United States for more than eight years in any term of sixteen 
 years. 
 
 XV. That the judicial power of the United States shall be vested 
 in one Supreme Court, and in such courts of admiralty, as Congress 
 may from time to time ordain and establish in any of the different 
 states. The judicial power shall extend to all cases in law and 
 equity, arising under treaties made, or which shall be made under 
 the authority of the United States ; to all cases affecting ambas- 
 sadors, other foreign ministers and consuls ; to all cases of 
 admiralty and maritime jurisdiction ; to controversies to which the 
 
650 AMENDMENTS OF NORTH CAROLINA. [1788 
 
 United States shall be a party ; to controversies between two or 
 more states, and between parties claiming lands under the grants of 
 different states. In all cases affecting ambassadors, other foreign 
 ministers and consuls, and those in which a state shall be a party, 
 the Supreme Court shall have original jurisdiction. In all other 
 cases before mentioned, the Supreme Court shall have appellate 
 jurisdiction as to matters of law only, except in cases of equity, and 
 of admiralty and maritime jurisdiction, in which the Supreme Court 
 shall have appellate jurisdiction, both as to law and fact, with such 
 exceptions, and under such regulations as the Congress shall 
 make. But the judicial power of the United States shall extend 
 to no case where the cause of action shall have originated before 
 the ratification of this constitution, except in disputes between 
 states about their territory, disputes between persons claiming 
 lands under the grants of different states, and suits for debts due 
 to the United States. 
 
 XVI. That in criminal prosecutions, no man shall be restrained 
 in the exercise of the usual and accustomed right of challenging or 
 excepting to the jury. 
 
 XVII. That Congress shall not alter, modify, or interfere in the 
 times, places, or manner of holding elections for senators and 
 representatives, or either of them, except when the legislature of 
 any state shall neglect, refuse or be disabled by invasion or rebel- 
 lion, to prescribe the same. 
 
 XVIII. That those clauses which declare that Congress shall 
 not exercise certain powers, be not interpreted in any manner 
 whatsoever to extend the powers of Congress ; but that they be 
 construed either as making exceptions to the specified powers 
 where this shall be the case, or otherwise, as inserted merely for 
 greater caution. 
 
 XIX. That the laws ascertaining the compensation of senators 
 and representatives for their services, be postponed in their opera- 
 tion, until after the election of representatives immediately suc- 
 ceeding the passing thereof, that excepted which shall first be 
 passed on the subject. 
 
 XX. That some tribunal, other than the senate, be provided for 
 trying impeachments of senators. 
 
 XXI. That the salary of a judge shall not be increased or 
 diminished during his continuance in office, otherwise than by 
 general regulations of salary which may take place, on a revision 
 of the subject, at stated periods of not less than seven years, to com- 
 mence from the time such salaries shall be first ascertained by 
 Congress. 
 
 XXII. That Congress erect no company of merchants with 
 exclusive advantages of commerce. 
 
 XXIII. That no treaties which shall be directly opposed to the 
 existing laws of the United States in Congress assembled, shall be 
 valid until such laws shall be repealed, or made conformable to 
 such treaty ; nor shall any treaty be valid which is contradictory to 
 the con.stitution of the United States. 
 
 XXIV. That the latter part of the fifth paragraph of the ninth 
 
1788] AMENDMENTS OF NORTH CAROLINA. 651 
 
 section of the first article be altered to read thus — " Nor shall ves- 
 sels bound to a particular state be obliged to enter or pay duties in 
 any other ; nor when bound from any one of the states be obliged 
 to clear in another." 
 
 XXV. That Congress shall not directly or indirectly, either by 
 themselves or through the judiciary, interfere with any one of the 
 states in the redemption of paper money already emitted and now 
 in circulation, or in liquidating and discharging the pubhc securi- 
 ties of any one of the states : But each and every state shall have 
 the exclusive right of making such laws and regulations for the 
 above purpose, as they shall think proper. 
 
 XXVI. That Congress shall not introduce foreign troops into 
 the United States without the consent of two-thirds of the mem- 
 bers present of both houses. 
 
 JEFFERSON'S OPINION ON THE CONSTITUTIONALITY OF A 
 NATIONAL BANK, I79I. 
 
 The bill for establishing a National Bank undertakes among 
 other things : 
 
 1. To form the subscribers into a corporation. 
 
 2. To enable them in their corporate capacities to receive grants 
 of land ; and so far is against the laws of Mortmain* 
 
 3. To make alien subscribers capable of holding lands ; and so 
 far is against the laws of Alienage. 
 
 4. To transmit these lands, on the death of a proprietor, to a 
 certain line of successors ; and so far changes the course of 
 Descents. 
 
 5. To put the lands out of the reach of forfeiture or escheat ; and 
 so far is against the laws of Forfeiture and Escheat. 
 
 6. To transmit personal chattels to successors in a certain line ; 
 and so far is against the laws of Distribution. 
 
 7. To give them the sole and exclusive right of banking under 
 the national authority ; and so far is against the laws of Monopoly. 
 
 8. To communicate to them a power to make laws paramount 
 to the laws of the States ; for so they must be construed, to pro- 
 tect the institution from the control of the State legislatures ; and 
 so, probably, they will be construed. 
 
 I consider the foundation of the Constitution as laid on this 
 ground : That " all powers not delegated to the United States, by 
 the Constitution, nor prohibited byVit to the States, are reserved to 
 the States or to the people." fXIIm amendment.] To take a single 
 step beyond the boundaries thus specially drawn around the powers 
 of Congress, is to take possession of a boundless field of power, no 
 longer susceptible of any definition. 
 
 The incorporation of a bank, and the powers assumed by this 
 
 * Though the Conslitution controls the laws of Mortmain so far as to 
 permit Congress itself to hold land for certain purposes, yet not so far as 
 to permit them to communicate a similar right to other corporate 
 bodies. — T. J. 
 
6s 2 JEFFERSON ON A NATIONAL BANK. [ITSl 
 
 bill, have not, in my opinion, been delegated to the United States, 
 by the Constitution. 
 
 1. They are not among the powers specially enumerated : for 
 these are : ist. A power to lay taxes for the purpose of paying the 
 debts of the United States ; but no debt is paid by this bill, nor 
 any tax laid. Were it a bill to raise money, its origination in the 
 Senate would condemn it by the Constitution. 
 
 2. " To borrow money." But this bill neither borrows money 
 nor ensures the borrowing it. The proprietors of the bank will be 
 just as free as any other money holders, to lend or not to lend 
 their money to the public. The operation proposed in the bill, 
 first, to lend them two millions, and then to borrow them back 
 again, cannot change the nature of the latter act, which will still 
 be a payment, and not a loan, call it by what name you please. 
 
 3. To " regulate commerce with foreign nations, and among the 
 States, and with the Indian tribes." To erect a bank, and to 
 regulate commerce, are very different acts. He who erects a bank, 
 creates a subject of commerce in its bills ; so does he who makes 
 a bushel of wheat, or digs a dollar out of the mines ; yet neither of 
 these persons regulates commerce thereby. To make a thing 
 which may be bought and sold, is not to prescribe regulations for 
 buying and selling. iBesides, if this was an exercise of the power 
 of regulating commerce, it would be void, as extending as much to 
 the internal commerce of every State, as to its external. For the 
 power given to Congress by the Constitution does not extend to 
 the internal regulation of the commerce of a State, (that is to say 
 of the commerce between citizen and citizen,) which remain exclu- 
 sively with its own legislature ; but to its external commerce only, 
 that is to say, its commerce with another State, or with foreign 
 nations, or with the Indian tribes. Accordingly the bill does not 
 propose the measure as a regulation of trade, but as " productive 
 of considerable advantages to trade." Still less are these powers 
 covered by any other of the special enumerations. 
 
 II. Nor are they within either of the general phrases, which are 
 the two following : 
 
 I. To lay taxes to provide for the general welfare of the United 
 States, that is to say, " to lay taxes for the purpose of providing 
 for the general welfare." For the laying of taxes is the power, and 
 the general welfare the purpose for which the power is to be exer- 
 cised. They are not to lay taxes ad libitum for any purpose they 
 please ; but only to pay the debts or provide for the welfare of the 
 Union. In like manner, they are not to do anything they please to 
 provide for the general welfare, but only to lay taxes for that pur- 
 pose. To consider the latter phrase, not as describing the pur- 
 pose of the first, but as giving a distinct and independent power to 
 do any act they please, which might be for the good of the Union, 
 would render all the preceding and subsequent enumerations of 
 power completely useless. 
 
 It would reduce the whole instrument to a single phrase, that of 
 instituting a Congress with power to do whatever would be for 
 the good of the United States ; and, as they would be the sole 
 
1791] JEFFERSON ON A NA TlONAL BANK. 653 
 
 judges of the good or evil, it would be also a power to do whatever 
 evil they please. 
 
 It is an established rule of construction where a phrase will bear 
 either of two meanings, to give it that which will allow some 
 meaning to the other parts of the instrument, and not that which 
 would render all the others useless. Certainly no such universal 
 power was meant to be given them. It was intended to lace them 
 up straitly within the enumerated powers, and those without which, 
 as means, these powers could not be carried into effect. It is 
 known that the very power now proposed as a means was rejected 
 as an end by the Convention which formed the Constitution. A 
 proposition was made to them to authorize Congress to open 
 canals, and an amendatory one to empower them to incorporate. 
 But the whole was' rejected, and one of the reasons for rejection 
 urged in debate was, that then they would have a power to erect a 
 bank, which would render the great cities, where there were preju- 
 dices and jealousies on the subject, adverse to the reception of the 
 Constitution. 
 
 2. The second general phrase is, " to make all laws necessary 
 and proper for carrying into execution the enumerated powers." 
 But they can all be carried into execution without a bank. A 
 bank therefore is not necessary, and consequently not authorized 
 by this phrase. 
 
 If has been urged that a bank will give great facility or conven- 
 ience in the collection of taxes. Suppose this were true : yet the 
 Constitution allows only the means which are " necessary," not 
 those which are merely " convenient " for effecting the enumerated 
 powers. If such a latitude of construction be allowed to this 
 phrase as to give any non-enumerated power, it will go to every- 
 one, for there is not one which ingenuity may not torture into a 
 convenience in some instance or other, to some one of so long a list 
 of enumerated powers. It would swallow up all the delegated 
 powers, and reduce the whole to one power, as before observed. 
 Therefore it was that the Constitution restrained them to the nec- 
 essary means, that is to say, to those means without which the 
 grant of power would be nugatory, 
 
 But let us examine this convenience and see what it is. The 
 report on this subject, page 3, states the only general convenience 
 to be, the preventing the transportation and re-transportation of 
 money between the States and the treasury, (for I pass over the 
 increase of circulating medium, ascribed to it as a want, and which, 
 according to my ideas of paper money, is clearly a demerit.) 
 Every State will have to pay a sum of tax money into the treasury ; 
 and the treasury will have to pay, in every State, a part of the 
 interest on the public debt, and salaries to the officers of govern- 
 ment resident in that State. In most of the States there will still 
 be a surplus of tax money to come up to the seat of government 
 for the officers residing there. The payments of interest and 
 salary in each State may be made by treasury orders on the State 
 collector. This will take up the greater part of the money he has 
 collected in his State, and consequently prevent the great mass of 
 
6S4 JEFFERSON ON A NATIONAL BANK. [1791 
 
 it from being drawn out of the State. If there be a balance of 
 commerce in favor of that State against the one in which the 
 government resides, the surplus of taxes will be remitted by the 
 bills of exchange drawn for that commercial balance. And so it 
 must be if there was a bank. But if there be no balance of com- 
 merce, either direct or circuitous, all the banks in the world could 
 not bring up the surplus of taxes, but in the form of money. 
 Treasury orders then, and bills of exchange may prevent the dis- 
 placement of the main mass of the money collected, without the 
 aid of any bank ; and where these fail, it cannot be prevented even 
 with that aid. 
 
 Perhaps, indeed, bank bills may be a more convenient vehicle 
 than treasury orders. But a little difference in the degree of 
 convenience cannot constitute the necessity which the Constitution 
 makes the ground for assuming any non-enumerated power. 
 
 Besides ; the existing banks will, without a doubt, enter into 
 arrangements for lending their agency, and the more favorable, as 
 there will be a competition among them for it ; whereas the bill 
 delivers us up bound to the national bank, who are free to refuse 
 all arrangement, but on their own terms, and the public not free, 
 on such refusal, to employ any other bank. That of Philadelphia, 
 I believe, now does this business, by their post-notes, which, by an 
 arrangement with the treasury, are paid by any State collector to 
 whom they are presented. This expedient alone suffices to prevent 
 the existence of that necessity which may justify the assumption of 
 a non-enumerated power as a means for carrying into effect an 
 enumerated one. The thing may be done, and has been done, and 
 well done, without this assumption ; therefore, it does not stand 
 on that degree of necessity which can honestly justify it. 
 
 It may be said that a bank whose bills would have a currency all 
 over the States, would be more convenient than one whose currency 
 is limited to a single State. So it would be still more convenient 
 that there should be a bank, whose bills should have a currency all 
 over the world. But it does not follow from this superior conven- 
 iency, that there exists anywhere a power to establish such a bank ; 
 or that the world may not go on very well without it. 
 
 Can it be thought that the Constitution intended that for a shade 
 or two of convenience, more or less. Congress should be authorized 
 to break down the most ancient and fundamental laws of the 
 several States ; such as those against Mortmain, the laws of 
 Alienage, the rules of descent, the acts of distribution, the laws of 
 escheat and forfeiture, the laws of monopoly? Nothing but a 
 necessity invincible by any other means, can justify such a prosti- 
 tution of laws, which constitute the pillars of our whole system of 
 jurisprudence. Will Congress be too strait-laced to carry the 
 Constitution into honest effect, unless they may pass over the 
 foundation-laws of the State government for the slightest conven- 
 ience of theirs.' 
 
 The negative of the President is the shield provided by the 
 Constitution to protect against the invasions of the legislature: 
 I. The right of the Executive. 2. Of the Judiciary. 3. Of the 
 
1791] JEFFERSON ON A NATIONAL BANK. 655 
 
 States and State legislatures. The present is the case of a right 
 remaining exclusively with the States, and consequently one of those 
 intended by the Constitution to be placed under its protection. 
 
 It must be added, however, that unless the President's mind on 
 a view of everything which is urged for and against this bill, is 
 tolerably clear that it is unauthorized by the Constitution ; if the 
 pro and the con hang so even as to balance his judgment, a just 
 respect for the wisdom of the legislature would naturally decide 
 the balance in favor of their opinion. It is chiefly for cases where 
 they are clearly misled by error, ambition, or interest, that the 
 Constitution has placed a check in the negative of the President. 
 
 HAMILTON'S OPINION AS TO THE CONSTITUTIONALITY OF 
 THE BANK OF THE UNITED STATES, 179I. 
 
 The Secretary of the Treasury having perused with attention the 
 papers containing the opinions of the Secretary of State and At- 
 torney General, concerning the constitutionality of the bill for es- 
 tablishing a National Bank, proceeds, according to the order of the 
 President, to submit the reasons which have induced him to enter- 
 tain a different opinion. 
 
 It will naturally have been anticipated, that in performing this 
 task, he would feel uncommon solicitude. Personal considerations 
 alone, arising from the reflection that the measure originated with 
 him, would be sufficient to produce it. The sense which he has 
 manifested of the great importance of such an institution to the 
 successful administration of the department under his particular 
 care, and an expectation of serious ill consequences to result from 
 a failure of the measure, do not permit him to be without anxiety 
 on pubhc accounts. But the chief solicitude arises from a firm per- 
 suasion, that principles of construction like those espoused by the 
 Secretary of State and Attorney General, would be fatal to the just 
 and indispensable authority of the United States. 
 
 In entering upon the argument, it ought to be premised that the 
 objections of the Secretary of State and Attorney General are 
 founded on a general denial of the authority of the United States 
 to erect corporations. The latter, indeed, expressly admits, that if 
 there be anything in the bill which is not warranted by the Con- 
 stitution, it is the clause of incorporation. 
 
 Now it appears to the Secretary of the Treasury that this gen- 
 eral principle is inherent in the very definition of government, and 
 essential to every step of progress to be made by that of the United 
 States, namely : That every power vested in a government is in 
 its xi^\.wxe, sovereign, and includes, hy force of the term, a right to 
 employ all the means requisite and fairly applicable to the attain- 
 ment of the ends of such power, and which are not precluded by 
 restrictions and exceptions specified in the Constitution, or not im- 
 moral, or not contrary to the essential ends of political society. 
 
 This principle, in its application to government in general, would 
 be admitted as an axiom ; and it will be incumbent upon those 
 
6s6 HAMILTON ON A NATIONAL BANK. [1791 
 
 who may incline to deny it, to prove a distinction, and to show that 
 a rule which, in the general system of things, is essential to the 
 preservation of the social order, is inapplicable to the United 
 States. 
 
 The circumstance that the powers of sovereignty are in this 
 country divided between the National and State governments, does 
 not afford the distinction required. It does not follow from this, 
 that each of the portion of powers delegated to the one or to the 
 other, is not sovereign with regard to its proper objects. It will 
 only follow from it, that each has sovereign power as to certain 
 things, and not as to other things. To deny that the government 
 of the United States has sovereign power, as to its declared pur- 
 poses and trusts, because its power does not extend to all cases, 
 would be equally to deny that the State governments have sover- 
 eign power in any case, because their power does not extend to 
 every case. The tenth section of the first article of the Constitu- 
 tion exhibits a long list of very important things which they may 
 not do. And thus the United States would furnish the singular 
 spectacle of a political society without sovereignty, or of ^people 
 governed, -without government. 
 
 If it would be necessary to bring proof to a proposition so clear, 
 as that which affirms that the powers of the federal government, as 
 to its objects, were sovereign, there is a clause of its Constitution 
 which would be decisive. It is that which declares that the Con- 
 stitution, and the laws of the United States made in pursuance of 
 it, and all treaties made, or which shall be made, under their 
 authority, shall be the supreme law of the land. The power which 
 can create the supreme law of the land in any case, is doubtless 
 sovereign as to such case. 
 
 This general and indisputable principle puts at once an end to 
 the abstract question, whether the United States have power to 
 erect a corporation ; that is to say, to give a legal or artificial 
 capacity to one or more persons, distinct from the natural. For 
 it is unquestionably incident to sovereign power to erect corpora- 
 tions, and consequently to that of the United States, in relation to 
 the objects intrusted to the management of the government. The 
 difference is this : where the authority of the government is gen- 
 eral, it can create corporations in all cases ; where it is confined to 
 certain branches of legislation, it can create corporations only in 
 those cases. 
 
 Here then, as far as concerns the reasonings of the Secretary of 
 State and the Attorney General, the affirmative of the constitu- 
 tionality of the bill might be permitted to rest. It will occur to the 
 President, that the principle here advanced has been untouched by 
 either of them. 
 
 For a more complete elucidation of the point, nevertheless, the 
 arguments which they had used against the power of the govern- 
 ment to erect corporations, however foreign they are to the great 
 and fundamental rule which has been stated, shall be particularly 
 examined. And after showing that they do not tend to impair its 
 force, it shall also be shown that the power of incorporation, inci- 
 
1791] HAMILTON ON A NATIONAL BANK. 657 
 
 dent to the government in certain cases, does fairly extend to the 
 particular case which is the object of the bill. 
 
 The first of these arguments is, that the foundation of the Con- 
 stitution is laid on this ground : " That all powers not delegated 
 to the United States by the Constitution, nor prohibited to it by the 
 States, are reserved for the States, or to the people." Whence it is 
 meant to be inferred, that Congress can in no ca.se exercise any 
 power not included in those not enumerated in the Constitution. 
 And it is affirmed, that the power of erecting a corporation is not 
 included in any of the enumerated powers. 
 
 The main proposition here laid down, in its true signification is 
 not to be questioned. It is nothing more than a consequence of 
 this republican maxim, that all government is a delegation of 
 power. But how much is delegated in each case, is a question 
 of fact, to be made out by fair reasoning and construction, upon 
 the particular provisions of the Constitution, taking as guides the 
 general principles and general ends of governments. 
 
 It is not denied that there are implied ss well as express powers, 
 and that the former are as effectually delegated as the latter. 
 And for the sake of accuracy it shall be mentioned, that there is 
 another class of powers, which may be properly denominated 
 resulting powers. It will not be doubted, that if the United States 
 should make a conquest of any of the territories of its neighbors, 
 they would possess sovereign jurisdiction over the conquered ter- 
 ritory. This would be rather a result, from the whole mass of 
 the powers of the government, and from the nature of pohtical 
 society, than a consequence of either of the powers specially 
 enumerated. 
 
 But be this as it may, it furnishes a striking illustration of the 
 general doctrine contended for; it shows an extensive case, in 
 which a power of erecting corporations is either implied in, or 
 would result from, some or all of the powers vested in the national 
 government. The jurisdiction acquired over such conquered coun- 
 try would certainly be competent to any species of legislation. 
 
 To return : — It is conceded that implied powers are to be con- 
 sidered as delegated equally with express ones. Then it follows, 
 that as a power of erecting a corporation may as well be implied 
 as any other thing, it may as well be employed as an instrument or 
 mean of carrying into execution any of the specified powers, as any 
 other instrument or mean whatever. The only question must be, 
 in this, as in every other case, whether the mean to be employed, 
 or in this instance, the corporation to be erected, has a natural re- 
 lation to any of the acknowledged objects or lawful ends of the 
 government. Thus a corporation may not be erected by Congress 
 for superintending the police of the city of Philadelphia, because 
 they are not authorized to regulate the police of that city. But one 
 may be erected in relation to the collection of taxes, or to the trade 
 with foreign countries, or to the trade between the States, or with 
 the Indian tribes ; because it is the province of the federal govern- 
 ment to regulate those objects, and because it is incident to a gen- 
 eral sovereign or legislative power to regulate a thing, to employ 
 
6s8 HAMILTON ON A NATIONAL BANK. [1791 
 
 all the means which relate to its regulation to the best and greatest 
 advantage. 
 
 A strange fallacy seems to have crept into the manner of think- 
 ing and reasoning upon the subject. Imagination appears to have 
 been unusually busy concerning it. An incorporation seems to 
 have been regarded as soxae. great independent substantive thing; 
 as a political end of peculiar magnitude and moment ; whereas it 
 is truly to be considered as a quality, capacity, or mean to an end. 
 Thus a mercantile company is formed, with a certain capital, for 
 the purpose of carrying on a particular branch of business. Here 
 the business to be prosecuted is the end. The association, in order 
 to form the requisite capital, is the primary mean. Suppose that 
 an incorporation were added to this, it would only be to add a new 
 quality to that association, to give it an artificial capacity, by which 
 it would be enabled to prosecute the business with more safety and 
 convenience. 
 
 That the importance of the power of incorporation has been ex- 
 aggerated, leading to erroneous conclusions, will further appear 
 from tracing it to its origin. The Roman law is the source of it, 
 according to which a voluntary association of individuals, at any 
 time, or for any purpose, was capable of producing it. In England, 
 whence our notions of it are immediately borrowed, it forms part 
 of the executive authority, and the exercise of it has been often 
 delegated by that authority. Whence, therefore, the ground of 
 the supposition that it lies beyond the reach of all those very im- 
 portant portions of sovereign power, legislative as well as execu- 
 tive, which belongs to the government of the United States. 
 
 To this mode of reasoning respecting the right of employing 
 all the means requisite to the execution of the specified powers 
 of the government, it is objected, that none but necessary and 
 proper means are to be employed ; and the Secretary of State 
 maintains, that no means are to be considered as necessary but 
 those without which the grant of the power would be nugatory. 
 Nay, so far does he go in his restrictive interpretation of the word, 
 as even to make the case of necessity which shall warrant the con- 
 stitutional exercise of the power to depend on casual and tempo- 
 rary circumstances ; an idea which alone refutes the construction. 
 The expediency of exercising a particular power, at a particular 
 time, must, indeed, depend on circumstances ; but the constitu- 
 tional right of exercising it must be uniform and invariable, the 
 same to-day as to-morrow. 
 
 All the arguments, therefore, against the constitutionality of the 
 bill derived from the accidental existence of certain State banks, — 
 institutions which happen to exist to-day, and, for aught that con- 
 cerns the government of the United States, may disappear to- 
 morrow, — must not only be rejected as fallacious, but must be 
 viewed as demonstrative that there is a radical source of error in 
 the reasoning. 
 
 It is essential to the being of the national government, that so 
 erroneous a conception of the meaning of the word necessary 
 should be exploded. 
 
1791] HAMILTON ON A NATIONAL BANK. 659 
 
 It is certain that neither the grammatical nor popular sense of 
 the term requires that construction. According to both, necessary 
 often means no more than needful, requisite, incidental, useful, 
 or conducive to. It is a common mode of expression to say, that 
 it is necessary for a government or a person to do this or that 
 thing, when nothing more is intended or understood, than that the 
 interests of the government or person require, or will be promoted 
 by, the doing of tliis or that thing. The imagination can be at no 
 loss for exemplifications of the use of the word in this sense. And 
 it is the true one in which it is to be understood as used in the 
 Constitution. The whole turn of the clause containing it indicates, 
 that it was the intent of the Convention, by that clause, to give a 
 liberal latitude to the exercise of the specified powers. The ex- 
 pressions have peculiar comprehensiveness. They are, " to make 
 all laws necessary and proper for carrying into execution the 
 foregoing powers, and all other powers vested by the Constitu- 
 tion in 'Sit. government of the United States, or in any department 
 or officer thereof." 
 
 To understand the word as the Secretary of State does, would 
 be to depart from its obvious and popular sense, and to give 
 it a restrictive operation, an idea never before entertained. It 
 would be to give it the same force as if the word absolutely or 
 indispensably had been prefixed to it. • 
 
 Such a construction would beget endless uncertainty and em- 
 barrassment. The cases must be palpable and extreme, in which 
 it could be pronounced, with certainty, that a measure was abso- 
 lutely necessary, or one, without which, the exercise of a given 
 power would be nugatory. There are few measures of any 
 government which would stand so severe a test. To insist upon 
 it, would be to make the criterion of the exercise of any implied 
 power, a case of extreme necessity ; which is rather a rule to justify 
 the overleaping of the bounds of constitutional authority, than to 
 govern the ordinary exercise of it. 
 
 It may be truly said of every government, as well as of that of the 
 United States, that it has only a right to pass such laws as are 
 necessary and proper to accomplish the objects intrusted to it. 
 For no government has a right to do merely what it pleases. 
 Hence, by a process of reasoning similar to that of the Secretary 
 of State, it might be proved that neither of the State governments 
 has a right to incorporate a bank. It might be shown that all the 
 public business of the state could be performed without a bank, 
 and inferring thence tliat it was unnecessary, it might be argued 
 that it could not be done, because it is against the rule which has 
 been just mentioned. A like mode of reasoning would prove that 
 there was no power to incorporate the inhabitants of a town, with a 
 view to a more perfect police. For it is certain that an incorpora- 
 tion may be dispensed with, though it is better to have one. It is 
 to be remembered that there is no express power in any State con- 
 stitution to erect corporations. 
 
 The degree in which a measure is necessary, can never be a test 
 of the legal right to adopt it ; that must be a matter of opinion, 
 
66o HAMILTON ON A NATIONAL BANK. [1791 
 
 and can only be a test of expediency. The relatio7i between the 
 measure and the end; between the nature of the mean employed 
 toward the execution of a power, and the object of that power, 
 must be the criterion of constitutionality, not the more or less of 
 necessity or utility. 
 
 The practice of the government is against the rule of construc- 
 tion advocated by the Secretary of State. Of this, the Act 
 concerning lighthouses, beacons, buoys, and public piers, is a deci- 
 sive example. This, doubtless, must be referred to the powers of 
 regulating trade, and is fairly relative to it. But it cannot be 
 affirmed that the exercise of that power in this instance was 
 strictly necessity, or that the power itself would be nugatory, with 
 out that of regulating estabhshments of this nature. 
 
 This restrictive interpretation of the word necessary is also con- 
 trary to this sound maxim of construction ; namely, that the 
 powers contained in a constitution of government, especially those 
 which concern the general adminstration of the affairs of a country, 
 its finances, trade, defense, etc., ought to be construed liberally 
 in advancement of the public good. This rule does not depend 
 on the particular form of a government, or on the particular de- 
 marcation of the boundaries of its powers, but on the nature and 
 object of government itself. The means by which national exi- 
 gencies are to be provided for, national inconveniences obviated, 
 national prosperity promoted, are of such infinite variety, extent, 
 and complexity, that there must of necessity be great latitude of 
 discretion in the selection and application of those means. Hence, 
 consequently, the necessity and propriety of exercising the authori- 
 ties intrusted to a government on principles of liberal construction. 
 
 The Attorney General admits the rule, but takes a distinction 
 between a State and the Federal Constitution. The latter, he 
 thinks, ought to be construed with greater strictness, because there 
 is more danger of error in defining partial than general powers. 
 But the reason of the rule forbids such a distinction. This reason 
 is, the variety and extent of public exigencies, a far greater pro- 
 portion of which, and of a far more critical kind, are objects of 
 National than of State administration. The greater danger of 
 error, as far as it is supposable, may be a prudential reason for cau- 
 tion .in practice, but it cannot be a rule of restrictive interpretation. 
 
 In regard to the clause of the Constitution immediately under 
 consideration, it is admitted by the Attorney General, that no 
 restrictive effect can be ascribed to it. ?Ie defines the word 
 necessary thus : " To be necessary is to be incidental, and may 
 be denominated the natural means of executing a power." 
 
 But while on the one hand the construction of the Secretary of 
 State is deemed inadmissible, it will not be contended, on the other, 
 that the clause in question gives any new or independent power. 
 But it gives an explicit sanction to the doctrine of implied powers, 
 and is equivalent to an admission of the proposition that the 
 government, as to its specified powers and objects, has plenary and 
 sovereign 'authority, in some cases paramount to the States; in 
 others, co-ordinate with it. For such is the plain import of the 
 
1791] HAMILTON ON A NATIONAL BANK. 66 1 
 
 declaration, that it may pass all laws necessary and proper to 
 carry into execution those powers. 
 
 It is no valid objection to the doctrine to say, that it is calcu- 
 lated to extend the power of the government throughout the entire 
 sphere of State legislation. The same thing has been said, and 
 may be said, with regard to every exercise of power by implication 
 or construction. 
 
 The moment the literal meaning is departed from, there is a 
 chance of error and abuse. And yet an adherence to the letter of 
 its powers would at once arrest the motions of government. It is 
 not only agreed, on all hands, that the exercise of constructive 
 powers is indispensable, but every act which has been passed, is 
 more or less an exemplification of it. One has been already men- 
 tioned — that relating to lighthouses, etc. — that which declares the 
 power of the President to remove officers at pleasure, acknowl- 
 edges the same truth in another and a signal instance. 
 
 The truth is, that difficulties on this point are inherent in the 
 nature of the Federal Constitution ; they result inevitably from a 
 division of the legislative power. The consequence of this division 
 is, that there will be cases clearly within the power of the national 
 government ; others, clearly without its powers ; and a third class, 
 which will leave room foP controversy and difference of opinion, 
 and concerning which a reasonable latitude of judgment must be 
 allowed. 
 
 But the doctrine which is contended for is not chargeable with 
 the consequences imputed to it. It does not affirm that the national 
 government is sovereign in all respects, but that it is sovereign to 
 a certain extent ; that is, to the extent of the objects of its specified 
 powers. 
 
 It leaves, therefore, a criterion of what is constitutional, and of 
 what is not so. This criterion is the end, to which the measure 
 relates as a mean. If the end be clearly comprehended within 
 any of the specified powers, and if the measure have an obvious 
 relation to that end, and is not forbidden by any particular pro- 
 vision of the Constitution, it may safely be deemed to come within 
 the compass of the national authority. There is also this further 
 criterion, which may materially assist the decision : Does the pro- 
 posed measure abridge a pre-existing right of any State or of any 
 individual ? If it does not, there is a strong presumption in favor 
 of its constitutionality, and slighter relations to any declared object 
 of the Constitution may be permitted to turn the scale. 
 
 The general objections, which are to be inferred from the reason- 
 ings of the Secretary of State and Attorney General, to the doctrine 
 which has been advanced, have been stated, and it is hoped satis- 
 factorily answered. Those of a more particular nature shall now 
 be examined. 
 
 The Secretary of State introduces his opinion with an observa- 
 tion, that the proposed incorporation undertakes to create certain 
 capacities, properties, or attributes, which are against the laws 
 of alienage, descents, escheat and forfeiture, distribution and 
 monopoly, and to confer a power to make laws paramount to those 
 
662 HAMILTON ON A NATIONAL BANK. [1791 
 
 ofthe States. Andnothing, sayshe, in another place, but «^c^j«/y, 
 invincible by other means, can justify such a prostration of laws, 
 which constitute the pillars of our whole system of jurisprudence, 
 and are the foundation laws of the State governments. If these 
 are truly the foundation laws of the several States, then have most 
 of them subverted their own foundations. For there is scarcely 
 one of them which has not, since the establishment of its particular 
 constitution, made material alterations in some of those branches 
 of its jurisprudence, especially the law of descents. But it is not 
 conceived how anything can be called the fundamental law of a 
 State government which is not established in its constitution, 
 unalterable by the ordinary legislature. And, with regard to the 
 question of necessity, it has been shown that this can only consti- 
 tute a question of expediency, not of right. 
 
 To erect a corporation, is to substitute a legal or artificial for 
 a natural person, and where a number are concerned, to give 
 them individuality. To that legal or artificial person, once 
 created, the common law of every State, of itself, annexes all those 
 incidents and attributes which are represented as a prostration of 
 the main pillars of their jurisprudence. 
 
 It is certainly not accurate to say, that the erection of a corpora- 
 tion is against those different heads of #ie State laws ; because it 
 is rather to create a kind of person or entity, to which they are 
 inapplicable, and to which the general rule of those laws assign a 
 different regimen. The laws of alienage cannot apply to an arti- 
 ficial person, because it can have no country ; those of descent 
 cannot apply to it, because it can have no heirs ; those of escheat 
 are foreign from it, for the same reason ; those of forfeiture, 
 because it cannot commit a crime ; those of distribution, because, 
 though it may be dissolved, it cannot die. 
 
 As truly might it be said, that the exercise of the power of pre- 
 scribing the rule by which foreigners shall be naturalized, is against 
 the law of alienage, while it is, in fact, only to put them in a situa- 
 tion to cease to be the subject of that law. To do a thing which 
 is against a law, is to do something which it forbids, or which is a 
 violation of it. 
 
 But if it were even to be admitted that the erection of a corporation 
 is a direct alteration of the state laws, in the enumerated particulars, 
 it would do nothing toward proving that the measure was uncon- 
 stitutional. If the government of the United States can do no act 
 which amounts to an alteration of a State law, all its powers are 
 nugatory ; for almost every new law is an alteration, in some way 
 or other, of an o/ia? /aw, either common or statute. 
 
 There are laws concerning bankruptcy in some States. Some 
 States have laws regulating the values of foreign coins. Congress 
 are empowered to establish uniform laws concerning bankruptcy 
 throughout the United States, and to regulate the values of foreign 
 coins. The exercise of either of these powers by Congress, neces- 
 sarily involves an alteration of the laws of those States. 
 
 Again. Every person, by the common law of each State, may 
 export his property to foreign countries, at pleasure. But Congress, 
 
1791] HAMILTON ON A NATIONAL BANK. 663 
 
 in pursuance of the power of regulating trade, may /ro/4?fo'^ the 
 exportation of commodities; in doing which, they would alter the 
 common law of each State, in abridgment of individual right. 
 
 It can therefore never be good reasoning to say this or that act 
 is unconstitutional, because it alters this or that law of a State. 
 It must be shown that the act which makes the alteration is uncon- 
 stitutional on other accounts ; not because it makes the alteration. 
 
 There are two points in the suggestions of the Secretary of 
 State, which have been noted, that are peculiarly incorrect. One 
 is, that the proposed incorporation is against the laws of monopoly, 
 because it stipulates an exclusive right of banking under the 
 national authority ; the other, that it gives power to the institution 
 to make laws paramount to those of the States. 
 
 But, with regard to the first : The bill neither prohibits any 
 State from erecting as many banks as they please, nor any number 
 of individuals from associating to carry on the business, and conse- 
 quently, is free from the charge of establishing a monopoly ; for 
 monopoly implies a 'legal i7npedi>nent to the carrying on of the 
 trade by others than those to whom it is granted. 
 
 And with regard to the second point, there is still less founda- 
 tion. The by-laws of such an institution as a bank can operate 
 only on its own member?— can only concern the disposition of its 
 own property, and must essentially resemble the rules of a private 
 mercantile partnership. They are expressly not to be contrary to 
 law ; and law must here mean the law of a State, as well as of the 
 United States. There never can be a doubt, that a law of a cor- 
 poration, if contrary to a law of a State, must be overruled as void, 
 unless the law of the State is contrary to that of the United States, 
 and then the question will not be between the law of the State and 
 that of the corporation, but between the law of the State and that 
 of the United States. 
 
 Another argument made use of by the Secretary of State is, the 
 rejection of a proposition by the Convention to empower Congress 
 to make corporations, either generally, or for some special purpose. 
 
 What was the precise nature or extent of this proposition, or 
 what the reasons for refusing it, is not ascertained by any authentic 
 document, or even by accurate recollection. As far as any such 
 document exists, it specifies only canals. If this was the amount 
 of it, it would, at most, only prove that it was thought inexpedient 
 to give a power to incorporate for the purpose of opening canals, 
 for which purpose a special power would have been necessary, 
 except with regard to the western territory, there being nothing in 
 any part of the Constitution respecting the regulation of canals. It 
 must be confessed, however, that very different accounts are given 
 of the import of the proposition, and of the motives for rejecting it. 
 Some affirm, that it was confined to the opening of canals and 
 obstructions in rivers; others, that it embraced banks ; and others, 
 that it extended to the power of incorporating generally. Some, 
 again, allege, that it was disagreed to because it was thought 
 improper to vest in Congress a power of erecting corporations. 
 Others, because it was thought unnecessary to specify the power, 
 
664 HAMILTON ON A NATIONAL BANK. [1791 
 
 and inexpedient to furnish an additional topic of objection to the 
 Constitution. In this state of the matter, no inference whatever 
 can be drawn from it. 
 
 But whatever may have been the nature of the proposition, or 
 the reasons for rejecting it, nothing is included by it, that is, 
 the proposition, in respect to the real merits of the question. The 
 Secretary of State will not deny, that, whatever may have been the 
 intention of the framers of a constitution, or of a law, that inten- 
 tion is to be sought for in the instrument itself, according to the 
 usual and established rules of construction. Nothing is more 
 common than for laws to express and effect more or less than was 
 intended. If, then, a power to erect a corporation in any case be 
 deducible, by fair inference, from the whole or any part of the 
 numerous provisions of the Constitution of the United States, 
 arguments drawn from extrinsic circumstances regarding the in- 
 tention of the Convention must be rejected. 
 
 Most of the arguments of the Secretary of State, which have not 
 been considered in the foregoing remarks, areof a nature rather to 
 apply to the expediency than to the constitutionality of the bill. 
 They will, however, be noticed in the discussions which will be 
 necessary in reference to the particular heads of the powers of the 
 government which are involved in the question. 
 
 Those of the Attorney General will now properly come under 
 view. 
 
 His first objection is, that the power of incorporation is not 
 expressly given to Congress. This shall be conceded, but in this 
 sense only, that it is not declared in express terms that Congress 
 may erect a corporation. But this cannot mean, that there are not 
 certain express ponvers which necessarily include it. For instance. 
 Congress have express power 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 a\\ places purchased, by 
 consent of the legislature of the State in which the same shall be, 
 for the erection of forts, arsenals, dock-yards, and other needful 
 buildings. Here, then, is express power to exercise exclusive 
 legislation, in all cases whatsoever, over certain places ; that is, 
 to do, in respect to those places, all that any government whatso- 
 ever may do. For language does not afford a more complete 
 designation of sovereign power than in those comprehensive terms. 
 It is, in other words, a power to pass all laws whatsoever, and, 
 consequently, to pass laws for erecting corporations, as well as for 
 any other purpose which is the proper object of law in a free 
 government. 
 
 Surely it can never be believed that Congress, with exclusive 
 powers of legislation in all cases whatsoever, cannot erect a cor- 
 poration within the district which shall become the seat of govern- 
 ment, for the better regulation of its police. And yet there is an 
 unqualified denial of the power to erect corporations in every case, 
 on the part both of the Secretary of State and of the Attorney 
 
1791] HAMILTON ON A NATIONAL BANK. 665 
 
 General; the former, indeed, speaks of that power in these emphat- 
 ical terms : That it is a right remaining exclusively with the 
 States. 
 
 As far, then, as there is an express power to do 3.ny particular 
 act of legislation, there is an express one to erect a corporation in 
 the case above described. But, accurately speaking, no particular 
 power is more than that implied in a general one. Thus the 
 power to lay a duty on & gallon of rttm is only a particular implied 
 in the general power to collect taxes, duties, imposts, smd excises. 
 This serves to explain in what sense it may be said that Congress 
 have not an express power to make corporations. 
 
 This may not be an improper place to take notice of an argu- 
 ment which was used in debate in the House of Representatives. 
 It was there argued, that if the Constitution intended to confer so 
 important a power as that of erecting corporations, it would have 
 been expressly mentioned. But the case which has been noticed 
 is clearly one in which such a power exists, and yet without any 
 specification of express grant of it, further than us t\t\Y particular 
 implied in a genei-al power can be said to be so granted. 
 
 But the argument itself is founded upon an exaggerated and 
 erroneous conception of the nature of the power. It has been 
 shown that it is not of so transcendent a kind as the reasoning 
 supposes, and that, viewed in a just light, it is a mean, which ought 
 to have been left to implication, rather than an end, which ought 
 to have been expressly granted. 
 
 Having observed that the power of erecting corporations is not 
 expressly granted to Congress, the Attorney General proceeds 
 thus : — 
 
 " If it can be exercised by them, it must be — 
 
 " I. Because the nature of the federal government implies it. 
 
 " 2. Because it is involved in some of the specified powers of 
 legislation. 
 
 " 3. Because it is necessary and proper to carry into execution 
 some of the specified powers." 
 
 To be implied in the nature of the federal government, says 
 he, would beget a doctrine so indefinite as to grasp every 
 power. 
 
 This proposition, it ought to be remarked, is not precisely, or 
 even, substantially, that which has been relied upon. The proposi- 
 tion relied upon is, that the specified powers of Congress are in 
 their nature sovereign. That it is incident to sovereign power to 
 erect corporations, and that therefore Congress have a right, witliin 
 the sphere and in relation to the objects of their power, to erect 
 corporations. It shall, however, be supposed that the Attorney 
 General would consider the two propositions in the same light, 
 and that the objection made to the one would be made to the 
 other. 
 
 To this objection an answer has been already given. It is this, 
 that the doctrine is stated with this express qualification, that the 
 right to erect corporations does only extend to cases and objects 
 within \}!\& sphere of the specified powers ol the government. A 
 
666 HAMILTON ON A NATIONAL BANK. [1791 
 
 general legislative authority implies a power to erect corporations 
 in all cases. K particular legislative power implies authority to 
 erect corporations in relation to cases arising under that power 
 only. Hence the affirming that, as incident to sovereign power, 
 Congress may erect a corporation in relation to the collection 
 of their taxes, is no more to affirm that they may do whatever 
 else they please, — than the saying that they have a power to 
 regulate trade, would be to affirm that they have a power to 
 regulate rdigion ; or than the maintaining that they have sovereign 
 power as to taxation, would be to maintain that they have sovereign 
 power as to everything else. 
 
 The Attorney General undertakes in the next place to show, that 
 the power of erecting corporations is not involved in any of the 
 specified powers of legislation confided to the national government. 
 In order to this, he has attempted an enumeration of the particulars, 
 which he supposes to be comprehended under the several heads of 
 \he. powers to lay and collect taxes, &c. ; to borrow money on the 
 credit of the United States ; to regulate commerce with sovereign 
 nations ; between the States, and with the Indian tribes ; to dis- 
 pose of and make all needful rules and regulations respecting the 
 territory of other property belonging to the United States. The 
 design of which enumeration is to show, what is included under 
 those different heads of power, and negatively, that the power of 
 erecting corporations is not included. 
 
 The truth of this inference or conclusion must depend on the 
 accuracy of the enumeration. If it can be shown that the enumera- 
 tion is defective, the inference is destroyed. To do this will be 
 attended with no difficulty. 
 
 The heads of the power to lay and collect taxes are stated to be : 
 
 1. To stipulate the sum to be lent. 
 
 2. An interest or no interest to be paid. 
 
 3. The time and manner of repaying, unless the loan be placed 
 on an irredeemable fund. 
 
 This enumeration is liable to a variety of objections. It omits 
 in the first place, the pledging or mortgaging of a fund for the 
 security of the money lent, an usual, and in most cases an essential 
 ingredient. 
 
 The idea of a stipulation of an interest or no interest is too con- 
 fined. It should rather have been said, to stipulate the considera- 
 tion of the loan. Individuals often borrow on considerations 
 other than the payment of interest, so may governments, and so 
 they often find it necessary to do. Everyone recollects the lotteiy 
 tickets and other douceurs often given in Great Britain as collat- 
 eral inducements to the lending of money to the government. 
 There are also frequently collateral conditions, which the enumera- 
 tion does not contemplate. Every contract which has been made 
 for moneys borrowed in Holland, induces stipulations that the sum 
 due shall be free from taxes, and from sequestration in time of 
 war, and mortgages all the land and property of the United States 
 for the reimbursement. 
 
 It is also known that a lottery is a common expedient for bor- 
 
1791] HAMILTON ON A NATIONAL BANK. 667 
 
 rowing money, which certainly does not fall under either of the 
 enumerated heads. 
 
 The heads of the power to regulate commerce with foreign 
 nations, are stated to be : 
 
 1. To prohibit them or their commodities from our ports. 
 
 2. To impose duties on them, where none existed before, or to 
 increase existing duties on them. 
 
 3. To subject them to any species of custom-house regulation. 
 
 4. To grant them any exemptions or privileges which policy may 
 suggest. 
 
 This enumeration is far more exceptionable than either of the 
 former. It omits everything that relates to the citizens' vessels, or 
 commodities of the United States. 
 
 The following palpable omissions occur at once : 
 
 1. Of the power to prohibit the exportation of commodities, 
 which not only exists at all times, but which in time of war it 
 would be necessary to exercise, particularly with relation to naval 
 and warlike stores. 
 
 2. Of the power to prescribe rules concerning the character- 
 istics and privileges of an American bottom ; how she shall be 
 navigated, or whether by citizens or foreigners, or by a proportion 
 of each. 
 
 3. Of the power of regulating the manner of contracting with 
 seamen ; the police of ships on their voyages, &c., of which the 
 Act for the government and regulation of seamgn, in the mer- 
 chants' service, is a specimen. 
 
 That the three preceding articles are omissions, will not be 
 doubted — there is a long list of items in addition, which admit of 
 little, if any question, of which a few samples shall be given. 
 
 1. The granting of bounties to certain kinds of vessels, and 
 certain species of merchandise ; of this nature, is the allowance on 
 dried and pickled fish and salted provisions. 
 
 2. The prescribing of rules concerning the inspection of com- 
 modities to be exported. Though the States individually are 
 competent to this regulation, yet there is no reason, in point of 
 authority at least, why a general system might not be adopted by 
 the United States. 
 
 3. The regulation of policies of insurance ; of salvage upon 
 goods found at sea, and the disposition of such goods. 
 
 4. The regulation of pilots. 
 
 5. The regulation of bills of exchange drawn by a merchant of 
 one State upon a merchant of another State. This last rather be- 
 longs to the regulation of trade between the States, but is equally 
 omitted in the specifications under that head. 
 
 The last enumeration relates to the power to dispose of, and 
 make all needful rules and regulations respecting the territory or 
 other property belonging to the United States. 
 
 The heads of this power are said to be : 
 
 I. To exert an ownership over the territory of the United States 
 which may be properly called the property of the United States, as 
 in the western territory, and to institute a government therein, or 
 
668 HAMILTON ON A NATIONAL BANK. [1791 
 
 2. To exert an ownership over the other property of the United 
 States. 
 
 The idea of exerting an ownership over the territory or other 
 property of the United States, is particularly indefinite and vague. 
 It does not at all satisfy the conception of what must have been 
 intended by a power to make all needful rules and regulations, 
 nor would there have been any use for a special clause, which 
 authorized nothing more. For the right of exerting an ownership 
 is implied in the very definition of property. It is admitted, that 
 in regard to the western territory, something more is intended; 
 even the institution of a government, that is, the creation of a 
 body politic, or corporation of the highest nature ; one which, in 
 its maturity, will be able itself to create other corporations. Why, 
 then, does not the same clause authorize the erection of a corpora- 
 tion, in respect to the regulation or disposal of any other of the 
 property of the United States. 
 
 This idea will be enlarged upon in another place. 
 
 Hence it appears, that the enumerations which have been at- 
 tempted by the Attorney General, are so imperfect, as to authorize 
 no conclusion whatever ; they, therefore, have no tendency to 
 disprove that each and every of the powers, to which they relate, 
 includes that of erecting corporations, which they certainly do, as 
 the subsequent illustrations will more and more evince. 
 
 It is presumed to have been satisfactorily shown in the course of 
 the preceding observations : 
 
 1. That the power of the government, as to the objects in- 
 trusted to its management, is, in its nature, sovereign. 
 
 2. That the right of erecting corporations is one inherent in, and 
 inseparable from, the idea of sovereign power. 
 
 3. That the position, that the government of the United States 
 can exercise no power, but such as is delegated to it by its Con- 
 stitution, does not militate against this principle. 
 
 4. That the word necessary, in the general clause, can have no 
 restrictive operation derogating from the force of this principle ; 
 indeed, that the degree in which a measure is or is not necessary, 
 cannot be a test of constitutional right, but of expediency only. 
 
 5. That the power to erect corporations is not to be considered 
 as an independent or substantive power, but as an incidental 
 and auxiliary one, and was therefore more properly left to im- 
 plication, than expressly granted. 
 
 6. That the principle in question does not extend the power of 
 the government beyond the prescribed limits, because it only 
 affirms a power to incorporate for purposes within the sphere 
 of the specified powers. 
 
 And lastly, that the right to exercise such a power in certain 
 cases is unequivocally granted in the mostpositive and comprehen- 
 sive terms. To all which it only remains to be added, that such a 
 power has actually been exercised in two very eminent instances ; 
 namely, in the erection of two governments ; one northwest of the 
 River Ohio, and the other southwest — the last independent of 
 any antecedent compact. And these result in a full and complete 
 
17911 HAMILTON ON A NATIONAL BANK. 669 
 
 demonstration, that the Secretary of State and the Attorney 
 General are mistaken when they deny generally the power of the 
 national government to erect corporations. 
 
 It shall now be endeavored to be shown that there is a power 
 to erect one of the kind proposed by the bill. This will be done 
 by tracing a natural and obvious relation between the institution 
 of a bank and the objects of several of tlie enumerated powers 
 of the government ; and by showing that, politically speaking, it 
 is necessary to the effectual execution of one or more of those 
 powers. 
 
 In the course of this investigation, various instances will be 
 stated, by way of illustration of a right to erect corporations under 
 those powers. 
 
 Some preliminary observations inay be proper. 
 
 The proposed bank is to consist of an association of persons, 
 for the purpose of creating a joint capital; to be employed chiefly 
 and essentially in loans. So far the object is not only lawful, but 
 it is the mere exercise of a right which the law allows to every in- 
 dividual. The Bank of New York, which is not incorporated, is 
 an example of such an association. The bill proposed in addition 
 that the government shall become a joint proprietor in this under- 
 taking, and that it shall permit the bills of the company, payable 
 on demand, to be receivable in its revenues ; and stipulates that 
 it shall not grant privileges, similar to those which are to be al- 
 lowed to this company, to any others. All this is incontrovertibly 
 within the compass of the discretion of the government. The 
 only question is, whether it has a right to incorporate this com- 
 pany, in order to enable it the more effectually to accomplish ends 
 which are in themselves lawful. 
 
 To establish such a right, it remains to show the relation of such 
 an institution to one or more of the specified powers of the govern- 
 ment. Accordingly it is affirmed that it has a relation, more or 
 less direct, to the power of collecting taxes, to that of borrowing 
 money, to that of regulating trade between the States, and to 
 those of raising and maintaining fleets and armies. To the two 
 former the relation may be said to be immediate ; and in the last 
 place it will be argued, that it is clearly within the provision which 
 authorizes the making of all needful rules and regulations con- 
 cerning ths property of the United States, as the same has been 
 practiced upon by the government. 
 
 A bank relates to the collection of taxes in two ways — in- 
 directly, by increasing the quantity of circulating medium and 
 quickening circulation, which facilitates the means of paying 
 directly, by creating a convenient species of medium in which they 
 are to be paid. 
 
 To designate or appoint the money or thing in which taxes are 
 to be paid, is not only a proper, but a necessary exercise of the 
 power of collecting them. Accordingly Congress, in the law con- 
 cerning the collection of the duties on imposts and tonnage, have 
 provided that they shall be paid in gold and silver. But while it 
 Svas an indispensable part of the work to say in what they should be 
 
670 HAMILTON ON A NATIONAL BANK. L1791 
 
 paid, the choice of the specific thing was mere matter of discretion. 
 The payment might have been required in the commodities them- 
 selves. Taxes in kind, however ill-judged, are not without pre- 
 cedents, even in the United States ; or it might have been in the 
 paper money of the several States, or in the bills of the Bank of 
 North America, New York and Massachusetts, all or either of 
 them ; or it might have been in bills issued under the authority 
 of the United States. 
 
 No part of this can, it is presumed, be disputed. The appoint- 
 ment, then, of the money or thing in which the taxes are to be 
 paid, is an incident to the power of collection. And among the 
 expedients which may be adopted, is that of bills issued under the 
 authority of the United States. 
 
 Now, the manner of issuing these bills is again matter of discre- 
 tion. The government might doubtless proceed in the following 
 manner : 
 
 It might provide that they should be issued under the direction 
 of certain ofificers, payable on demand ; and, in order to support 
 their credit, and give them a ready circulation, it might, besides 
 giving them a currency in its taxes, set apart, out of any moneys in 
 its treasury, a given sum, and appropriate it, under the direction 
 of those officers, as a fund for answering the bills, as presented for 
 payment. 
 
 The constitutionality of all this would not admit of a question, 
 and yet it would amount to the institution of a bank, with a view 
 to the more convenient collection of taxes. For the simplest and 
 most precise idea of a bank is, a deposit of coin, or other prop- 
 erty, as a fund for circulating credit upon it, which is to answer 
 the purpose of money. That such an arrangement would be 
 equivalent to the establishment of a bank, would become obvious, 
 if the place where the fund to be set apart was kept should be 
 made a receptacle of the moneys of all other persons who should 
 incline to deposit them there for safe-keeping ; and would become 
 still more so, if the officers charged with the direction of the fund 
 were authorized to make discounts at the usual rate of interest, 
 upon good security. To deny the power of the government to 
 add these ingredients to the plan, would be to refine away all 
 government. 
 
 A further process will still more clearly illustrate the point. 
 Suppose, when the species of bank which has been described was 
 about to be instituted, it was to be urged that, in order to secure 
 to it a due degree of confidence, the fund ought not only to be 
 set apart and appropriated generally, but ought to be specifically 
 vested in the officers who were to have the direction of it, and in 
 their successors in office, to the end that it might acquire the 
 character of private property, incapable of being resumed with- 
 out a violation of the sanctions by which the rights of property are 
 protected, and occasioning more serious and general alarm — the 
 apprehension of which might operate as a check upon the govern- 
 ment. Such a proposition might be opposed by arguments 
 against the expedience of it, or the solidity of the reason assigned 
 
1791] HAMILTON ON A NATIONAL BANK. 671 
 
 for it, but it is not conceivable wliat could be urged against its 
 constitutionality ; and yet such a disposition of the thing would 
 amount to the erection of a corporation ; for the true definition of 
 a corporation seems to be this : It is a legal person, or a person 
 created by act of law, consisting of one or more natural persons 
 authorized to hold property, or a franchise in succession, in a 
 legal, as contradistinguished from natural, capacity. 
 
 Let the illustration proceed a step further. Suppose a bank of 
 the nature which has been described, with or without incorpora- 
 tion, had been instituted, and that experience had evinced, as it 
 probably would, that, being wholly under a public direction, it 
 possessed not the confidence requisite to the credit of the bills. 
 Suppose, also, that, by some of those adverse conjunctures which 
 occasionally attend nations, there had been a very great drain of 
 the specie of the country, so as not only to cause general distress 
 for want of an adequate medium of circulation, but to produce, in 
 consequence of that circumstance, considerable defalcations in the 
 public revenues. Suppose, also, that there was no bank instituted 
 in any State ; in such a posture of things, would it not be most 
 manifest, that the incorporation of a bank like that proposed by 
 the bill would be a measure immediately relative to the effectual 
 collection of the taxes, and completely within the province of the 
 sovereign power of providing, by all laws necessary and proper, 
 for that collection ? If it be said, that such a state of things would 
 render that necessary, and therefore constitutional, which is not so 
 now, the answer to this, and a solid one it doubtless is, must still 
 be that which has been already stated — circumstances may affect 
 the expediency of the measure, but they can neither add to nor 
 diminish its constitutionality. 
 
 A bank has a direct relation to the power of borrowing money, 
 because it is an usual, and in sudden emergencies an essential, in- 
 strument in the obtaining of loans to government. 
 
 A nation is threatened with a war ; large sums are wanted on a 
 sudden to make the requisite preparations. Taxes are laid for the 
 purpose, but it requires time to obtain the benefit of them. An- 
 ticipation is indispensable. If there be a bank the supply can at 
 once 6e had. If there be none, loans from individuals must be 
 sought. The progress of these is often too slow for the exigency ; 
 in some situations they are not practicable at all. Frequently, 
 when they are, it is of great consequence to be able to anticipate 
 the product of them by advance from a bank. 
 
 The essentiality of such an institution as an instrument of loans 
 is exemplified at this very moment. An Indian expedition is to be 
 prosecuted. The only fund, out of which the money can arise, 
 consistently with the public engagements, is a tax, which only 
 begins to be collected in July next. The preparations, however, 
 are instantly to be made. The money must, therefore, be bor- 
 rowed — and of whom could it be borrowed if there were no public 
 banks ? 
 
 It happens that there are institutions of this kind, but if there 
 were none, it would be indispensable to create one. 
 
672 HAMILTON ON A NATIONAL BANK. [1791 
 
 Let it then be supposed that the necessity existed, (as but for a 
 casualty would be the case,) that proposals were made for obtain- 
 ing a loan ; that a number of individuals came forward and said, 
 we are willing to accommodate the government with the money ; 
 with what we have in hand, and the credit we can raise upon it, 
 we doubt not of being able to furnish the sum required ; but in 
 order to this, it is indispensable that we should be incorporated as 
 a bank. This is essential toward putting it in our power to do 
 what is desired, and we are obliged on that account to make it 
 the consideration or condition of the loan. 
 
 Can it be believed that a com.pliance with this proposition would 
 be unconstitutional ? Does not this alone evince the contrary .' 
 It is a necessary part of a power to borrow, to be able to stipulate 
 the consideration or conditions of a loan. It is evident, as has 
 been remarked elsewhere, that this is not confined to the mere 
 stipulation of z. franchise. If it may, and it is not perceived why 
 it may not, then the grant of a corporate capacity may be stipu- 
 lated as a consideration of the loan. There seems to be nothing 
 unfit or foreign from the nature of the thing in giving individuality, 
 or a corporate capacity to a number of persons, who are willing to 
 lend a sum of money to the government, the better to enable them 
 to do it, and make them an ordinary instrument of loans in future 
 emergencies of the state. But the more general view of the 
 subject is still more satisfactory. The legislative power of bor- 
 rowing money, and of making all laws necessary and proper for 
 carrying into execution that power, seems obviously competent to 
 the appointment of the organ, through which the abilities and 
 wills of individuals may be most efficaciously exerted for the 
 accommodation of the government by loans. 
 
 The Attorney General opposes to this reasoning the following 
 observation : — " Borrowing money presupposes the accumulation 
 of a fund to be lent, and is secondary to the creation of an ability 
 to lend." This is plausible in theory, but is not true in fact. In 
 a great number of cases, a previous accumulation of a fund 
 equal to the whole sum required does not exist. And nothing 
 more can be actually presupposed, than that there exist re- 
 sources, which, put into activity to the greatest advantage by the 
 nature of the operation with the government, will be equal to the 
 effect desired to be produced. All the provisions and operations 
 of government must be presumed to contemplate things as they 
 really are. 
 
 The institution of a bank has also a natural relation to the regu- 
 lation of trade between the States, in so far as it is conducive to 
 the creation of a convenient medium of exchange between them, 
 and to the keeping up a full circulation, by preventing the fre- 
 quent displacement of the metals in reciprocal remittances. 
 Money is the very hinge on which commerce turns. And this 
 does not merely mean gold and silver ; many other things have 
 served the purpose, with different degrees of utility. Paper has 
 been extensively employed. 
 
 It cannot, therefore, be admitted, with the Attorney General, 
 
1Y91] HAMILTON ON A NATIONAL SANK. ^73 
 
 that the regulation of trade between the States, as it concerns the 
 medium of circulation and exchange, ought to be considered as 
 confined to coin. It is even supposable that the whole, or the 
 greatest part, of the coin of the country might be carried out 
 of it. 
 
 The Secretary of State objects to the relation here insisted upon, 
 by the following mode of reasoning : — To erect a bank, says he, 
 and to regulate commerce, are very different acts. He who 
 creates a bank, creates a subject of commerce ; so does he who 
 makes a bushel of wheat, or digs a dollar out of the mines ; yet 
 neither of these persons regulates commerce thereby. To make a 
 thing which may be bought and sold, is not to prescribe regula- 
 tions for buying and selling. 
 
 This making the regulation of commerce to consist in prescrib- 
 ing rules for buying and selling — this, indeed, is a species of 
 regulation of trade, but is one which falls more aptly within the 
 province of the local jurisdictions than within that of the general 
 government, whose care they must be presumed to have been in- 
 tended to be directed to those general political arrangements con- 
 cerning trade on which its aggregated interests depend, rather 
 than to the details of buying and selling. Accordingly, such only 
 are the regulations to be found in the laws of the United States, 
 whose objects are to give encouragement to the enterprise of our 
 own merchants, and to advance our navigation and manufactures. 
 And it is in reference to these general relations of commerce, that 
 an establishment which furnishes facilities to circulation, and a 
 convenient medium of exchange and alienation, is to be regarded 
 as a regulation of trade. 
 
 The Secretary of State further argues, that if this was a regula- 
 tion of commerce, it would be void, as extending as much to the 
 internal commerce of every State as to its external. But what 
 regulation of commerce does not extend to the internal commerce 
 of every State .' What are all the duties upon imported articles, 
 amounting to prohibitions, but so many bounties upon domestic 
 manufactures, affecting the interests of different classes of citizens, 
 in different ways ? What are all the provisions in the Coasting 
 Acts which relate to the trade between district and district of the 
 same State? In short, what regulation of trade between the 
 States but must affect the internal trade of each State ? What 
 can operate upon the whole, but must extend to every part ? 
 
 The relation of a bank to the execution of the powers that con- 
 cern the common defense has been anticipated. It has been 
 noted, that, at this very moment, the aid of such an institution is 
 essential to the measures to be pursued for the protection of our 
 frontiers. 
 
 It now remains to show, that the incorporation of a bank is 
 within the operation of the provision which authorizes Congress to 
 make all needful rules and regulations concerning the property of 
 the United States. But it is previously necessary to advert to a 
 distinction which has been taken by the Attorney General. 
 
 He admits that the word property may signify personal prop- 
 
674 HAMILTON ON A NATIONAL BANK. [1791 
 
 erty, however acquired, and yet asserts that it cannot signify 
 money arising from the sources of revenue pointed out in the Con- 
 stitution, " because," says he, " the disposal and regulation of 
 money is the final cause for raising it by taxes.'' 
 
 But it would be more accurate to say that the object to which 
 money is intended to be applied is the final cause for raising it, 
 than that the disposal and regulation of it is such. 
 
 The support of government — the support of troops for the 
 common defense — the payment of the public debt, are the true 
 final causes for raising money. The disposition and regulation of 
 it, when raised, are the steps by which it is applied to the ends for 
 which it was raised, not the ends themselves. Hence, there- 
 fore, the money to be raised by taxes, as well as any other 
 personal property, must be supposed to come within the meaning, 
 as they certainly do within the letter, of authority to make all need- 
 ful rules and regulations concerning the property of the United 
 States. 
 
 A case will make this plainer. Suppose the public debt dis- 
 charged, and the funds now pledged for it liberated. In some in- 
 stances it would be found expedient to repeal the taxes ; in others, 
 the repeal might injure our own industry, our agriculture and 
 manufactures. In these cases they would, of course, be retained. 
 Here, then, would be moneys arising from the authorized sources 
 of revenue, which would not fall within the rule by which the 
 Attorney General endeavors to except them from other personal 
 property, and from the operation of the clause in question. The 
 moneys being in the coffers of government, what is to hinder such 
 a disposition to be made of them as is contemplated in the bill ; or 
 what an incorporation of the parties concerned, under the clause 
 which has been cited .' 
 
 It is admitted that with regard to the western territory they give 
 a power to erect a corporation — that is, to institute a government; 
 and by what rule of construction can it be maintained, that the 
 same words in a constitution of government will not have the 
 same effect when applied to one species of property as to another, 
 as far as the subject is capable of it ? — Or that a legislative power 
 to make all needful rules and regulations, or to pass all laws 
 necessary and proper, concerning the public property, which is 
 admitted to authorize an incorporation in one case, will not au- 
 thorize it in another ? — will justify the institution of a government 
 over the western territory, and will not justify the incorporation of 
 a bank for the more useful management of the moneys of the 
 United States ? If it will do the last, as well as the first, then, 
 under this provision alone, the bill is constitutional, because it con- 
 templates that the United States shall be joint proprietors of the 
 stock of the bank. 
 
 There is an observation of the Secretary of State to this effect, 
 which may require notice in this place : — Congress, says he, are 
 not to lay taxes ad libitum, for any purpose they please, but only 
 to pay the debts or provide for the welfare of the Union. Cer- 
 tainly no inference can be drawn from this against the power of 
 
1791] HAMILTO.N ON A NATIONAL BANK. 675 
 
 applying their money for tlie institution of a bank. It is true that 
 they cannot without breach of trust lay taxes for any other pur- 
 pose than the general welfare ; but so neither can any other 
 government. The welfare of the community is the only legitimate 
 end for which money can be raised on the community. Congress 
 can be considered as under only one restriction which does not 
 apply to other governments, — they cannot rightfully apply the 
 money they raise to any purpose merely or purely local. 
 
 But, with this exception, they have as large a discretion in rela- 
 tion to the application of money as any legislature whatever. The 
 constitutional test of a right application must always be, whether 
 it be for a purpose ol general or local nature. If the former, there 
 can be no want of constitutional power. The quality of the 
 object, as how far it will really promote or not the welfare of the 
 Union, must be matter of conscientious discretion, and the argu- 
 ments for or against a measure in this light must be arguments 
 concerning expediency or inexpediency, not constitutional right. 
 Whatever relates to the general order of the finances, to the 
 general interests of trade, etc., being general objects, are consti- 
 tutional ones for the application of money. 
 
 A bank, then, whose bills are to circulate in all the revenues of 
 the country, is evidently a general object, and, for that very 
 reason, a constitutional one, as far as regards the appropriation of 
 money to it. Whether it will really be a beneficial one or not, is 
 worthy of careful examination, but is no more a constitutional 
 point, in the particular referred to, than the question, whether the 
 western lands shall be sold for twenty or thirty cents per acre. 
 
 A hope is entertained that it has, by this time, been made to ap- 
 pear, to the satisfaction of the President, that a bank has a. natural 
 relation to the power of collecting taxes — to that of regulating 
 trade — to that of providing for tlie common defense — and that, as 
 the bill under consideration contemplates the government in the 
 light of a joint proprietor of the stock of the bank, it brings the 
 case within the provision of the clause of the Constitution which 
 immediately respects the property of the United States. 
 
 Under a conviction that such a relation subsists, the Secretary 
 of the Treasury, with all deference, conceives, that it will result as 
 a necessary consequence from the position, that all the special 
 powers of government are sovereign, as to the proper objects ; 
 that the incorporation of a bank is a constitutional measure ; and 
 that the objections taken to the bill, in this respect, are ill- 
 founded. 
 
 But, from an earnest desire to give the utmost possible satisfac- 
 tion to the mind of the President, on so delicate and important a 
 subject, the Secretary of the Treasury will ask his indulgence, 
 while he gives some additional illustrations of cases in which a 
 power of erecting corporations may be exercised, under some of 
 those heads of the specified powers of the government, which are 
 alleged to include the right of incorporating a bank. 
 
 I. It does not appear susceptible of a doubt, that if Congress 
 had thought proper to provide, in the collection laws, that the 
 
676 HAMILTON ON A NATIONAL BANK. tlMl 
 
 bonds to be given for the duties should be given to the collector of 
 the district, A or B, as the case might require, to inure to him and 
 his successors in office, in trust for the United States, that it 
 would have been consistent with the Constitution to make such an 
 arrangement ; and yet this, it is conceived, would amount to an 
 incorporation. 
 
 2. It is not an unusual expedient of taxation to farm particular 
 branches of revenue — that is, to mortgage or sell the product of 
 them for certain definite sums, leaving the collection to the parties 
 to whom they are mortgaged or sold. There are even examples 
 of this in the United States. Suppose that there was any particu- 
 lar branch of revenue which it was manifestly expedient to place on 
 this footing, and there were a number of persons willing to engage 
 with the government, upon condition that they should be incor- 
 porated, and the sums invested in them, as well for their greater 
 safety, as for the more convenient recovery and management of 
 the taxes. Is it supposable that there could be any constitutional 
 obstacle to the measure ? It is presumed that there could be 
 none. It is certainly a mode of collection which it would be in 
 the discretion of the government to adopt, though the circum- 
 stances must be very extraordinary that would induce the Secre- 
 tary to think it expedient. 
 
 3. Suppose a new and unexplored branch of trade should pre- 
 sent itself, with some foreign country. Suppose it was manifest 
 that to undertake it with advantage required an union of the 
 capitals of a number of individuals, and that those individuals 
 would not be disposed to embark without an incorporation, as well 
 to obviate that consequence of a private partnership which makes 
 every individual liable in his whole estate for the debts of the com- 
 pany, to their utmost extent, as for the more convenient manage- 
 ment of the business — what reason can there be to doubt that the 
 national government would have a constitutional right to insti- 
 tute and incorporate such a company.' None. They possess a 
 general authority to regulate trade with foreign countries. This 
 is a mean which has been practiced to that end, by all the prin- 
 cipal commercial nations, who have trading companies to this day, 
 which have subsisted for centuries. Why may not the United 
 States, constitutionally, employ the means usual in other coun- 
 tries, for attaining the ends intrusted to them ? 
 
 A power to make all needful rules and regulations concerning 
 territory, has been construed to mean a power to erect a govern- 
 ment. A power to regulate trade, is a power to make all needful 
 rules and regulations concerning trade. Why may it not, then, 
 include that of erecting a trading company, as well as, in other 
 cases, to erect a government .' 
 
 It is remarkable that the State conventions, who had proposed 
 amendments in relation to this point, have most, if not all of them, 
 expressed themselves nearly thus: Congress shall not grant 
 monopolies, nor erect any company with exclusive advantages of 
 commerce ! Thus, at the same time, expressing their sense, that 
 the power to erect trading companies or corporations was inherent 
 
1791] HAMILTON ON A NATIONAL BANK. ^11 
 
 in Congress, and objecting to it no further than as to the grant of 
 exclusive privileges. 
 
 The Secretary entertains all the doubts which prevail concern- 
 ing the utility of such companies, but he cannot fashion to his own 
 mind a reason, to induce a doubt, that there is a constitutional au- 
 thority in the United States to establish them. If such a reason 
 were demanded, none could be given, unless it were this : That 
 Congress cannot erect a corporation. Which would be no better 
 than to say, they cannot do it, because they cannot do it^first 
 presuming an inability, without reason, and then assigning that 
 inability as the cause of itself. Illustrations of this kind might 
 be multiplied without end. They shall, however, be pursued no 
 further. 
 
 There is a sort of evidence on this point, arising from an ag- 
 gregate view of the Constitution, which is of no inconsiderable 
 weight: the very general power of laying and collecting taxes, 
 and appropriating their proceeds — that of borrowing money indefi- 
 nitely — that of coining money, and regulating foreign coins — that 
 of making all needful rules and regulations respecting the property 
 of the United States. These powers combined, as well as the 
 reason and nature of the thing, speak strongly this language : that 
 it is the manifest design and scope of the Constitution to vest in 
 Congress all the powers requisite to the effectual adminstration of 
 the finances of the United States. As far as concerns this object, 
 there appears to be no parsimony of power. 
 
 To suppose, then, that the government is precluded from the 
 employment of so usual and so important an instrument for the 
 administration of its finances as that of a bank, is to suppose what 
 does not coincide with the general tenor and complexion of the 
 constitution, and what is not agreeable to impressions that any 
 new spectator would entertain concerning it. 
 
 Little less than a prohibitory clause can destroy the strong pre- 
 sumptions which result from the general aspect of the govern- 
 ment. Nothing but demonstration should exclude the idea that 
 the power exists. 
 
 In all questions of this nature, the practice of mankind ought to 
 have great weight against the theories of individuals. 
 
 The fact, for instance, that all the principal commercial nations 
 have made use of trading corporations or companies, for the pur- 
 pose of external commerce, is a satisfactory proof that the 
 establishment of them is an incident to the regulation of the 
 commerce. 
 
 This other fact, that banks are an usual engine in the administra- 
 tion of national finances, and an ordinary and the most effectual 
 instrunient of loan, and one which, in this country, has been found 
 essential, pleads strongly against the supposition that a govern- 
 ment, clothed with most of tlie most important prerogatives of 
 sovereignty in relation to its revenues, its debts, its credits, its de- 
 fense, its trade, its intercourse with foreign nations, is forbidden 
 to make use of that instrument as an appendage to its own 
 authority. 
 
6jS HAMILTON ON A NATIONAL BANK. [1791 
 
 It has been stated as an auxiliary test of constitutional authority 
 to try whether it abridges any pre-existing right of any State, or 
 any individual. The proposed investigation will stand the most 
 severe examination on this point. Each State may still erect as 
 many banks as it pleases. Every individual may still carry on the 
 banking business to any extent he pleases. 
 
 Another criterion may be this. Whether the institution or thing 
 has a more direct relation, as to its uses, to the objects of the 
 reserved powers of the State governments than to those of the 
 powers delegated by the United States. This, rule, indeed, is less 
 precise than the former ; but it may still serve as some guide. 
 Surely a bank has more reference to the objects intrusted to the 
 national government than to those left to the care of the State 
 governments. The common defense is decisive in this com- 
 parison. 
 
 It is presumed that nothing of consequence in the observations 
 of the Secretary of State, and Attorney General, has been left un- 
 noticed. 
 
 There are, indeed, a variety of observations of the Secretary of 
 State designed to show that the utilities ascribed to a bank, in re- 
 lation to the collection of taxes, and to trade, could be obtained 
 without it ; to analyze which, would prolong the discussion beyond 
 all bounds. It shall be forborne for two reasons. First, because 
 the report concerning the bank, may speak for itself in this respect ; 
 and secondly, because all those observations are grounded on the 
 erroneous idea that the quantum of necessity or utility is the test 
 of a constitutional exercise of power. 
 
 One or two remarks only shall be made. One is, that he has 
 taken no notice of a very essential advantage to trade in general, 
 which is mentioned in the report, as peculiar to the existence of a 
 bank circulation, equal in the public estimation to gold and silver. 
 It is this that renders it unnecessary to lock up the money of the 
 country, to accumulate for months successively, in order to the 
 periodical payment of interest. The other is this: that his argu- 
 ments to show that treasury orders and bills of exchange, from the 
 course of trade, will prevent any considerable displacement of the 
 metals, are founded on a particular view of the subject. A case 
 will prove this. The sums collected in a State may be small in 
 comparison with the debt due to it ; the balance of its trade, 
 direct and circuitous with the seat of government, may be even, or 
 nearly so ; here, then, without bank bills, which in that State 
 answer the purpose of coin, there must be a displacement of the 
 coin, in proportion to the difference between the sum collected in 
 the State, and that to be paid in it. With bank bills, no such dis- 
 placement would take place, or as far as it did, it would be gradual 
 and insensible. In many other ways, also, would there be at least 
 a temporary and inconvenient displacement of the coin, even 
 where the course of trade would eventually return it to its proper 
 channel. 
 
 The difference of the two situations in point of convenience to 
 the treasury, can only be appreciated by one, who experiences the 
 
1791] HAMILTON ON A NATIONAL BANK. 679 
 
 embarrassments of making provision for the payment of the in- 
 terest on a stock, continually changing place in thirteen different 
 places. 
 
 One thing which has been omitted, just occurs, although it is 
 not very material to the main argument. The Secretary of State 
 affirms that the bill only contemplates a repayment, not a loan, to 
 the government. But here he is certainly mistaken. It is true 
 the government invests in the stock of the bank a sum equal to that 
 which it receives on loan. But let it be remembered, that it does 
 not, therefore, cease to be a proprietor of the stock, which would 
 be the case, if the money received back were in the nature of a 
 payment. It remains a proprietor still, and will share in the profit 
 or loss of the institution, according as the dividend is more or less 
 than the interest it is to pay on the sum borrowed. Hence that 
 sum is manifestly, and in the strictest sense, a loan. 
 
 KENTUCKY RESOLUTIONS OF 1798.' 
 
 The House, according to the standing order of the day, resolved 
 itself into a committee of the whole on the state of the common- 
 wealth, Mr. Caldwell in the chair, and after some time spent 
 therein, the Speaker resumed the chair, and JVIr. Caldwell reported 
 that the committee had, according to order, had under considera- 
 tion the Governor's address, and had come to the following 
 resolutions thereupon, which he delivered in at the clerk's table, 
 where they were twice read and agreed to by the House. 
 
 1. Resolved, That the several states composing the United 
 States of America, are not united on the principle of unlimited 
 submission to their general government ; but that by compact, 
 under the style and title of a Constitution for the United States, 
 and of amendments thereto, they constituted a general govern- 
 ment for special purposes, delegated to that government certain 
 definite powers, reserving, each state to itself, the residuary mass 
 of right to their own self-government ; and that whensoever the 
 general government assumes undelegated powers, its acts are 
 unauthoritative, void, and of no force : That to this compact each 
 state acceded as a state, and is an integral party, its co-states 
 forming as to itself, the other party: That the government created 
 by this compact was not made the exclusive or final judge of the 
 extent of the powers delegated to itself ; since that would have 
 made its discretion, and not the Constitution, the measure of its 
 powers ; but that, as in all other cases of compact among parties 
 having no common judge, each party has an equal right to judge 
 for itself, as well of infractions, as of the mode and measure of 
 redress. 
 
 2. Resolved, That the Constitution of the United States having 
 delegated to Congress a power to punish treason, counterfeiting 
 the securities and current coin of the United States, piracies and 
 felonies committed on the high seas, and offenses against the laws 
 
 ' Drafted by Thomas Jefferson. 
 
68o KENTUCKY RESOLUTIONS. [1798 
 
 of nations, and no other crimes whatever, and it being true as a 
 general principle and one of the amendments to the Constitution 
 having also declared, " that the powers not delegated to the 
 United States by the Constitution, nor prohibited by it to the 
 states, are reserved to the states respectively, or to the people ; " 
 therefore, also, the same act of Congress, passed on the 14th day 
 of July, 1798, and entitled, " an act in addition to the act entitled, 
 an act for the punishment of certain crimes against the United 
 States " ; as also the act passed by them on the 27th day of June, 
 1798, entitled, " an act to punish frauds committed on the Bank 
 of the United States," (and all other their acts which assume to 
 create, define, and punish crimes other than those enumerated in 
 the Constitution,) are altogether void, and of no force, and that 
 the power to create, define, and punish such other crimes is re- 
 served, and of right appertains, solely and exclusively, to the 
 respective states, each within its own territory. 
 
 3. Resolved, That it is true as a general principle, and is also 
 expressly declared by one of the amendments to the Constitution, 
 that "the powers not delegated to the United States by the Con- 
 stitution, nor prohibited by it to the States, are reserved to the 
 states respectively, or to the people " ; and that no power over the 
 freedom of religion, freedom of speech, or freedom of the press, 
 being delegated to the United States by the Constitution, nor pro- 
 hibited by it to the states, all lawful powers respecting the same 
 did of right remain, and were reserved to the states, or to the 
 people ; that thus was manifested their determination to retain to 
 themselves the right of judging how far the licentiousness of 
 speech and of the press may be abridged without lessening their 
 useful freedom, and how far those abuses which cannot be 
 separated from their use, should be tolerated rather than the use 
 be destroyed ; and thus also they guarded against all abridgment 
 by the United States of the freedom of religious opinions ami 
 exercises, and retained to themselves the right of protecting the 
 same, as this state by a law passed on the general demand of its 
 citizens, had already protected them from all human restraint or 
 interference : and that in addition to this general principle and 
 express declaration, another and more special provision has been 
 made by one of the amendments to the Constitution, which ex- 
 pressly declares, that " Congress shall make no law respecting an 
 establishment of religion, or prohibiting the free exercise thereof, 
 or abridging the freedom of speech, or of the press," thereby 
 guarding in the same sentence, and under the same words, the 
 freedom of religion, of speech, and of the press, insomuch, that 
 whatever violates either, throws down the sanctuary which covers 
 the others, and that libels, falsehoods, and defamations, equally 
 with heresy and false religion, are withheld from the cognizance 
 of federal tribunals : that therefore the act of the Congress of the 
 United States, passed on the 14th day of July, 1798, entitled, "an 
 act in addition to the act for the punishment of certain crimes 
 against the United States," which does abridge the freedom of the 
 press, is not law, but is altogether void and of no effect. 
 
1798] KENTUCKY RESOLUTIONS. 68 r 
 
 4. Resolved, That alien-friends are under tlie jurisdiction and 
 protection of the laws of the state wherein they are ; that no 
 power over them has been delegated to the United States, nor 
 prohibited to the individual states distinct from their power over 
 citizens ; and it being true as a general principle, and one of the 
 amendments to the Constitution having also declared, that " the 
 powers not delegated to the United States by the Constitution, 
 nor prohibited by it to the states, are reserved to the states 
 respectively, or to the people," the act of the Congress of the 
 United States, passed on the 22d day of June, 1798, entitled " an 
 act concerning aliens," which assumes power over alien-friends 
 not delegated by the Constitution, is not law, but is altogether 
 void and of no force. 
 
 Sr Resolved, That in addition to the general principle as well as 
 the express declaration, that powers not delegated are reserved, 
 another and more special provision inserted in the Constitution, 
 from abundant caution, has declared, " that the inigration or 
 importation of such persons as any of the states now existing shall 
 think proper to admit, shall not be prohibited by the Congress 
 prior to the year 1808 ": that this commonwealth does admit the 
 migration of alien-friends described as the subject of the said 
 act concerning aliens ; that a provision against prohibiting their 
 migration, is a provision against all acts equivalent thereto, or it 
 would be nugatory ; that to remove them when migrated, is 
 equivalent to a prohibition of their migration, and is therefore 
 contrary to the said provision of the Constitution, and void. 
 
 6. Resolved, That the imprisonment of a person under the 
 protection of the laws of this commonwealth, on his failure to 
 obey the simple order ai the President, to depart out of the United 
 States, as is undertaken by the said act, entitled " an act concern- 
 ing aliens," is contrary to the Constitution, one amendment to 
 which has provided, that " no person shall be deprived of liberty 
 without the due process of law," and that another having pro- 
 vided, " that in all criminal prosecutions, the accused shall enjoy 
 the right to a public trial by an impartial jury, 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 defense," the same act undertaking to authorize the President 
 to remove a person out of the United States, who is under the 
 protection of the law, on his own suspicion, without accusation, 
 without jury, without public trial, without confrontation of the 
 witnesses against him, without having witnesses in his favor, with- 
 out defense, without counsel, is contrary to these provisions, also, 
 of the Constitution, is therefore not law, but utterly void and of 
 no force. 
 
 That transferring the power of judging any person who is under 
 the protection of the laws, from the courts to the President of the 
 United States, as is undertaken by the same act, concerning aliens, 
 is against the article of the Constitution which provides, that " the 
 judicial power of the United States shall be vested in courts, the 
 
682 KENTUCKY RESOLUTIONS. [1798 
 
 judges of which shall hold their offices during good behavior," 
 and that the said act is void for that reason also; and it is further 
 to be noted, that this transfer of judiciary power is to that magis- 
 trate of the General Government, who already possesses all the 
 executive, and a qualified negative in all the legislative powers. 
 
 7. Resolved, That the construction applied by the General 
 Government, (as is evinced by sundry of their proceedings,) to 
 those parts of the Constitution of the United States which dele- 
 gates to Congress a power to lay and collect taxes, duties, imposts, 
 and excises ; to pay the debts, and provide for the common 
 defense and general welfare of the United States, and to make 
 all laws which shall be necessary and proper for carrying into 
 execution the powers vested by the Constitution in the Govern- 
 ment of the United States, or any department thereof, goes te the 
 destruction of all the limits prescribed to their power by the Con- 
 stitution : that words meant by that instrument to be subsidiary 
 only to the execution of the limited powers, ought not to be so 
 construed as themselves to give unlimited powers, nor a part so to 
 be taken, as to destroy the whole residue of the instrument : that 
 the proceedings of the General Government under color of these 
 articles, will be a fit and necessary subject for revisal and cor- 
 rection at a time of greater tranquillity, while those specified in the 
 preceding resolutions call for immediate redress. 
 
 8. Resolved, That the preceding resolutions be transmitted to 
 the senators and representatives in Congress from this common- 
 wealth, who are hereby enjoined to present the same to their 
 respective houses, and to use their best endeavors to procure, at 
 the next session of Congress, a repeal of the aforesaid uncon- 
 stitutional and obnoxious acts. 
 
 9. Resolved, las/fy, That the Governor of this commonwealth be, 
 and is hereby authorized and requested to communicate the preced- 
 ing resolutions to the legislatures of the several states, to assure 
 them that this commonwealth considers union for specified na- 
 tional purposes, and particularly for those specified in their late 
 federal compact, to be friendly to the peace, happiness and pros- 
 perity of all the states: that, faithful to that compact, according 
 to the plain intent and meaning in which it was understood and 
 acceded to by the several parties, it is sincerely anxious for its 
 preservation : that it does also believe, that to take from the states 
 all the powers of self-government, and transfer them to a general 
 and consolidated government, without regard to the special obliga- 
 tions and reservations solemnly agreed to in that compact, is not 
 for the peace, happiness or prosperity of these states: and that 
 therefore, this commonwealth is determined, as it doubts not its 
 co-states are, tamely to submit to undelegated and consequently 
 unlimited powers in no man or body of men on earth : that if 
 the acts before specified should stand, these conclusions would 
 flow from them ; that the general government may place any act 
 they think proper on the list of crimes, and punish it themselves, 
 whether enumerated or not enumerated by the Constitution, as 
 cognizable by them; that they may transfer its cognizance to the 
 
1798] KENTUCKY RESOLUTIONS. 683 
 
 President or any other person, who may himself be the accuser, 
 counsel, judge and jury, whose suspicions may be the evidence, 
 his order the sentence, his officer the executioner, and his breast 
 the sole record of the transaction ; that a very numerous and 
 valuable description of the inhabitants of these states being, by 
 this precedent, reduced as outlaws to the absolute dominion of 
 one man, and the barrier of the Constitution thus swept away 
 from us all, no rampart now remains against the passions and 
 the power of a majority of Congress, to protect from a like ex- 
 portation or other more grievous punishment the minority of the 
 same body, the legislatures, judges, governors, and counselors of 
 the states, nor their other peaceable inhabitants who may venture 
 to reclaim the constitutional rights and liberties of the states and 
 people, or who, for other causes, good or bad, may be obnoxious 
 to the views, or marl^ed by the suspicions of the President, or be 
 thought dangerous to his or their elections, or other interests 
 public or personal : that the friendless alien has indeed been 
 selected as the safest subject of a first experiment ; but the citizen 
 will soon follow, or rather has already followed ; for, already has 
 a sedition-act marked him as its prey : that these and successive 
 acts of the same character, unless arrested on the threshold, may 
 tend to drive these states into revolution and blood, and will fur- 
 nish new calumnies against republican governments, and new 
 pretexts for those who wish it to be believed, that man cannot be 
 governed but by a rod of iron : that it would be a dangerous 
 delusion, were a confidence in the men of our choice, to silence 
 our fears for the safety of our rights : that confidence is everywhere 
 the parent of despotism ; free government is founded in jealousy, 
 and not in confidence ; it is jealousy and not confidence which 
 prescribes limited constitutions to bind down those whom we are 
 obliged to trust with power ; that our Constitution has accordingly 
 fixed the limits to which and no further our confidence may go; 
 and let the honest advocate of confidence read the alien and 
 sedition acts, and say if the Constitution has not been wise in 
 fixing limits to the government it created, and whether we should 
 be wise in destroying those limits ? Let him say what the govern- 
 ment is if it be not a tyranny, which the men of our choice have 
 conferred on the President, and the President of our choice has 
 assented to and accepted, over the friendly strangers, to whom 
 the mild spirit of our country and its laws had pledged hospitality 
 and protection: that the men of our choice have more respected 
 the bare suspicions of the President, than the solid rights of inno- 
 cence, the claims of justification, the sacred force of truth, and 
 the forms and substance of law and justice. In questions of 
 power, then, let no more be heard of confidence in man, but bind 
 him down from mischief, by the chains of the Constitution. That 
 this commonwealth does, therefore, call on its co-states for an 
 expression of their sentiments on the acts concerning aliens, and 
 for the punishment of certain crimes hereinbefore specified, plainly 
 declaring whether these acts are or are not authorized by the 
 Federal compact. And it doubts not that their sense will be so 
 
684 KENTUCKY RESOLUTIONS. [1798 
 
 announced, as to prove their attachment unaltered to limited 
 government, whether general or particular, and that the rights 
 and hberties of their co-states, will be exposed to no dangers by 
 remaining embarked on a common bottom with their own : That 
 they will concur with this commonwealth in considering the said 
 acts as so palpably against the Constitution, as to amount to an 
 undisguised declaration, that the compact is not meant to be the 
 measure of the powers of the general government, but that it will 
 proceed in the exercise over these states of all powers whatsoever: 
 That they will view this as seizing the rights of the states, and 
 consolidating them in the hands of the general government with 
 a power assumed to bind the states, (not merely in cases made 
 federal,) but in all cases whatsoever, by laws made, not with their 
 consent, but by others against their consent : That this would be 
 to surrender the form of government we have chosen, and to live 
 under one deriving its powers from Its own will, and not from 
 our authority ; and that the co-states, recurring to their natural 
 right in cases not made federal, will concur in declaring these 
 acts void and of no force, and will each unite with this common- 
 wealth, in requesting their repeal at the next session of Congress. 
 
 VIRGINIA RESOLUTIONS OF 1798.' 
 
 1. Resolved, that the General Assembly of Virginia doth une- 
 quivocally express a firm resolution to maintain and defend the 
 Constitution of the United States, and the Constitution of this 
 State, against every aggression, either foreign or domestic, and that 
 it will support the government of the United States in all measures 
 warranted by the former. 
 
 2. That this Assembly most solemnly declares a warm attach- 
 ment to the union of the States, to maintain which, it pledges all 
 its powers ; and that for this end it is its duty to watch over and 
 oppose every infraction of those principles, which constitute the 
 only basis of that union, because a faithful observance of them can 
 alone secure its existence, and the public happiness. 
 
 3. That this Assembly doth explicitly and peremptorily declare 
 that it views the powers of the Federal Government as resulting 
 from the compact, to which the States are parties, as limited by 
 the plain sense and intention of the instrument constituting that 
 compact ; as no further valid than they are authorized by the grants 
 enumerated In that compact ; and that in case of a deliberate, 
 palpable, and dangerous exercise of other powers not granted by 
 the said compact, the States, who are the parties thereto, have the 
 right, and are in duty bound, to interpose for arresting the progress 
 of the evil, and for maintaining within their respective limits, the 
 authorities, rights, and liberties appertaining to them. 
 
 4. That the General Assembly doth also express its deep regret 
 that a spirit has in sundry instances been manifested by the Federal 
 
 ' Written by James Madison. 
 
1798] VIRGINTA RESOLUTIONS. 685 
 
 Government, to enlarge its powers by forced constructions of the 
 constitutional charter which defines them ; and that indications 
 have appeared of a design to expound certain general phrases 
 (which,. having been copied from the very limited grant of powers 
 in the former articles of confederation, were the less liable to be 
 misconstrued), so as to destroy the meaning and effect of the 
 particular enumeration, which necessarily explains and limits the 
 general phrases, and so as to consolidate the States by degrees into 
 one sovereignty, the obvious tendency and inevitable result of 
 which would be to transform the present republican system of the 
 United States into an absolute, or at best, a mixed monarchy. 
 
 5. That the General Assembly doth particularly protest against 
 the palpable and alarming infractions of the Constitution, in the 
 two late cases of the " alien and sedition acts," passed at the last 
 session of Congress, the first of which exercises a power nowhere 
 delegated to the Federal Government ; and which by uniting legis- 
 lative and judicial powers to those of executive, subverts the 
 general principles of free government, as well as tlie particular 
 organization and positive provisions of the Federal Constitution ; 
 and the other of which acts exercises in like manner a power not 
 delegated by the Constitution, but on the contrary expressly and 
 positively forbidden by one of the amendments thereto ; a power 
 which more than any other ought to produce universal alarm, 
 because it is leveled against the right of freely examining public 
 characters and measures, and of free communication among the 
 people thereon, which has ever been justly deemed the only 
 effectual guardian of every other right. 
 
 6. That this State having by its convention which ratified the 
 federal Constitution, expressly declared, " that among other 
 essential rights, the liberty of conscience and of the press cannot 
 be canceled, abridged, restrained, or modified by any authority of 
 the United States," and from its extreme anxiety to guard these 
 rights from every possible attack of sophistry or ambition, having 
 with other States recommended an amendment for that purpose, 
 which amendment was in due time annexed to the Constitution, it 
 would mark a reproachful inconsistency and criminal degeneracy, 
 if an indifference were now shown to the most palpable violation 
 of one of the rights thus declared and secured, and to the estab- 
 lishment of a precedent which may be fatal to the other. 
 
 7. That the good people of this commonwealth having ever felt, 
 and continuing to feel the most sincere affection to their brethren of 
 the other States, the truest anxiety for establishing and perpetuating 
 the union of all, and the most scrupulous fidelity to that Constitu- 
 tion which is the pledge of mutual friendship, and the instrument 
 of mutual happiness, the General Assembly doth solemnly appeal 
 to the like dispositions of the other States, in confidence that they 
 will concur with this commonwealth in declaring, as it does hereby 
 declare, that the acts aforesaid are unconstitutional, and that the 
 necessary and proper measure will be taken by each, for co-operat- 
 ing with this State in maintaining unimpaired the authorities, rights, 
 and liberties reserved to the States respectively, or to the people. 
 
686 JEFFERSON'S LOUISIANA AMENDMENT. [1803 
 
 8. That the Governor be desired to transmit a copy of the fore- 
 going resolutions to the executive authority of each of the other 
 States, with a request that the same may be communicated to the 
 legislature thereof. And that a copy be furnished to each of the 
 senators and representatives representing this State in the Congress 
 of the United States. 
 
 JEFFERSON DRAFT OF AN AMENDMENT TO THE CON- 
 STITUTION, 1803. 
 
 The province of Louisiana is incorporated with the U. S. and 
 ftiade part thereof. The rights of occupancy in the soil, and of 
 self-government, are confirmed to the Indian inhabitants, as they 
 now exist. Pre-emption only of the portions rightfully occupied by 
 them, and a succession to the occupancy of such as they may 
 abandon, with the full rights of possession as well as of property 
 and sovereignty in whatever is not or shall cease to be so rightfully 
 occupied by them shall belong to the U. S. 
 
 The legislature of the Union shall have authority to exchange 
 the right of occupancy in portions where the U. S. have full right 
 for lands possessed by Indians within the U. S. on the East side 
 of the Missisipi ; to exchange lands on the East side of the river 
 for those on the West side thereof and above the latitude of 31 
 degrees ; to maintain in any part of the province such militaiy posts 
 as may be requisite for peace or safety ; to exercise police over all 
 persons therein, not being Indian inhabitants ; to work salt springs, 
 or mines of coal, metals and other minerals within the possession 
 of the U. S. or in any others with the consent of the possessors ; 
 to regulate trade and intercourse between the Indian inhabitants 
 and all other persons ; to explore and ascertain the geography of 
 the province, its productions and other interesting circumstances ; 
 to open roads and navigation therein where necessary for beneficial 
 communication ; and to establish agencies and factories therein 
 for the cultivation of commerce, peace and good understanding 
 with the Indians residing there. 
 
 The legislature shall have no authority to dispose of the lands of 
 the province otherwise than is hereinbefore permitted, until a new 
 Amendment of the constitution shall give that authority. Except 
 as to that portion thereof which lies south of the latitude of 31 
 degrees; which whenever they deem expedient, they may erect 
 into a territorial Government, either separate or as making part 
 with one on the eastern side of the river, vesting the inhabitants 
 thereof with all the rights possessed by other territorial citizens 
 of the U. S. 
 
 ABSTRACT OF DECISION IN THE CASE OF MARBURY VS. 
 MADISON, 1803.' 
 
 The question whether an act repugnant to the constitution can 
 become a law of the land, is a question deeply interesting to the 
 
 ' In full in I Cranch 137. 
 
1803] OPINION IN MARBURY VS. MADISON. 687 
 
 United States ; but happily not of an intricacy proportioned to its 
 interest. It seems only necessary to recognize certain principles 
 
 supposed to have been long and well established, to decide it 
 
 That the people have an original right to establish for their future 
 government such principles as in their opinion shall most conduce 
 to their own happiness, is the basis on which the whole American 
 fabric has been erected. The original supreme will organizes the 
 government and assigns to the different departments Iheir respec- 
 tive powers. . . . The powers of the legislature are deiined and 
 limited ; and that those limits may not be mistaken or forgotten, 
 the constitution is written. To what purpose are powers Umited 
 and to what purpose is that limitation committed to writing, if 
 those limits may at any time be passed by those intended to be 
 restrained.' .... The constitution is either a superior, paramount 
 law, unchangeable by ordinary means, or it is on a level with 
 ordinary legislative acts, and hke any other act is alterable when 
 the legislature shall please to alter it. If the former part of the 
 alternative be true, then a legislative act contrary to the constitu- 
 tion is not law. If the latter part be true, then written constitu- 
 tions are absurd attempts on the part of the people»to limit a power 
 in its own nature illimitable. ... If an act of the legislature 
 repugnant to the constitution is void, does it, notwithstanding its 
 validity, bind the courts and oblige them to give it effect ? Or, in 
 other words, though it be not law, does it constitute a rule as 
 operative as though it was a law } This would be to overthrow in 
 fact what was established in theory; and would seem at first view 
 an absurdity too gross to be insisted upon. It shall, however, 
 receive a more attentive consideration. It is emphatically the 
 province and duty of the judicial department to say what the 
 law is. Those who apply the rule to particular cases must of 
 necessity expound and interpret that rule. If two laws conflict 
 with each other, the courts must decide upon the operation of each. 
 So if a law be in opposition to the Constitution ; if both the law 
 and the Constitution apply to a particular case, so that the court 
 must either decide that case conformably to the law, disregarding 
 the Constitution, or conformably to the Constitution, disregarding 
 the law — the court must determine which of these confholing rules 
 governs the case. This is of the very essence of judicial duty. 
 If, then, the courts are to regard the Constitution, and the Con- 
 stitution is Superior to any ordinary act of the legislature, the 
 Constitution and not such ordinary act, must govern the case to 
 which they both apply. Those, then, who controvert the principle 
 that the Constitution is to be considered in court as a paramount 
 law, are reduced to the necessity of maintaining that courts must 
 close their eyes on the Constitution and see only the law. 
 
 AMENDMENTS TO THE CONSTITUTION PROPOSED BY THE 
 HARTFORD CONVENTION, 1814. 
 
 Therefore resolved. — That it be and hereby is recommended to 
 the Legislatures of the several States represented in this Conven- 
 
688 AMENDMENTS OF HAR 'I FORD CONVENTION. [1814 
 
 tion, to adopt all such measures as may be necessary effectually 
 to protect the citizens of said States from the operation and effects 
 of all acts which have been or may be passed by the Congress of 
 the United States, which shall contain provisions, subjecting the 
 militia or other citizens to forcible drafts, conscriptions, or impress- 
 ments, not authorized by the Constitution of the United States. 
 
 Resolved. — That it be and hereby is recommended to the said 
 Legislatures, to authorize an immediate and earnest application to 
 be made to the Government of the United States, requesting their 
 consent to some arrangement, whereby the said States may, 
 separately or in concert, be empowered to assume upon themselves 
 the defense of their territory against the enemy ; and a reasonable 
 portion of the taxes, collected within said States, may be paid into 
 the respective treasuries thereof, and appropriated to the payment 
 of the balance due said States, and to the future defense of the 
 same. The amount so paid into the said treasuries to be credited, 
 and the disbursements made as aforesaid to be charged to the 
 United States. 
 
 Resolved. — That it be, and it hereby is, recommended to the Leg- 
 islatures of the aforesaid States, to pass laws (where it has not 
 already been done) authorizing the Governors or Commanders-in 
 Chief of their militia to make detachments from the same, or to 
 form voluntary corps, as shall be most convenient and conformable 
 to their Constitutions, and to cause the same to be well armed, 
 equipped and disciplined, and held in readiness for service ; and 
 upon the request of the Governor of either of the other States, to 
 employ the whole of such detachment or corps, as well as the 
 regular forces of the State, or such part thereof as may be required 
 and can be spared consistently with the safety of the State, in 
 assisting the State, making such request to repel any invasion 
 thereof which shall be made or attempted by the public enemy. 
 
 Resolved. — That the following amendments of the Constitution 
 of the United States, be recommended to the States as aforesaid, 
 to be proposed by them for adoption by the State Legislatures, and, 
 in such cases as may be deemed expedient, by a Convention chosen 
 by the people of each State. 
 
 And it is further recommended, that the said States shall perse- 
 vere in their efforts to obtain such amendments, until the same 
 shall be effected. 
 
 First. — Representatives and direct taxes shall be apportioned 
 among the several States which may be included within this union, 
 according to their respective numbers of free persons, including 
 those bound to serve for a term of years, and excluding Indians 
 not taxed, and all other persons. 
 
 Second. — No new State shall be admitted into the union by 
 Congress in virtue of the power granted by the Constitution, with- 
 out the concurrence of two-thirds of both Houses. 
 
 Third. — Congress shall not have power to lay any embargo on 
 the ships or vessels of the citizens of the United States, in the 
 ports or harbors thereof, for more than sixty days. 
 
 Fourth. — Congress shall not have power,' without the concur- 
 
1814] AMENDMENTS OF HARTFORD CONVENTION. 689 
 
 rence of two-thirds of both Houses, to interdict the commercial 
 intercourse between the United States and any foreign nation or 
 the dependencies thereof. 
 
 Fifth. — Congress shall not make or declare war, or authorize 
 acts of hostility against any foreign nation, without the concur- 
 rence of two-thirds of both Houses, except such acts of hostility 
 be in defense of the territories of the United States when actually 
 invaded. 
 
 Sixth. — No person who shall hereafter be naturalized, shall be 
 eligible as a member of the Senate or House of Representatives of 
 the United States, nor capable of holding any civil office under the 
 authority of the United States. 
 
 Seventh. — The same person shall not be elected President of the 
 United States a second time ; nor shall the President be elected 
 from the same State two terms in succession. 
 
 Resolved. — That if the application of these States to the govern- 
 ment of the United States, recommended in a foregoing Resolu- 
 tion, should be unsuccessful, and peace should not be concluded, 
 and the defense of these States should be neglected, as it has been 
 since the commencement of the war, it will in the opinion of this 
 Convention be expedient for the Legislatures of the several States 
 to appoint Delegates to another Convention, to meet at Boston, in 
 the State of Massachusetts, on the third Thursday of June next, 
 with such powers and instructions as the exigency of a crisis so 
 momentous may require. 
 
 THE MISSOURI COMPROMISE, 1820. 
 
 An act to authorize the people of the Missouri territory to form a 
 constitution and state government, and for the admission of such 
 state into the Union on an equal footing with the original states, 
 and to prohibit slavery in certain territories. 
 Section i. Be it enacted by the Senate and House of Repre- 
 sentatives of the United States of America in Congress assembled, 
 That the inhabitants of that portion of the Missouri territory 
 included within the boundaries hereinafter designated, be, and 
 they are hereby authorized to form for themselves a constitution 
 and state government ; and to assume such name as they shall 
 deem proper; and the said state when formed, shall be admitted 
 into the Union upon an equal footing with the original states, in 
 all respects whatsoever. . . . 
 
 Sec. 8. And be it furtlier enacted. That in all that territory 
 ceded by France to the United States, under the name of Louisi- 
 ana, which lies north of thirty-six degrees and thirty minutes north 
 latitude, not included within the limits of the state contemplated 
 by this act, slavery and involuntary servitude, otherwise than in the 
 punishment of crimes whereof the parties shall have been duly 
 convicted, shall be, and is hereby forever prohibited ; Provided 
 always. That any person escaping into the same, from whom labor 
 or service is lawfully claimed, in any state or territory of the United 
 
690 MISSOURI COMPROMISE. [1820 
 
 States, such fugitive may be lawfully reclaimed and conveyed to 
 the person claiming his or her labor or service as aforesaid. 
 Approved 6th March, 1820. 
 
 SOUTH CAROLINA ORDINANCE OF NULLIFICATION, 1832. 
 
 An ordinance to nullify certain acts of the Congress of the United 
 
 States, purporting to be laws laying duties and imposts on the 
 
 importation of foreign commodities. 
 
 Whereas the Congress of the United States by various acts, 
 purporting to be acts laying duties and imposts on foreign imports, 
 but in reality intended for the protection of domestic manufactures, 
 and the giving of bounties to classes and individuals engaged in 
 particular employments, at the expense and to the injury and 
 oppression of other classes and individuals, and by wholly exempt- 
 ing from taxation certain foreign commodities, such as are not 
 produced or manufactured in the United States, to afford a pretext 
 for imposing higher and excessive duties on articles similar to 
 those intended to be protected, hath exceeded its just powers 
 under the constitution, which confers on it no authority to afford 
 such protection, and hath violated the true meaning and intent of 
 the constitution, which provides for equality in imposing the 
 burdens of taxation upon the several States and portions of the 
 confederacy : And whereas the said Congress, exceeding its just 
 power to impose taxes and collect revenue for the purpose of 
 effecting and accomplishing the specific objects and purposes 
 which the constitution of the United States authorizes it to effect 
 and accomplish, hath raised and collected unnecessary revenue 
 for objects unauthorized by the constitution. 
 
 We, therefore, the people of the State of South Carolina, in con- 
 vention assembled, do declare and ordain and it is hereby declared 
 and ordained, that the several acts and parts of acts of the Con- 
 gress of the United States, purporting to be laws for the imposing 
 of duties and imposts on the importation of foreign commodities, 
 and now having actual operation and effect within the United States, 
 and, more especially, an act entitled " An act in alteration of the 
 several acts imposing duties on imports," approved on the nine- 
 teenth day of May, one thousand eight hundred and twenty-eight, 
 and also an act entitled " An act to alter and amend the several 
 acts imposing duties on imports," approved on the fourteenth day 
 of July, one thousand eight hundred and thirty-two, are unauthor- 
 ized by the constitution of the United States, and violate the true 
 meaning and intent thereof and are null, void, and no law, nor 
 binding upon this State, its officers or citizens ; and all promises, 
 contracts, and obligations, made or entered into, or to be made or 
 entered into, with purpose to secure the duties imposed by said 
 acts, and all judicial proceedings which shall be hereafter had in 
 affirmance thereof, are and shall be held utterly null and void. 
 
 And it is further ordained, that it shall not be lawful for any of 
 the constituted authorities, whether of this State or of the United 
 States, to enforce the payment of duties imposed by the said acts 
 
1882] S. C. NULLIFICATION ORDINANCE. 691 
 
 within the limits of this State ; but it shall be the duty of the leg- 
 islature to adopt such measures and pass such acts as may be nec- 
 essary to give full effect to this ordinance, and to prevent the 
 enforcement and arrest the operation of the said acts and parts of 
 acts of the Congress of the United States within the limits of this 
 State, from and after the first day of February next, and the duties 
 of all other constituted authorities, and of all persons residing or 
 being within the limits of this State, and they are hereby required 
 and enjoined to obey and give effect to this ordinance, and such 
 acts and measures of the legislature as may be passed or adopted 
 in obedience thereto. 
 
 And it is further ordained, that in no case of law or equity, de- 
 cided in the courts of this State, wherein shall be drawn in ques- 
 tion the authority of this ordinance, or the validity of such act or 
 acts of the legislature as may be passed for the purpose of giving 
 eflect thereto, or the validity of the aforesaid acts of Congress, 
 imposing duties, shall any appeal be taken or allowed to the 
 Supreme Court of the United States, nor shall any copy of the 
 record be permitted or allowed for that purpose ; and if any such 
 appeal shall be attempted to be taken, the courts of this State 
 shall proceed to execute and enforce their judgments according to 
 the laws and usages of the State, without 'reference to such at- 
 tempted appeal, and the person or persons attempting to take such 
 appeal may be dealt with as for a contempt of the court. 
 
 And it is further ordained, that all persons now holding any 
 office of honor, profit, or trust, civil or military, under this State 
 (members of the legislature excepted), shall, within such time, and 
 in such manner as the legislature shall prescribe, take an oath well 
 and truly to obey, execute, and enforce this ordinance, and such act 
 or acts of the legislature as may be passed in pursuance thereof, 
 according to the true intent and meaning of the same ; and on the 
 neglect or omission of any such person or persons so to do, his or 
 their office or offices shall be forthwith vacated, and shall be filled 
 up as if such person or persons were dead or had resigned ; and 
 no person hereafter elected to any office of honor, profit, or trust, 
 civil or military (members of the legislature excepted), shall, until 
 the legislature shall otherwise provide and direct, enter on the exe- 
 cution of his office, or be in any respect competent to discharge 
 the duties thereof until he shall, in like manner, have taken a sim- 
 ilar oath ; and no juror shall be impaneled in any of the courts 
 of this State, in any cause in which shall be in question this ordi- 
 nance, or any act of the legislature passed in pursuance thereof, un- 
 less he shall first, in addition to the usual oath, have taken an oath 
 that he will well and truly obey, execute, and enforce this ordi- 
 nance, and such act or acts of the legislature as may be passed to 
 carry the same into operation and effect, according to the true in- 
 tent and meaning thereof. 
 
 And we, the people of South Carolina, to the end that it may be 
 fully understood by the government of the United States, and the 
 people of the co-States, that we are determined to maintain this 
 our ordinance and declaration, at every hazard, do further declare 
 
692 5. C. NULLIFICATION ORDINANCE. [1832 
 
 that we will not submit to the application of force on the part of 
 the federal government, to reduce this State to obedience ; but that 
 we will consider the passage, by Congress, of any act authorizing 
 the employment of a military or naval force against the State of 
 South Carolina, her constitutional authorities or citizens ; or any 
 act abolishing or closing the ports of this State, or any of them, or 
 otherwise obstructing the free ingress and egress of vessels to and 
 from the said ports, or any other act on the part of the federal gov- 
 ernment, to coerce the State, shut up her ports, destroy or harass her 
 commerce or to enforce the acts hereby declared to be null and 
 void, otherwise than through the civil tribunals of the country, as 
 inconsistent with the longer continuance of South Carolina in the 
 Union ; and that the people of this State will henceforth hold 
 themselves absolved from all further obligation to maintain or 
 preserve their political connection with the people of the other 
 States ; and will forthwith proceed to organize a separate govern- 
 ment, and do all other acts and things which sovereign and inde- 
 pendent States may of right do. 
 
 Done in convention at Columbia, the twenty-fourth day of No- 
 vember, in the year of our Lord one thousand eight hundred and 
 thirty-two, and in the fifty-seventh year of the Declaration of the 
 Independence of the United States of America. 
 
 PRESIDENT JACKSON'S PROCLAMATION, 1832.' 
 
 Whereas a convention, assembled in the State of South Caro- 
 lina, have passed an ordinance, by which they declare " that the 
 several acts and parts of acts of the Congress of the United States, 
 purporting to be laws for the imposing of duties and imposts on 
 the importation of foreign commodities, and now having actual 
 operation and effect within the United States, and more espe- 
 cially ' two acts for the same purposes, passed on the 29th of May, 
 1828, and on the 14th of July, 1832,' are unauthorized by the 
 Constitution of the United States, and violate the true meaning 
 and intent thereof, and are null and void, and no law," nor bind- 
 ing on the citizens of that State or its officers ; and by the said 
 ordinance it is further declared to be unlawful for any of the con- 
 stituted authorities of the State, or of the United States, to enforce 
 the payment of the duties imposed by the said acts within the 
 same State, and that it is the duty of the legislature to pass such 
 laws as may be necessary to give full effect to the said ordinances : 
 
 And whereas, by the said ordinance it is further ordained, that, 
 in no case of law or equity, decided in the courts of said State, 
 wherein shall be drawn in question the validity of the said ordi- 
 nance, or of the acts of the legislature that may be passed to give it 
 effect, or of the said laws of the United States, no appeal shall be 
 allowed to the Supreme Court of the United States, nor shall any 
 
 ' Written by Edward Livingston, 
 
1832] JACKSON'S PROCLAMATION. 693 
 
 copy of the record be permitted or allowed for that purpose ; and 
 that any person attempting to take such appeal, shall be punished 
 as for a contempt of court : 
 
 And, finally, the said ordinance declares that the people of South 
 Carolina will maintain the said ordinance at every hazard ; and 
 that they will consider the passage of any act by Congress abol- 
 ishing or closing the ports of the said State, or otherwise obstruct- 
 ing the free ingress or egress of vessels to and from the said ports, 
 or any other act of the Federal Government to coerce the State, 
 shut up her ports, destroy or harass her commerce, or to enforce 
 the said acts otherwise than through the civil tribunals of the 
 country, as inconsistent with the longer continuance of South Car- 
 olina in the Union ; and that the people of .the said State will 
 thenceforth hold themselves absolved from all further obligation to 
 maintain or preserve their political connection with the people of 
 the other States, and will forthwith proceed to organize a separate 
 government, and do all other acts and things which sovereign and 
 independent States may of right do : 
 
 And whereas the said ordinance prescribes to the people of 
 South Carolina a course of conduct in direct violation of their duty 
 as citizens of the United States, contrary to the laws of their coun- 
 try, subversive of its Constitution, and having for its object the 
 destruction of the Union — that Union, which, coeval with our politi- 
 cal existence, led our fathers, without any other ties to unite 
 them than those of patriotism and common cause, through the 
 sanguinary struggle to a glorious independence — that sacred 
 Union, hitherto inviolate, which, perfected by our happy Constitu- 
 tion, has brought us, by the favor of Heaven, to a state of pros- 
 perity at home, and high consideration abroad, rarely, if ever, 
 equaled in the history of nations ; to preserve this bond of our 
 political existence from destruction, to maintain inviolate this state 
 of national honor and prosperity, and to justify the confidence my 
 fellow-citizens have reposed in me, I, Andrew Jackson, President 
 of the United States, have thought proper to issue this my Proc- 
 lamation, stating my views of the Constitution and laws appli- 
 cable to the measures adopted by the Convention of South 
 Carolina, and to the reasons they have put forth to sustain them, 
 declaring the course which duty will require me to pursue, and,, ap- 
 pealing to the understanding and patriotism of the people, warn 
 them of the consequences that must inevitably result from an ob- 
 servance of the dictates of the Convention. 
 
 Strict duty would require of me nothing more than the exercise 
 of those powers with which I am now, or may hereafter be, in- 
 vested, forpi-eserving the Union, and for the execution of the laws. 
 But the imposing aspect which opposition has assumed in this 
 case, by clothing itself with State authority, and the deep interest 
 which the people of the United States must all feel in preventing a 
 resort to stronger measures, while there is a hope that anything 
 will be yielded to reasoning and remonstrances, perhaps demand, 
 and will certainly justify, a full exposition to South Carohna and 
 the nation of the views I entertain of this important question, as 
 
694 JACKSON'S PROCLAMATION. [1832 
 
 well as a distinct enunciation of the course which my sense of duty 
 will require me to pursue. 
 
 The ordinance is founded, not on the indefeasible right of resist- 
 ing acts which are plainly unconstitutional, and too oppressive to 
 be endured, but on the strange position that any one State may not 
 only declare an act of Congress void, but prohibit its execution — 
 that they may do this consistently with the Constitution — that the 
 true construction of that instrument permits a State to retain its 
 place in the Union, and yet be bound by no other of its laws than 
 those it may choose to consider as constitutional. It is true they 
 add, that to justify this abrogation of a law, it must be palpably 
 contrary to the Constitution ; but it is evident, that to give the 
 right of resisting laws of that description, coupled with the uncon- 
 trolled right to decide what laws deserve that character, is to give 
 the power of resisting all laws. For, as by the theory, ther&is no 
 appeal, the reasons alleged by the State, good or bad, must pre- 
 vail. If it should be said that public opinion is a sufficient check 
 against the abuse of this power, it may be asked why it is not 
 deemed a sufficient guard against the passage of an unconstitu- 
 tional act by Congress. There is, however, a restraint in this last 
 case, which makes the assumed power of a State more indefensi- 
 ble, and which does not exist in the other. There are two appeals 
 from an unconstitutional act passed by Congress — one to the judi- 
 ciary, the other to the people and the States. There is no appeal 
 from the State decision in theory ; and the practical illustration 
 shows that the courts are closed against an application to review 
 it, both judges and jurors being sworn to decide in its favor. But 
 reasoning on this subject is superfluous, when our social compact 
 in express terms declares, that the laws of the United States, its 
 Constitution, and treaties made under it, are the supreme law of 
 the land ; and for greater caution adds, " that the judges in every 
 State shall be bound thereby, anything in the Constitution or laws 
 of any State to the contrary notwithstanding." And it may be as- 
 serted, without fear of refutation, that no federative government 
 could exist without a similar provision. Look, for a moment, to 
 the consequence. If South Carolina considers the revenue laws 
 unconstitutional, and has a right to prevent their execution in the 
 port of Charleston, there would be a clear constitutional objection 
 to their collection in every other port, and no revenue could be col- 
 lected anywhere ; for all imposts must be equal. It is no answer 
 to repeat that an unconstitutional law is no law, so long as the 
 question of its legality is to be decided by the State itself ; for 
 every law operating injuriously upon any local interest will be per- 
 haps thought, and certainly represented, as unconstitutional, and, 
 as has been shown, there is no appeal. 
 
 If this doctrine had been established at an earlier day, the Union 
 would have been dissolved in its infancy. The excise law in Penn- 
 sylvania, the embargo and non-intercourse law in the Eastern 
 States, the carriage tax in Virginia, were all deemed unconstitu- 
 tional, and were more unequal in their operation than any of the 
 laws now complained of; but, fortunately, none of those States 
 
1832] JACKSON'S PROCLAMATION. 695 
 
 discovered that they had the right now claimed by South Carolina. 
 The war into which we were forced, to support the dignity of the 
 nation and the rights of our citizens, might have ended in defeat 
 and disgrace, instead of victory and honor, if the States, who sup- 
 posed iwa ruinous and unconstitutional measure, had thought they 
 possessed the right of nullifying the act by which it was declared, 
 and denying supphes for its prosecution. Hardly and unequally 
 as those measures bore upon several members of the Union, to 
 the legislatures of none did this efficient and peaceable remedy, as 
 it is called, suggest itself. The discovery of this important feature 
 in our Constitution was reserved to the present day. To the states- 
 men of South Carolina belongs the invention, and upon the citi- 
 zens of that State will, unfortunately, fall the evils of reducing it to 
 practice. 
 
 If the doctrine of a State veto upon the laws of the Union car- 
 ries with it internal evidence of its impracticable absurdity, our 
 constitutional history will also afford abundant proof that it would 
 have been repudiated with indignation had it been proposed to 
 form a feature in our Government. 
 
 In our colonial state, although dependent on another power, we 
 very early considered ourselves as connected by common interest 
 with each other. Leagues were formed for common defense, and 
 before the Declaration of Independence, we were known in our 
 aggregate character as the United Colonies of America. That de- 
 cisive and important, step was taken jointly. We declared our- 
 selves a nation by a joint, not by several acts ; and when the terms 
 of our confederation were reduced to form, it was in that of a 
 solemn league of several States, by which they agreed that they 
 would, collectively, form one nation, for the purpose of conducting 
 some certain domestic concerns, and all foreign relations. In the 
 instrument forming that Union, is found an article which declares 
 that " every State shall abide by the determinations of Congress on 
 all questions which by that Confederation should be submitted to 
 them." 
 
 Under the Confederation, then, no State could legally annul a 
 decision of the Congress, or refuse to submit to its execution ; but 
 no provision was made to enforce these decisions. Congress made 
 requisitions, but they were not complied with. The Government 
 could not operate on individuals. They had no judiciary, no means 
 of collecting revenue. 
 
 But the defects of the C(^nfederation need not be detailed. Un- 
 der its operation we could scarcely be called a nation. We had 
 neither prosperity at home nor consideration abroad. This state 
 of things could not be endured, and our present happy Constitu- 
 tion was formed, but formed in vain, if this fatal doctrine prevails. 
 It was formed for important objects that are announced in the pre- 
 amble made in the name and by the authority of the people of the 
 United States, whose delegates framed, and whose conventions 
 approved it. 
 
 The most important among these objects, that which is placed 
 first in rank, on which all the others rest, is " to form a more 
 
696 JACKSON'S PROCLAMATION. [1832 
 
 perfect Uttion." Now, is it possible that, even if there were no 
 express provision giving supremacy to the Constitution and laws 
 of the U^iited States over those of the States, it can be conceived 
 that an instrument made for the purpose of "forming a more 
 perfect Union " tlian that of the confederation, could be. so con- 
 structed by the assembled wisdom of our country as to substitute 
 for that confederation a form of government, dependent for its ex- 
 istence on the local interest, the party spirit of a State, or of a pre- 
 vailing faction in a State ? Every man, of plain, unsophisticated 
 understanding, who hears the question, will give such an answer 
 as will preserve the Union. Metaphysical subtlety, in pursuit of 
 an impracticable theory, could alone have devised one that is cal- 
 culated to destroy it. 
 
 I consider, then, the power to annul a law of the United States, 
 assumed by one State, incompatible with the existence of the 
 Union, contradicted expressly by the letter of the Constitution, 
 unauthorized by its spirit, inconsistent with every principle on 
 which it was founded, and destructive of the great object for 
 which it was formed. 
 
 After this general view of the leading principle, we must exam- 
 ine the particular application of it which is made in the ordinance. 
 
 The preamble rests its justification on these grounds : It as- 
 sumes as a fact, that the obnoxious laws, although they purport 
 to be laws for raising revenue, were in reality intended for the pro- 
 tection of manufactures, which purpose it aggerts to be unconstitu- 
 tional ; that the operation of these laws is unequal ; that the 
 amount raised by them is greater than is required by the wants of 
 the Government ; and, finally, that the proceeds are to be applied 
 to objects unauthorized by the Constitution. These are the only 
 causes alleged to justify an open opposition to the laws of the 
 country, and a threat of seceding from the Union, if any attempt 
 should be made to enforce them. The first virtually acknowledges 
 that the law in question was passed under a power expressly given 
 by the Constitution, to lay and collect imposts ; but its constitu- 
 tionality is drawn in question from the motives of those who passed 
 it. However apparent this purpose may be in the present case, 
 nothing can be more dangerous than to admit the position that an 
 unconstitutional purpose, entertained by the members who assent 
 to a law enacted under a constitutional power, shall make that law 
 void ; for how is that purpose to be ascertained ? Who is to make 
 the scrutiny? How often may bad purposes be falsely imputed? 
 In how many cases are they concealed by false professions ? In 
 how many is no declaration of motive made ? Admit this doctrine, 
 and you give to the States an uncontrolled right to decide, and 
 every law may be annulled under this pretext. If, therefore, the 
 absurd and dangerous doctrine should be admitted, that a State 
 may annul an unconstitutional law, or one that it deems such, it 
 will not apply to the present case. 
 
 The next objection is, that the laws in question operate un- 
 equally. This objection may be made with truth to every law that 
 has been or can be passed. The wisdom of man never yet con- 
 
1832] JACKSON'S PROCLAMATION. 697 
 
 trived a system of taxation that would operate with perfect equal- 
 ity. If the unequal operation of a law makes it unconstitutional, 
 and if all laws ofthat description may be abrogated by any State 
 for that cause, then, indeed, is the federal Constitution unworthy 
 of the slightest effort for its preservation. We have hitherto relied 
 on it as the perpetual bond of our Union. We have received it as 
 the work of the assembled wisdom of the nation. We have trusted 
 to it as to the sheet-anchor of our safety, in the stormy times of 
 conflict with a foreign or domestic foe. We have looked to it with 
 sacred awe as the palladium of our liberties, and with all the 
 solemnities of religion have pledged to each other our lives and 
 fortunes here, and our hopes of happiness hereafter, in its defense 
 and support. Were we mistaken, my countrymen, in attaching 
 this importance to the Constitution of our country } Was our de- 
 votion paid to the wretched, inefificient, clumsy contrivance, which 
 this new doctrine would make it ? Did we pledge ourselves to the 
 support of an airy nothing — a bubble that must be blown away by 
 the first breath of disaffection ? Was this self-destroying, visionary 
 theory the work of the profound statesmen, the exalted patriots, to 
 whom the task of constitutional reform was intrusted ? Did the 
 name of Washington sanction, did the States deliberately ratify, 
 such an anomaly in the history of fundamental legislation? No. 
 We were not mistaken. The letter of this great instrument is free 
 from this radical fault ; its language directly contradicts the impu- 
 tation; its spirit, its evident intent, contradicts it. No, we did not err. 
 Our Constitution does not contain the absurdity of giving power to 
 make laws, and another power to resist them. The sages, whose 
 memory will always be reverenced, have given us a practical, and, 
 as they hoped, a permanent constitutional compact. The Father 
 of his Country did not affix his revered name to so palpable an ab- 
 surdity. Nor did the States, when they severally ratified it, do so 
 under the impression that a veto on the laws of the United States 
 was reserved to them, or that they could exercise it by application. 
 Search the debates in all their conventions — examine the speeches 
 of the most zealous opposers of federal authority — look at the 
 amendments that were proposed. They are all silent — not a syl- 
 lable uttered, not a vote given, not a motion made, to correct the 
 explicit supremacy given to the laws of the Union over those of 
 the States, or to show that implication, as is now contended, could 
 defeat it. No, we have not erred ! The Constitution is still the 
 object of our reverence, the bond of our Union, our defense in 
 danger, the source of our prosperity in peace. It shall descend, as 
 we have received it, uncorrupted by sophistical construction, to our 
 posterity ; and the sacrifices of local interest, of State prejudices, 
 of personal animosities, that were made to bring it into existence, 
 will again be patriotically offered for its support. 
 
 The two remaining objections made by the ordinance to these 
 laws are, that the sums intended to be raised by them are greater 
 than are required, and that the proceeds will be unconstitutionally 
 employed. The Constitution has given expressly to Congress the 
 right of raising revenue, and of determining the sum the public exi- 
 
698 JACKSON'S PROCLAMATION. tl832 
 
 gencies will require. The States have no control over the exercise 
 of this right otlier than that which results from the power of chang- 
 ing the representatives who abuse it, and thus procure redress. 
 Congress may undoubtedly abuse this discretionary power, but the 
 same may be said of others with which they are vested. Yet the 
 discretion must exist somewhere. The Constitution has given it to 
 the representatives of all the people, checked by the representatives 
 of the States, and by the executive power. The South Carolina 
 construction gives it to the legislature, or the convention of a sin- 
 gle State, where neither the people of the different States, nor 
 the States in their separate capacity, nor the chief magistrate 
 elected by the people, have any representation. Which is the most 
 discreet disposition of the power ? I do not ask you, fellow-citi- 
 zens, which is the constitutional disposition — that instrument 
 speaks a language not to be misunderstood. But if you were as- 
 sembled in general convention, which would you think the safest 
 depository of this discretionary power in the last resort ? Would 
 you add a clause giving it to each of the States, or would you sanc- 
 tion the wise provisions already made by your Constitution .' If 
 this should be the result of your deliberations when providing for 
 the future, are you — can you — be ready to risk all that we hold 
 dear, to establish, for a temporary and a local purpose, that which 
 you must acknowledge to be destructive, and even absurd, as a 
 general provision ? Carry out the consequences of this right 
 vested in the different States, and you must perceive that the crisis 
 your conduct presents at this day would recur whenever any Jaw 
 of the United States displeased any of the States, and that we 
 should soon cease to be a nation. 
 
 The ordinance, with the same knowledge of the future that 
 characterizes a former objection, tells you that the proceeds of the 
 tax will be unconstitutionally applied. If this could be ascertained 
 with certainty, the objection would, with more propriety, be reserved 
 for the law so applying the proceeds, but surely cannot be urged 
 against the laws levying the duty. 
 
 These are the allegations contained in the ordinance. Examine 
 them seriously, my fellow-citizens — jijdge for yourselves. I appeal 
 to you to determine whether they are so clear, so convincing, as to 
 leave no doubt of their correctness ; and even if you should come 
 to this conclusion, how far they jQstify the reckless, destructive 
 course which you are directed to pursue. Review these objections, 
 and the conclusions drawn from them once more. What are they? 
 Every law, then, for raising revenue, according to the South Caro- 
 lina ordinance, may be rightfully annulled, unless it be so framed 
 as no law ever will or can be framed. Congress have a right to 
 pass laws for raising revenue, and each State has a right to oppose 
 their execution — two rights directly opposed to each other ; and 
 yet is this absurdity supposed to be contained in an instrument 
 drawn for the express purpose of avoiding collisions between the 
 States and the general government, by an assembly of the most 
 enlightened statesmen and purest patriots ever embodied for a 
 similar purpose. 
 
1838] JACKSON'S PROCLAMATION. 699 
 
 In vain have these sages declared that Congress shall have power 
 to lay and collect taxes, duties, imposts, and excises — in vain have 
 they provided that they shall have power to pass laws which shall 
 be necessary and proper to carry those powers into execution, that 
 those laws and that Constitution shall be the " supreme law of the 
 land ; and that the judges in every State shall be bound thereby, 
 anything in the constitution or laws of any State to the contrary 
 notwithstanding." In vain have the people of the several States 
 solemnly sanctioned these provisions, made them their paramount 
 law, and individually sworn to support them whenever they were 
 called on to execute any office. 
 
 Vain provisions ! Ineffectual restrictions ! Vile profanation of 
 oaths ! Miserable mockery of legislation ! If a bare majority of 
 the voters in any one State may, on a real or supposed knowledge 
 of the intent with which a law has been passed, declare themselves 
 free from its operation — say here it gives too little, there too much, 
 and operates unequally — here it suffers articles to be free that 
 ought to be taxed, there it taxes those that ought to be free — in 
 this case the proceeds are intended to be applied to purposes which 
 we do not approve, in that the amount raised is more than is wanted. 
 Congress, it is true, are invested by the Constitution with the right 
 of deciding these questions according to their sound discretion. 
 Congress is composed of the representatives of all the States, and 
 of all the people of all the states ; but we, part of the people of 
 one State, to whom the Constitution has given no power on the 
 subject, from whom it has expressly taken it away — we, who have 
 solemnly agreed that this Constitution shall be our law — we, most 
 of whom have sworn to support it — we now abrogate this law, and 
 swear, and force others to swear, that it shall not be obeyed — and 
 we do this, not because Congress have no right to pass such laws ; 
 this we do not allege ; but because they have passed them with 
 •improper views. They are unconstitutional from the motives of 
 those who passed them, which we can never with certainty know, 
 from their unequal operation ; although it is impossible from the 
 nature of things that they should be equal — and from the disposi- 
 tion which we presume may be made of their proceeds, although 
 that disposition has not been declared. This is the plain meaning of 
 the ordinance in relation to laws which it abrogates for alleged un- 
 constitutionality. But it does not stop here. It repeals, in express 
 terms, an important part of the Constitution itself, and of laws 
 passed to give it effect, which have never been alleged to be uncon- 
 stitutional. The Constitution declares that the judicial powers of 
 the United States extend to cases arising under the laws of the 
 United States, and that such laws, the Constitution and treaties, 
 shall be paramount to the State constitutions and laws. The judi- 
 ciary act prescribes the mode by which the case may be brought 
 before a court of the United States, by appeal, when a State tri- 
 bunal shall decide against this provision of the Constitution. The 
 ordinance declares there shall be no appeal ; makes the State law 
 paramount to the^ Constitution and laws of the United States ; 
 forces judges and jurors to swear that they will disregard their 
 
700 JACKSON'S PROCLAMATION. [1832 
 
 provisions ; and even makes it penal in a suitor to attempt relief 
 by appeal. It further declares that it shall not be lawful for the 
 authorities of the United States, or of that State, to enforce the 
 payment of duties imposed by the revenue laws within its limits. 
 
 Here is a law of the United States, not even pretended to be 
 unconstitutional, repealed by the authority of a small majority of 
 the voters of a single State. Here is a provision of the Constitution 
 which is solemnly abrogated by the same authority. 
 
 On such expositions and reasonings, the ordinance grounds not 
 only an assertion of the right to annul the laws of which it com- 
 plains, but to enforce it by a threat of seceding from the Union if 
 any attempt is made to execute them. 
 
 This right to secede is deduced from the nature of the Con- 
 stitution, which they say is a compact between sovereign States, 
 who have preserved their whole sovereignty, and therefore are sub- 
 ject to no superior; that because they made the compact, they can 
 break it when in their opinion it has been departed from by the other 
 States. Fallacious as this course of reasoning is, it enlists State 
 pride, and finds advocates in the honest prejudices of those who 
 have not studied the nature of our government sufficiently to- see 
 the radical error on which it rests. 
 
 The people of the United States formed the Constitution, acting 
 through the'State legislatures, in making the compact, to meet and 
 discuss its provisions, and acting in separate conventions when 
 they ratified those provisions ; but the terms used in its construc- 
 tion show it to be a government in which the people of all the 
 States collectively are represented. We are ONE people in the 
 choice of the President and Vice President. Here the States have 
 no other agency than to direct the mode in which the vote shall be 
 given. The candidates having the majority of all the votes are 
 chosen. The electors of a majority of States may have given their 
 votes for one candidate, and yet another may be chosen. Thf 
 people, then, and not the States, are represented in the executive 
 branch. 
 
 In the House of Representatives there is this difference, that the 
 people of one State do not, as in the case of President and Vice 
 President, all vote for all the members, each State electing only its 
 own representatives. But this creates no material distinction. 
 When chosen, they are all representatives of the United States, not 
 representatives of the particular State from which they come. 
 They are paid by the United States, not by the State ; nor are they 
 accountable to it for any act done in performance of their legisla- 
 tive functions ; and however they may in practice, as it is their duty 
 to do, consult and prefer the interests of their particular constitu- 
 ents when they come in conflict with any other partial or local 
 interest, yet it is their first and highest duty, as representatives of 
 the United States, to promote the general good. 
 
 The Constitution of the United States, then, forms ^govern- 
 ment, not a league, and whether it be formed by compact between 
 the States, or in any other manner, its character is the same. It is 
 a government in which all the people are represented, which 
 
1832] JACKSON'S PROCLAMATION. 701 
 
 operates directly on the people individually, not upon the States ; 
 they retained all the power they did not grant. But each State 
 having expressly parted with so many powers as to constitute 
 jointly with the other States a single nation, cannot from that 
 period possess any right to secede, because such secession does 
 not break a league, but destroys the unity of a nation, and any 
 injury to that unity is not only a breach which would result from 
 the contravention of a compact, but it is an offense against the 
 whole Union. To say that any State may at pleasure secede from 
 the Union, is to say that the United States are not a nation ; 
 because it would be a solecism to contend that any part of a 
 nation might dissolve its connection with the other parts, to their 
 injury or ruin, without committing any offense. Secession, like 
 any other revolutionary act, may be morally justified by the 
 extremity of oppression ; but to call it a constitutional right, is 
 confounding the meaning of terms, and can only be done through 
 gross error, or to deceive those who are willing to assert a right, 
 but would pause before they made a revolution, or incur the 
 penalties consequent upon a failure. 
 
 Because the Union was formed by compact, it is said the parties 
 to that compact may, when they feel themselves aggrieved, depart 
 from it; but it is precisely because it is a compact that they can- 
 not. A compact is an agreement or binding obligation. It may 
 by its terms have a sanction or penalty for its breach, or it may not. 
 If it contains no sanction, it may be broken with no other conse- 
 quence than moral guilt; if it have a sanction, then the breach 
 incurs the designated or implied penalty. A league between 
 independent nations, generally, has no sanction other than a moral 
 one ; or if it should contain a penalty, as there is no common 
 superior, it cannot be enforced. A government, on the contrary, 
 always has a sanction, express or implied ; and, in our case, it is 
 both necessarily implied and expressly given. An attempt by 
 force of arms to destroy a government is an offense, by whatever 
 means the constitutional compact may have been formed ; and 
 such government has the right, by the law of self-defense, to pass 
 acts for punishing the offender, unless that right is modified, 
 restrained, or resumed by the constitutional act. In our system, 
 although it is modified in the case of treason, yet authority is 
 expressly given to pass all laws necessary to carry its powers into 
 effect, and under this grant provision has been made for punishing 
 acts which obstruct the due administration of the laws. 
 
 It would seem superfluous to add anything to show the nature of 
 that union which connects us ; but as erroneous opinions on this 
 subject are the foundation of doctrines the most destructive to our 
 peace, I must give some further development to my views on this 
 subject. No one, fellow-citizens, has a higher reverence for the 
 reserved rights of the States than the magistrate who now 
 -addresses you. No one would make greater personal sacrifices, 
 or official exertions, to defend them from violation ; but equal care 
 must be taken to prevent, on their part, an improper interference 
 with, or resumption of, the rights they have vested in the nation. 
 
702 JACKSON'S PROCLAMATION. U882 
 
 The line has not been so distinctly drawn as to avoid doubts in 
 some cases of the exercise of power. Men of the best intentions 
 and soundest views may differ in their construction of some parts 
 of the Constitution ; but there are others on which dispassionate 
 reflection can leave no doubt. Of this nature appears to be the as- 
 sumed right of secession. It rests, as we have seen, on the alleged 
 undivided sovereignty of the States, and on their having formed 
 in this sovereign capacity a compact which is called the Constitu- 
 tion, from which, because they made it, they have the right to 
 secede. Both of these positions are erroneous, and some of the 
 arguments to prove them so have been anticipated. 
 
 The States severally have not retained their entire sovereignty. 
 It has been shown that in becoming parts of a nation, not 
 members of a league, they surrendered many of their essential 
 parts of sovereignty. The right to make treaties, declare war, 
 levy taxes, exercise exclusive judicial and legislative powers, were 
 all functions of sovereign power. The States, then, for all these 
 important purposes, were no longer sovereign. The allegiance of 
 their citizens was transferred in the first instance to the govern- 
 ment of the United States ; they became American citizens, and 
 owed obedience to the Constitution of the United States, and to 
 laws made in conformity with the powers vested in Congress. 
 This last position has not been, and cannot be, denied. How, 
 then, can that State be said to be sovereign and independent 
 whose citizens owe obedience to laws not made by it, and whose 
 magistrates are sworn to disregard those laws, when they come in 
 conflict with those passed by another ? What shows conclusively 
 that the States cannot be said to have reserved an undivided 
 sovereignty, is that they expressly ceded the right to punish 
 treason — not treason against their separate power, but treason 
 against the United States. Treason is an offense against sover- 
 eignty, and sovereignty must reside with the power to punish it. 
 But the reserved rights of the States are not less sacred because 
 they have for their common interest made the general government 
 the depository of these powers. The unity of our political 
 character (as has been shown for another purpose) commenced 
 with its very existence. Under the royal government we had no 
 separate character; our opposition to its oppression began as 
 United Colonies. We were the United States under the 
 Confederation, and the name was perpetuated and the Union 
 rendered more perfect by the federal Constitution. In none of 
 these stages did we consider ourselves in any other light than as 
 forming one nation. Treaties and alliances were made in the 
 name of all. Troops were raised for the joint defense. How, 
 then, with all these proofs, that under all changes of our position 
 we had, for designated purposes and with defined powers, created 
 national governments — how is it that the most perfect of these 
 several modes of union should now be considered as a mere league 
 that may be dissolved at pleasure ? It is from an abuse of terms. 
 Compact is used as synonymous with league, although the true 
 term is not employed, because it would at once show the fallacy of 
 
1832] JACXSON'S PROCLAMATION. 703 
 
 the reasoning. It would not do to say that our Constitution was 
 only a league, but it is labored to prove it a compact (which, in one 
 sense, it is), and then to argue that as a league is a compact, every 
 compact between nations must, of course, be a league, and that 
 from such an engagement every sovereign power has a right to 
 recede. But it has been shown that in this sense the States are 
 not sovereign, and that eyen if they were, and the national Con- 
 stitution had been formed by compact, there would be no right in 
 any one State to exonerate itself from the obligation. 
 
 So obvious are the reasons which forbid this secession, that it 
 is necessary only to allude to them. The Union was formed for 
 the benefit of all. It was produced by mutual sacrifice of interest 
 and opinions. Can those sacrifices be recalled ? Can the States, 
 who magnanimously surrendered their title to the territories of the 
 West, recall the grant ? Will the inhabitants of the inland States 
 agree to pay the duties that may be imposed without their assent 
 by those on the Atlantic or the Gulf, for their own benefit } Shall 
 there be a free port in one -State, and enormous duties in another .■* 
 No one believes that any right exists in a single State to involve all 
 the others in these and countless other evils, contrary to engage- 
 ments solemnly made. Everyone must see that the other States, 
 in self-defense, must oppose it at all hazards. 
 
 These are the alternatives that are presented by the conven- 
 tion : A repeal of all the acts for raising revenue, leaving the gov- 
 ernment without the means of support ; or an acquiescence in the 
 dissolution of our Union by the secession of one of its members. 
 When the first was proposed, it was known that it could not be 
 listened to for a moment. It was known if force was applied to 
 oppose the execution of the laws, that it must be repelled by 
 force — that Congress could not, without involving itself in disgrace 
 and the country in ruin, accede to the proposition ; and yet if this 
 is not done in a given day, or if any attempt is made to execute the 
 laws, the State is, by the ordinance, declared to be out of the 
 Union. The majority of a convention assembled for the purpose 
 have dictated these terms, or rather this rejection of all terms, in the 
 name of the people of South Carolina. It is true that the governor 
 of the State speaks of the submission of their grievances to a con- 
 vention of all the States; which, he says, they "sincerely and 
 anxiously seek and desire." Yet this obvious and constitutional 
 mode of obtaining the sense of the other States on the construc- 
 tion of the federal compact, and amending it, if necessary, has 
 never been attempted by those who have urged the State on to 
 this destructive measure. The State might have proposed a call 
 for a general convention to the other States, and Congress, if a 
 sufficient number of them concurred, must have called it. But the 
 first magistrate of South Carolina, when he expressed a hope that, 
 " on a review by Congress and the functionaries of the general 
 government of the merits of the controversy," such a convention 
 will be accorded to them, must have known that neither Congress, 
 nor any functionary in the general government, has authority to 
 call such a convention, unless it be demanded by two-thirds of the 
 
704 JACKSON'S PROCLAMATION^. tl832 
 
 States. This suggestion, then, is another instance of the reckless 
 inattention to the provisions of the Constitution with which this 
 crisis has been madly hurried on ; or of the attempt to persuade 
 the people that a constitutional remedy has been sought and 
 refused. If the legislature of South Carolina " anxiously desire " 
 a general convention to consider their complaints, why have they 
 not made application for it in the way the Constitution points out .' 
 The assertion that they " earnestly seek " is completely negatived 
 by the omission. 
 
 This, then, is the position in which we stand. A small majority 
 of the citizens of one State in the Union have elected delegates to 
 a State convention ; that convention has ordained that all the 
 revenue laws of the United States must be repealed, or that they are 
 no longer a member of the Union. The governor of that State has 
 recommended to the legislature the raising of an army to carry the 
 secession into effect, and that he may be empowered to give clear- 
 ances to vessels in the name of the State. No act of violent 
 opposition to the laws has yet been committed, but such a state 
 of things is hourly apprehended, and it is the intent of this instru- 
 ment to Proclaim, not only that the duty imposed on me by the 
 Constitution, " to take care that the laws be faithfully executed," 
 shall be performed to the extent of the powers already vested in 
 me by law, or of such others as the wisdom of Congress shall 
 devise and intrust to me for that purpose ; but to warn the citizens 
 of South Carolina, who have been deluded into an opposition to 
 the laws, of the danger they will incur by obedience to the illegal 
 and disorganizing ordinance of the convention — to exhort those 
 who have refused to support it to persevere in their determination 
 to uphold the Constitution and laws of their country, and to point 
 out to all the perilous situation into which the good people of that 
 State have been led, and that the course they are urged to pursue 
 is one of ruin and disgrace to the very State whose rights they 
 affect to support. 
 
 Fellow-citizens of my. native State ! let me not only admonish 
 you, as the first magistrate of our common country, not to incur 
 the penalty of its laws, but use the influence that a father would 
 over his children whom he saw rushing to a certain ruin. In that 
 paternal language, with that paternal feeling, let me tell you, my 
 countrymen, that you are deluded by men who are either deceived 
 themselves or wish to deceive you. Mark under what pretenses 
 you have been led on to the brink of insurrection and treason on 
 which you stand ! First a diminution of the value of our staple 
 commodity, lowered by over-production in other quarters and the 
 consequent diminution in the value of your lands, were the sole 
 effect of the tariff laws. The effect of those laws was confessedly 
 injurious, but the evil was greatly exaggerated by the unfounded 
 theory you were taught to believe, that its burdens were in pro- 
 portion to your exports, not to your consumption of imported 
 articles. Your pride was aroused by the assertions that a sub- 
 mission to these laws was a state of vassalage, and that resistance 
 to them was equal, in patriotic merit, to the opposition our fathers 
 
1832] JACKSON'S PROCLAMATION. 7^5 
 
 offered to the oppressive laws of Great Britain. You were told 
 that this opposition might be peaceably — might be constitutionally 
 made — that you might enjoy all the advantages of the Union and 
 bear none of its burdens. Eloquent appeals to your passions, to 
 your State pride, to your native courage, to your sense of real 
 injury, were used to prepare you for the period when the mask 
 which concealed the hideous features of Disunion should be 
 taken off. It fell, and you were made to look with complacency 
 on objects which not long since you would have regarded with 
 horror. Look back to the arts which have brought you to this 
 state — look forward to the consequences to which it must inevi- 
 tably lead ! Look back to what was first told you as an induce- 
 ment to enter into this dangerous course. The great political 
 truth was repeated to you that you had the revolutionary right of 
 resisting all laws that were palpably unconstitutional and intoler- 
 ably oppressive — it was added that the right to nullify a law rested 
 on the same principle, but that it was a peaceable remedy! This 
 character which was given to it, made you receive with too much 
 confidence the assertions that were made of the unconstitutionality 
 of the law and its oppressive effects. Mark, my fellow-citizens, 
 that by the admission of your leaders the unconstitutionality must 
 be palpable, or it will not justify either resistance or nullification ! 
 Wliat is the meaning of the viorA jialpable in the sense in which 
 it is here used ? that which is apparent to everyone, that which no 
 man of ordinary intellect will fail to perceive. Is the unconstitu- 
 tionality of these laws of that description ? Let those among your 
 leaders who once approved and advocated the principles of protect- 
 ive duties, answer the question ; and let them choose whether they 
 will be considered as incapable, then, of perceiving that which 
 must have been apparent to every man of common understanding, 
 or as imposing upon your confidence and endeavoring to mislead 
 you now. In either case, they are unsafe guides in the perilous path 
 they urge you to tread. Ponder well on this circumstance, and 
 you will know how to appreciate the exaggerated language they 
 address to you. They are not champions of liberty emulating the 
 fame of our Revolutionary fathers, nor are you an oppressed 
 people, contending, as they repeat to you, against worse than 
 colonial vassalage. You are free members of a flourishing and 
 happy Union. There is no settled design to oppress you. You 
 have, indeed, felt the unequal operation of laws which may have 
 been unwisely, not unconstitutionally passed ; but that inequality 
 must necessarily be removed. At the very moment when you 
 were madly urged on to the unfortunate course you have begun, a 
 change in public opinion has commenced. The nearly approach- 
 ing payment of the public debt, and the consequent necessity of 
 a diminution of duties, had already caused a considerable reduc- 
 tion, and that, too, on some articles of general consumption in 
 your State. The importance of this change was underrated, and 
 you were authoritatively told that no further alleviation of your 
 burdens was to be expected, at the very time when the condition 
 of the country imperiously demanded such -i modification of the 
 
7o6 JACKSON'S PROCLAMATJON. [1832 
 
 duties as should reduce them to a just and equitable scale. But, 
 as apprehensive of the effect of this change in allaying your dis- 
 contents, you were precipitated into the fearful state in which you 
 now find yourselves. 
 
 I have urged you to look back to the means that were used to 
 huri-y you on to the position you have now assumed, and forward 
 to the consequences they will produce. Something more is neces- 
 sary. Contemplate the condition of that country of which you 
 still form an important part ; consider its government uniting in 
 one bond of common interest and general protection so many 
 different States — giving to all their inhabitants the proud title of 
 American Citizen — protecting their commerce — securing their 
 literature and arts — facilitating their intercommunication — defend- 
 ing their frontiers — and making their name respected in the 
 remotest parts of the earth ! Consider the extent of its territory, 
 its increasing and happy population, its advance in arts, which 
 render life agreeable, and the sciences which elevate the mind ! 
 See education spreading the lights of religion, morality, and 
 general information into every cottage in this wide extent of our 
 Territories and States ! Behold it as the asylum where the 
 wretched and the oppressed find a refuge and support ! Look on 
 this picture of happiness and honor, and say, WE TOO, ARE CITI- 
 ZENS OF America — Carolina is one of these proud States her 
 arms have defended — her best blood has cemented this happy 
 Union ! And then add, if you can, without horror and remorse, 
 this happy Union we will dissolve — this picture of peace and 
 prosperity we will deface — this free intercourse we will interrupt — 
 these fertile fields we will deluge with blood — the protection of 
 that glorious flag we renounce — the very name of Americans we 
 discard. And for what, mistaken men ! For what do you throw 
 away these inestimable blessings — for what would you exchange 
 your share in the advantages and honor of the Union .' For the 
 dream of a separate independence — a dream interrupted by bloody 
 conflicts with your neighbors, and a vile dependence on a foreign 
 power. If your leaders could succeed in establishing a separation, 
 what would be your situation ? Are you united at home — are you 
 free from the apprehension of civil discord, with all its fearful con- 
 sequences .'' Do our neighboring republics, every day suffering 
 some new revolution or contending with some new insurrection — 
 do they excite your envy? But the dictates of a high duty oblige 
 me solemnly to announce that you cannot succeed. The laws of 
 the United States must be executed. I have no discretionary 
 power on the subject — my duty is emphatically pronounced in the 
 Constitution. Those who told you that you might peaceably 
 prevent their execution, deceived you — they could not have been 
 deceived themselves. Ttey know that a forcible opposition could 
 alone prevent the execution of the laws, and they know that such 
 opposition must be repelled. Their object is disunion ; but be not 
 deceived by names ; disunion, by armed force, is TREASON. Are 
 you really ready to incur its guilt.'' If you are, on the head of the 
 instigators of the act be the dreadful consequences — on their heads 
 
1832] JACKSOH'S PROCLAMATION. 707 
 
 be the dishonor, but on yours may fall the punishment — on your 
 unhappy State will inevitably fall all the evils of the conflict you 
 force upon the government of your country. It cannot accede to 
 the mad project of disunion, of which you would be the first 
 victims — its first magistrate cannot, if he would, avoid the perform- 
 ance of his duty — the consequence must be fearful for you, dis- 
 tressing to your fellow-citizens here, and to the friends of good 
 government throughout the world. Its enemies have beheld our 
 prosperity with a vexation they could not conceal — it was a stand- 
 ing refutation of their slavish doctrines, and they will point to our 
 discord with the triumph of malignant joy. It is yet in your power 
 'to disappoint them. There is yet time to show that the descendants 
 of the Pinckneys, the Sumpters, the Rutledges, and of the thousand 
 other names which adorn the pages of your Revolutionary history, 
 will not abandon that Union to support which so many of them 
 fought and bled and died. I adjure you, as you honor their 
 memory — as you love the cause of freedom, to which they dedi- 
 cated their lives — as you prize the peace of your country, the lives 
 of its best citizens, and your own fair fame, to retrace your steps. 
 Snatch from the archives of your State the disorganizing edict of 
 its convention — bid its members to re-assemble and promulgate 
 the decided expressions of your will to remain in the path which 
 alone can conduct j'ou to safety, prosperity, and honor — tell them 
 that compared to disunion, all other evils are light, because that 
 brings with it an accumulation of all — declare that you will never 
 take the field unless the star-spangled banner of your country shall 
 float over you — that you will not be stigmatized when dead, and 
 dishonored and scorned while you live, as the authors of the first 
 attack on the Constitution of your country ! — its destroyers you 
 cannot be. You may disturb its peace — you may interrupt the 
 course of its prosperity — you may cloud its reputation for stability — 
 but its tranquillity will be restored, its prosperity will return, and 
 the stain upon its national character will be transferred and remain 
 an eternal blot on the memory of those who caused the disorder. 
 
 Fellow-citizens of the United States ! the threat of unhallowed 
 disunion — the names of those, once respected, by whom it is 
 uttered — the array of military force to support it — denote the 
 approach of a crisis in our affairs on which the continuance of our 
 unexampled prosperity, our political existence, and perhaps that of 
 all free governments, may depend. The conjuncture demanded a 
 free, a full, and explicit enunciation, not only of my intentions, but 
 of my principles of action ; and as the claim was asserted of a 
 right by a State to annul the laws of the Union, and even to secede 
 from it at pleasure, a frank exposition of my opinions in relation to 
 the origin and form of our government, and the construction I 
 give to the instrument by which it was created, seemed to be 
 proper. Having the fullest confidence in the justness of the legal 
 and constitutional opinion of my duties which has been expressed, 
 I rely with equal confidence on your undivided support in my 
 determination to execute the laws— to preserve the Union by all 
 constitutional means— to arrest, if possible, by moderate but firm 
 
7o8 DRED SCOTT DECISION. [1857 
 
 measures, the necessity of a recourse to force ; and, if it be the 
 will of Heaven that the recurrence of its primeval curse on man 
 for the shedding of a brother's blood should fall upon our land, 
 that it be not called down by any offensive act on the part of the 
 United States. 
 
 Fellow-citizens ! the momentous case is before you. On your 
 undivide-d support of your government depends the decision of the 
 great question it involves, whether your sacred Union will be 
 preserved, and the blessing it secures to us as one people shall be 
 perpetuated. No one can doubt that the unanimity with which 
 that decision will be expressed, will be such as to inspire new con- 
 fidence in republican institutions, and that the prudence, the 
 wisdom, and the courage which it will bring to their defense, will 
 transmit them unimpaired and invigorated to our children. 
 
 May the Great Ruler of nations grant that the signal blessings 
 with which he has favored ours may not, by the madness of party, 
 or personal ambition, be disregarded and lost, and may His wise 
 providence bring those who have produced this crisis to see the 
 folly, before they feel the misery, of civil strife, and inspire a return- 
 ing veneration for that Union which, if we may dare to penetrate 
 his designs, he has chosen, as the only means of attaining the 
 high destinies to which we may reasonably aspire. 
 
 In testimony whereof, I have caused the seal of the United 
 States to be hereunto affixed, having signed the same with my 
 hand. 
 
 Done at the City of Washington, this loth day of December, in 
 the year of our Lord one thousand eight hundred and thirty-two, 
 and of the independence of the United States the fifty-seventh. 
 
 ANDREW JACKSON. 
 
 By the President, 
 
 Edw. Livingston, Secretary of State. 
 
 ABSTRACT OF THE DRED SCOTT DECISION, 1857.* 
 
 . . . But, in making this objection, we think the peculiar and 
 limited jurisdiction of coints of the United States has not been 
 adverted to. This peculiar and limited jurisdiction has made it 
 necessary, in these courts, to adopt different rules and principles 
 of pleading, so far as jurisdiction is concerned, from those which 
 regulate courts of common law in England, and in the different 
 states of the Union which have adopted the common-law rules. . . . 
 
 This difference arises, as we have said, from the peculiar char- 
 acter of the government of the United States. For altliough it is 
 sovereign and supreme in its appropriate sphere of action, yet it 
 does not possess all the powers which usually belong to the 
 sovereignty of a nation. Certain specified powers, enumerated in 
 the Constitution, have been conferred upon it ; and neither the 
 
 * In full in 19 How. 393. 
 
ISBT] DRED SCOTT DECISION. 709 
 
 legislative, executive, nor judicial departments of the government 
 can lawfully exercise any authority beyond the limits marked out 
 by the Constitution. And in regulating the judicial department, 
 the cases in which the courts of the United States shall have 
 jurisdiction are particularly and specifically enumerated and 
 defined ; and they are not authorized to take cognizance of any 
 case which does not come within the description therein specified. 
 Hence, when a plaintiff sues in a court of the United States, it is 
 necessary that he should show, in his pleading, that the suit he 
 brings is within the jurisdiction of the court, and that he is entitled 
 to sue there. ... In this case, the citizenship is averred, but it is 
 denied by the defendant in the manner required by the rules of 
 pleading, and the fact upon which the denial is based is admitted 
 by the demurrer. And, if the plea and demurrer, and judgment 
 of the court below upon it, are before us upon this record, the 
 question to be decided is, whether the facts stated in the plea are 
 sufficient to show that the plaintiff is not entitled to sue as a 
 citizen in a court of the United States. . . . 
 
 This is certainly a very serious question, and one that now for 
 the first time has been brought for decision before this court. But 
 it is brought here by those who have a right to bring it, and it is 
 our duty to meet it and decide it. 
 
 The question is simply this : Can a negro, whose ancestors were 
 imported into this country, and sold as slaves, become a member 
 of the political community formed and brought into existence by 
 the Constitution of the United States, and as such become entitled 
 to all the rights, and privileges, and immunities, guaranteed by 
 that instrument to the citizen ? One of which rights is the privilege 
 of suing in a court of the United States in the cases specified in 
 the Constitution. 
 
 It will be observed, that the plea applies to that class of persons 
 only whose ancestors were negroes of the African race, and im- 
 ported into this country, and sold and held as slaves. The only 
 matter in issue before the court, therefore, is, whether the descend- 
 ants of such slaves, when they shall be emancipated, or who are 
 born of parents who had become free before their birth, are citizens 
 of a state, in the sense in which the word citizen is used in the 
 Constitution of the United States. And this being the only mat- 
 ter in dispute on the pleadings, the court must be understood as 
 speaking in this opinion of that class only. That is, of those 
 persons who are the descendants of Africans who were imported 
 into this country, and sold as slaves. . . . 
 
 The words " people of the United States " and " citizens " are 
 synonymous terms, and mean the same thing. They both describe 
 the political body who, according to our republican institutions, 
 form the sovereignty, and who hold the power and conduct the 
 government through their representatives. They are what we 
 familiarly call the " sovereign people," and every citizen is one of 
 this people, and a constituent member of this sovereignty. The 
 question before us is, whether the class of persons described in 
 the plea in abatement compose a portion of this people, and are 
 
710 DRED SCOTT DECISION. fl887 
 
 constituent members of this sovereignty ? We think they are not, 
 and that they are not included, and were not intended to be in- 
 cluded, under the word " citizens " in the Constitution, and can 
 therefore claim none of the rights and privileges which that instru- 
 ment provides for and secures to citizens of the United Slates. 
 On the contrary, they were at that time considered as a subordi- 
 nate and inferior class of beings, who had been subjugated by the 
 dominant race, and whether emancipated or not, yet remained 
 subject to their authority, and had no rights or privileges but such 
 as those who held the power and the government might choose to 
 grant them. 
 
 It is not the province of the court to decide upon the justice or 
 injustice, the policy or impolicy, of these laws. The decision of 
 that question belonged to the political or law-making power ; to 
 those who formed the sovereignty and framed the Constitution. 
 The duty of the court is, to interpret the instrument they have 
 framed, with the best lights we can obtain on the subject, and to 
 administer it as we find it, according to its true intent and mean- 
 ing when it was adopted. 
 
 In discussing this question we must not confound the rights of 
 citizenship which a state may confer within its own limits, and the 
 rights of citizenship as a member of the Union. It does not by 
 any means follow, because he has all the rights and privileges of a 
 citizen of a state, that he must be a citizen of the United States. 
 He may have all the rights and privileges of the citizen of a state, 
 and yet not be entitled to the rights and privileges of a citizen in 
 any other state. For, previous to the adoption of the Constitution 
 of the United States, every state had the undoubted right to confer 
 on whomsoever it pleased the character of citizen, and to endow 
 him with all its rights. But this character of course was confined 
 to the boundaries of the state, and gave him no rights or privileges 
 in other states beyond those secured to him by the laws of nations 
 and the comity of states. Nor have the several states surrendered 
 the power of conferring these rights and privileges by adopting the 
 Constitution of the United States. Each state may still confer 
 them upon an alien, or anyone it thinks proper, or upon any class 
 or description of persons ; yet he would not be a citizen in the 
 sense in which that word is used in the Constitution of the United 
 States, nor entitled to sue as such in one of its courts, nor to the 
 privileges and immunities of a citizen in the other states. The 
 rights which he would acquire would be restricted to the state 
 which gave them. The Constitution has conferred on Congress 
 the right to establish an uniform rule of naturalization, and this 
 right is evidently exclusive, and has always been held by this court 
 to be so. Consequently, no state, since the adoption of the Con- 
 stitution, can by naturalizing an alien invest him with the rights 
 and privileges secured to a citizen of a state under the federal 
 government, although, so far as the state alone was concerned, he 
 would undoubtedly be entitled to the rights of a citizen, and 
 clothed with all the rights and immunities which the constitution 
 and laws of the state attached to that character. 
 
1860] S. C. ORDINANCE OF SECESSION. 7" 
 
 It is very clear, therefore, that no state can, by any act or law of 
 its own, passed since the adoption of the Constitution, introduce a 
 new member into the political community created by the Consti- 
 tution of the United States. It cannot make him a member of this 
 community by mal<ing him a member of its own. And for the 
 same reason it cannot introduce any person, or description of 
 persons, who were not intended to be embraced in this new 
 political family, which the Constitution brought into existence, but 
 were intended to be excluded from it. 
 
 The question then arises, whether the provisions of the Consti- 
 tution, in relation to the personal rights and privileges to which 
 the citizen of a state should be entitled, embraced the negro African 
 race, at that time in this country, or who might afterward be 
 imported, who had then or should afterward be made free in any 
 state ; and to put it in the power of a single state to make him a 
 citizen of the United States, and endue him with the full rights of 
 citizenship in every other state without their consent ? Does the 
 Constitution of the United States act upon him whenever he shall 
 be made free under the laws of the state, and raised there to the 
 rank of a citizen, and immediately clothe him with all the privileges 
 of a citizen in every other state, and in its own coui'ts .' 
 
 The court think the affirmative of these propositions cannot be 
 maintained. And if it cannot, the plaintiff in error could not be a 
 citizen of the State of Missouri, within the meaning of the Consti- 
 tution of the United States, and, consequently, was not entitled to 
 sue in its courts. 
 
 SOUTH CAROLINA ORDINANCE OF SECESSION, i860. 
 
 An ordinance to dissolve the Union between the State of South 
 Carolina and other States united with her under the compact 
 entitled " The Constitution of the United States of America." 
 
 We, the People of the State of South Carohna, in Convention 
 assembled, do declare and ordain, and it is hereby declared and 
 ordained, that the Ordinance adopted by us in Convention, on the 
 Twenty-third of May, in the year of our Lord one thousand seven 
 hundred and eighty-eight, whereby the Constitution of the United 
 States was ratified, and also all other Acts and parts of Acts of the 
 General Assembly of the State ratifying amendments of the said 
 Constitution, are hereby repealed, and the union now subsisting 
 between South Carolina and other States, under the name of the 
 United States of America, is hereby dissolved. 
 
 SOUTH CAROLINA DECLARATION OF INDEPENDENCE, i860. 
 
 The State of South Carolina, having determined to resume her 
 separate and equal place among nations, deems it due to herself, 
 to the remaining United States of America, and to the nations of 
 the world that she should declare the causes which have led to 
 
 ['lis art. 
 
712 S. C. DECLARATION OF INDEPENDENCE. [I860 
 
 In the year 1765, that portion of the British empire embracing 
 Great Britain, undertook to make laws for the government of that 
 portion composed of the thirteen American colonies. A struggle 
 for the right of self-government ensued, which resulted, on the 4lh 
 of July, 1776, in a declaration by the colonies, " that they are, and 
 of right ought to be, free and independent states, and that, as free 
 and indedendent states, they have full power to levy war, to con- 
 clude peace, contract alliances, establish commerce, and do all 
 other acts and things which independent states may of right do." 
 
 They further solemnly declare, that whenever any " form of 
 government becomes destructive of the ends for which it was 
 established, it is the right of that people to alter or abolish it, and 
 to institute a new government." Deeming the government of 
 Great Britain to have become destructive of these ends, they 
 declared that the colonies " are absolved from all allegiance to the 
 British crown, and that all political connection between them and 
 the States of Great Britain is and ought to be totally dissolved." 
 
 In pursuance of this declaration of independence, each of the 
 thirteen states proceeded to exercise its separate sovereignty ; 
 adopted for itself a constitution, and appointed officers for the 
 administration of government in all its departments — legislative, 
 executive, and judicial. For purpose of defense, they united their 
 arms and their counsels ; and, in 1778, they united in a league, 
 known as the articles of confederation, whereby they agreed to 
 intrust the administration of their external relations to a common 
 agent, known as the Congress of the United States, expressly 
 declaring in the first article, " that each state retains its sovereignty, 
 freedom, and independence, and every power, jurisdiction, and 
 right which is not, by this confederation, expressly delegated to the 
 United States in Congress assembled." 
 
 Under this confederation the war of the Revolution was carried 
 on, and on the 3d of September, 1783, the contest ended, and a 
 definite treaty was signed by Great Britain, in which she acknowl- 
 edged the independence of the colonies in the following terms : 
 
 " Article I. His Britannic Majesty acknowledges the said United 
 States, viz. : New Hampshire, Massachusetts Bay, Rhode Island 
 and Providence Plantation, Connecticut, New York, New Jersey, 
 Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South 
 Carolina, and Georgia, to be free, sovereign, and independent 
 states ; that he treats them as such ; and for himself, his heirs, and 
 successors, relinquishes all claim to the government, proprietary 
 and territorial rights of the same, and every part thereof." 
 
 Thus was established the two great principles asserted by the 
 colonies, namely, the right of a state to govern itself, and the right 
 of a people to abolish a government when it becomes destructive 
 of the ends for which it was instituted. And concurrent with the 
 establishment of these principles was the fact, that each colony 
 became and was recognized by the mother country as a free, 
 sovereign, and independent state. 
 
 In 1787, deputies were appointed by the states to revise the 
 articles of Confederation, and on September 17th, 1787, the 
 
1860] 5'. C. DECLARATION OF INDEPENDENCE. 713 
 
 deputies recommended for the adoption of the states the articles 
 of union known as the constitution of the United States. 
 
 The parties to whom the constitution was submitted were the 
 several sovereign states ; they were to agree or disagree, and when 
 nine of them agreed, the compact was to take effect among those 
 concurring; and the general government, as the common agent, 
 was tlien to be vested with their authority. 
 
 If only nine of the thirteen states had concurred, the other four 
 would have remained as they then were— separate, sovereign states, 
 independent of any of the provisions of the constitution. In fact, 
 two of the states did not accede to the constitution until long after 
 it had gone into operation among the other eleven ; and during 
 that interval, they exercised the functions of an independent nation. 
 
 By this constitution, certain duties were charged on the several 
 states, and the exercise of certain of their powers not delegated to 
 the United States by the constitution, nor prohibited by it to the 
 states, are reserved to the states respectively, or to the people. 
 On the 23d of May, 1788, South Carolina, by a convention of her 
 people, passed an ordinance assenting to this constitution, and 
 afterwards altering her own constitution to conform herself to the 
 obligation she had undertaken. 
 
 Thus was established, by compact between the states, a govern- 
 ment with defined objects and powers, limited to the express 
 words of the grant, and to so much more only as was necessary to 
 execute the power granted. The limitations left the whole re- 
 maining mass of power subject to the clause reserving it to the 
 state or to the people, and rendered unnecessary any specification 
 of reserved powers. 
 
 We hold that the government thus established is subject to the 
 two great principles asserted in the declaration of independence, 
 and we hold further that the mode of its formation subjects it to a 
 third fundamental principle, namely — the law of compact. We 
 maintain that in every compact between two or more parties, the 
 obligation is mutual — that the failure of one of the contracting 
 parties to perform a material part of the agreement entirely re- 
 leases the obligation of the other, and that, where no arbiter 
 is appointed, each party is remitted to his own judgment to deter- 
 mine the fact of failure with all its consequences. 
 
 In the present case that fact is established with certainty. We 
 assert that fifteen of the states have deliberately refused for years 
 past to fulfill their constitutional obligation, and we refer to their 
 own statutes for the proof. 
 
 The constitution of the United States, in its fourth article, pro- 
 vides as follows: 
 
 " 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 any service or labor, but 
 shall be delivered up, on claim of the party to whom such service 
 or labor may be due." 
 
 This stipulation was so material to the compact that without it 
 that compact would not have been made. The greater number 
 
714 S. C. DECLARATION OF INDEPENDENCE. [I860 
 
 of the contracting parties held slaves, and the state of Virginia 
 had previously declared her estimate of its value by making it the 
 condition of cession of the territory which now composes the states 
 north of the Ohio river. 
 
 The same article of the Constitution stipulates also for the 
 rendition by the several states of fugitives from justice from the 
 other states. 
 
 The general government, as the common agent, passed laws to 
 carry into effect these stipulations of the states. For many years 
 these laws were executed. But an increasing hostility on the 
 part of the northern states to the institution of slavery has led to 
 a disregard of their obligations, and the laws of the general 
 government have ceased to effect the objects of the constitution. 
 The states of Maine, New Hampshire, Vermont, Massachusetts, 
 Connecticut, Rhode Island, New York, Pennsylvania, Illinois, 
 Indiana, Ohio, Michigan, Wisconsin, and Iowa have enacted laws 
 which either nullify the acts of Congress, or render useless any 
 attempt to execute them. In many of these states the fugitive is 
 discharged from the service of labor claimed, and in none of them 
 has the state government complied with the stipulation made in 
 the constitution. The state of New Jersey, at an early day, passed 
 a law for the rendition of fugitive slaves in conformity with her 
 constitutional undertaking; but the current of anti-slavery feeling 
 has led her more recently to enact laws which render inoperative 
 the remedies provided by her own law, and by the laws of Con- 
 gress. In the state of New York even the right of transit for a 
 slave has been denied by her tribunals, and the states of Ohio and 
 Iowa have refused to surrender to justice fugitives charged with 
 murder and inciting servile insurrection in the state of Virginia. 
 Thus the constitutional compact has been deliberately broken and 
 disregarded by the non-slaveholding states, and the consequence 
 follows that Soutli Carolina is released from its obligation. 
 
 The ends for which this constitution was framed are declared 
 by itself to be " to form a more perfect union, establish justice, 
 insure domestic tranquillity, provide for the common defense, pro- 
 tect the general welfare, and secure the blessings of liberty to 
 ourselves and posterity." 
 
 These enjls it endeavored to accomplish by a federal govern- 
 ment, in which each state was recognized as an equal, and had 
 separate control over its own institutions. The right of property 
 iin slaves was recognized by giving to free persons distinct polit- 
 ical rights ; by giving them the right to represent, and burdening 
 them with direct taxes for three-fifths of their slaves ; by author- 
 izing the importation of slaves for twenty years, and by stipulating 
 for the rendition of fugitives from labor. 
 
 We affirm that these ends for which this government was insti- 
 tuted have been defeated, and the government itself has been made 
 destructive of them by the action of the non-slaveholding state. 
 These states have assumed the right of deciding upon the propriety 
 of our domestic institutions, and have denied the rights of property 
 established in fifteen of the states and recognized by the con- 
 
1860] S. C. DECLARATION- OF INDEPENDENCE. 715 
 
 stitution ; they have denounced as sinful the institution of slavery; 
 they have permitted the open establishment among them of 
 societies whose avowed object is to disturb the peace and claim 
 the property of the citizens of other states. They have encouraged 
 and assisted thousands of our slaves to leave their homes, and 
 those who remain have been incited by emissaries, books, and 
 pictures to servile insurrection. 
 
 For seventy-five years this agitation has been steadily increasing, 
 until it has now secured to its aid the power of the common govern- 
 ment. Observing the forms of the constitution, a sectional party 
 has found within that article establishing the executive depart- 
 ment the means of subverting the constitution itself. A geo- 
 graphical line has been drawn across the Union, and all the states 
 north of that line have united in the election of a man to the high 
 office of President of the United States, whose opinions and pur- 
 poses are hostile to slavery. He is to be intrusted with the ad- 
 ministration of the common government, because he has declared 
 that that " government cannot endure permanently half slave, 
 half free," and that the public mind must rest in the belief that 
 slavery is in the course of ultimate extinction. 
 
 This sectional combination for the subversion of the constitution 
 has been aided in some of the states by elevating to citizenship 
 persons who, by the supreme law of the land, are incapable of be- 
 coming citizens, and their votes have been used to inaugurate a new 
 policy hostile to the south, and destructive of its peace and safety. 
 
 On the 4th of March next, this party will take possession of the 
 government. It has announced that tlie south shall be excluded 
 from the common territory ; that the judicial tribunals shall be 
 made sectional, and that a war must be waged against slavery 
 until it shall cease throughout the United States. 
 
 The guarantees of the constitution will then no longer exist ; 
 the equal rights of the states will be lost. The slaveholding states 
 will no longer have the power of self-government or self-protection, 
 and the federal government will have become their enemies. 
 
 Sectional interest and animosity will deepen the irritation, and 
 all hope of remedy is rendered vain by the fact that public opinion 
 at the north has invested a great political error with the sanctions 
 of a more erroneous religious belief. 
 
 We, therefore, tlie people of South Carolina, by our delegates 
 in convention assembled, appealing to the Supreme Judge of the 
 world for the rectitude of our intentions, have solemnly declared 
 that the union heretofore existing between this state and the 
 other states of North America is dissolved, and that the state of 
 South Carolina has resumed her position among the nations of 
 the world as a free, sovereign, and independent state, with full 
 powers to levy war, conclude peace, contract alliances, establish 
 commerce, and to do all other acts and things which independent 
 states may, of right, do. 
 
 And, for the support of this declaration, with a firm reliance on 
 the protection of Divine Providence, we mutually pledge to each 
 other, our lives, our fortunes, and our sacred honor. 
 
7i6 CRITTENDEN AMENDMENTS. [1861 
 
 AMENDMENTS PROPOSED IN CONGRESS BY CRITTENDEN, 1861. 
 
 Whereas, serious and alarming dissensions have arisen between 
 the Northern and Southern States, concerning the rights and 
 security of the rights of the slaveholding States, and especially 
 their rights in the common territory of the United States; and 
 whereas it is eminently desirable and proper that these dissensions, 
 which now threaten the very existence of this Union, should be 
 permanently quieted and settled by constitutional provisions, which 
 shall do equal justice to all sections, and thereby restore to the 
 people that peace and good will which ought to prevail between 
 all the citizens of the United States : Therefore, 
 
 Resolved by the Senate and House of Representatives of the 
 United States of America in Congress assembled (two-thirds of 
 both Houses concurring), That the following articles be, and are 
 hereby, proposed and submitted as amendments to the Constitu- 
 tion of the United States, which shall be valid to all intents and 
 purposes, as part of said Constitution, when ratified by conventions 
 of three-fourths of the several States: 
 
 ARTICLE I. 
 
 In all the territory of the United States now held, or here- 
 after acquired, situated north of latitude 36° 30', slavery or invol- 
 untary servitude, except as a punishment for crime, is prohibited 
 while such territory shall remain under territorial government. In 
 all the territory south of said line of latitude, slavery of the African 
 race is hereby recognized as existing, and shall not be interfered 
 with by Congress, but shall be protected as property by all the 
 departments of the territorial government during its continuance. 
 And when any Territoiy, north or south of said line, within such 
 boundaries as Congress may prescribe, shall contain the population 
 requisite for a member of Congress according to the then Federal 
 ratio of representation of the people of the United States, it shall, 
 if its form of government be republican, be admitted into the 
 Union, on an equal footing with the original States, with or with- 
 out slavery, as the constitution of such new State may provide. 
 
 ARTICLE II. 
 
 Congress shall have no power to abolish slavery in places 
 under its exclusive jurisdiction, and situate within the limits of 
 States that permit the holding of slaves. 
 
 ARTICLE in. 
 
 Congress shall have no power to abolish slavery within the 
 District of Columbia, so long as it exists in the adjoining States 
 of Virginia and Maryland, or either, nor without the consent 
 of the inhabitants, nor without just compensation first made to 
 such owners of slaves as do not consent to such abolishment. 
 Nor shall Congress at any time prohibit officers of the Federal 
 
1861] CRITTENDEN AMENDMENTS. 717 
 
 Government, or members of Congress, whose duties require them 
 to be in said District, from bringing with them their slaves, and 
 holding them as such, during the time their duties may require 
 them to remain there, and afterward taking them from the District. 
 
 ARTICLE IV. 
 
 Congress shall have no power to prohibit or hinder the trans- 
 portation of slaves from one State to another, or to a Terri- 
 tory in which slaves are by law permitted to be held, whether that 
 transportation be by land, navigable rivers, or by the sea. 
 
 ARTICLE V. 
 
 That in addition to the provisions of the third paragraph of 
 the second section of the fourth article of the Constitution of 
 the United States, Congress shall have power to provide by law, 
 and it shall be its duty so to provide, that the United States shall 
 pay to the owner who shall apply for it, the full value of his 
 fugitive slave in all cases when the marshal or other officer whose 
 duty it was to arrest said fugitive was prevented from so doing by 
 violence or intimidation, or when, after arrest, said fugitive was 
 rescued by force, the owner thereby prevented and obstructed in 
 the pursuit of his remedy for the recovery of his fugitive slave 
 under the said clause of the Constitution and the laws made in 
 pursuance thereof. And in all such cases, when the United States 
 shall pay for such fugitive, they shall have the right, in their own 
 name, to sue the county in which said violence, intimidation, or 
 rescue was committed, and to recover from it, with interest and 
 damages, the amount paid by them for said fugitive slave. And 
 the said county, after it has paid said amount to the United States, 
 may, for its idemnity, sue and recover from the wrongdoers or 
 rescuers by whom the owner was prevented from the recovery of 
 his fugitive slave, in like manner as the owner himself might have 
 sued and recovered. 
 
 ARTICLE VI. 
 
 No future amendment of the Constitution shall affect the 
 five preceding articles ; nor the third paragraph of the second 
 section of the first article of the Constitution ; nor the third para- 
 graph of the second section of the fourth article of said Constitu- 
 tion, and no amendment shall be made to the Constitution which 
 shall authorize or give to Congress any power to abolish or inter- 
 fere with slavery in any of the States by whose laws it is, or may 
 be allowed or permitted. 
 
 And whereas, also, besides these causes of dissension embraced 
 in the foregoing amendments proposed to the Constitution of the 
 United States, there are others which come within the jurisdiction 
 of Congress, as far as its power will extend, to remove all just 
 <:ause for the popular discontent and agitation which now disturb 
 the peace of the country, and threaten the stability of its institu- 
 tions : Therefore, 
 
7l8 CRITTENDEN AMENDMENTS. [1861 
 
 1. Resolved by the Senate and House of Representatives of the 
 United States of America in Congress assembled, That the laws 
 now in force for the recovery of fugitive slaves are in strict pursu- 
 ance of the plain and mandatory provisions of the Constitution, and 
 have been sanctioned as valid and constitutional by the judgment 
 of the Supreme Court of the United States ; that the slaveholding 
 States are entitled to the faithful observance and execution of those 
 laws, and that they ought not to be repealed, or so modified or 
 changed as to impair their efficiency ; and that laws ought to be 
 made for the punishment of those who attempt by rescue of the 
 slave, or other illegal means, to hinder or defeat the due execution 
 of said laws. 
 
 2. That all State laws which conflict with the fugitive slave acts 
 of Congress, or any other constitutional acts of Congress, or which, 
 in their operation, impede, hinder, or delay the free course and due 
 execution of any of said acts, are null and void by the plain pro- 
 visions of the Constitution of the United States ; yet those State 
 laws, void as they are, have given color to practice, and led to con- 
 sequences which have obstructed the due administration and 
 execution of acts of Congress, and especially the acts for the 
 delivery of fugitive slaves, and have thereby contributed much to 
 the discord and commotion now prevailing. Congress, therefore, 
 in the present perilous juncture, does not deem it improper, 
 respectfully and earnestly to recommend the repeal of those laws 
 to the several States which have enacted them, or such legislative 
 corrections or explanations of them as may prevent their being used 
 or perverted to such mischievous purposes. 
 
 3. That the act of the i8th of September, 1850, commonly called 
 the fugitive slave law, ought to be so amended as to make the fee 
 of the commissioner, mentioned in the eighth section of the act, 
 equal in amount, in the cases decided by claimant. And to avoid 
 misconstruction, the last clause of the fifth section of said act, 
 which authorizes the person holding a warrant for the arrest or 
 detention of a fugitive slave, to summon to his aid the posse 
 comitatiis, and which declares it to be the duty of all good citizens 
 to assist him in its execution, ought to be so amended as to 
 expressly limit the authority and duty to cases in which there shall 
 be resistance or danger of resistance or rescue. 
 
 4. That the laws for the suppression of the African slave-trade, 
 and especially those prohibiting the importation of slaves in the 
 United States, ought to be' made effectual, and ought to be thor- 
 oughly executed ; and all further enactments necessary to those 
 ends ought to be promptly made. 
 
 AMENDMENTS PROPOSED BY THE PEACE CONFERENCE, 1861. 
 
 ARTICLE XIII. 
 
 Section i. In all the present territory of the United States, 
 north of the parallel of 36° 30' of north latitude, involun- 
 tary servitude, except in punishment of crime, is prohibited. In 
 
1861] PEACE CONFERENCE AMENDMENTS. 719 
 
 all the present Territory south of that line, the status of persons 
 held to involuntary service or labor, as it now exists, shall not be 
 changed; nor shall any law be passed by Congress or the Terri- 
 torial Legislature to hinder or prevent the taking of such persons 
 from any of the States of this Union to said Territory, nor to 
 impair the rights arising from said relation ; but the same shall be 
 subject to judicial cognizance in the Federal courts, according to 
 the course of the common law. When any Territory north or 
 south of said line, within such boundary as Congress may pre- 
 scribe, shall contain a population equal to that required for a mem- 
 ber of Congress, it shall, if its form of government be republican, 
 be admitted into the Union on an equal footing with the original 
 States, with or without involuntary servitude, as the constitution of 
 such State may provide. 
 
 Sec. 2. No Territory shall be acquired by the United States, 
 except by discovery and for naval and commercial stations, depots, 
 and transit routes, without the concurrence of a majority of all the 
 Senators from States which allow involuntary servitude, and a 
 majority of all the Senators from States which prohibit that rela- 
 tion ; nor shall Territory be acquired by treaty, unless the votes of 
 a majority of the Senators from each class of States hereinbefore 
 mentioned be cast as a part of the two-thirds majority necessary 
 to the ratification of such treaty. 
 
 Sec. 3. Neither the Constitution nor any amendment thereof 
 shall be construed to give Congress power to regulate, abolish, or 
 control, within any State the relation established or recognized by 
 the laws thereof touching persons held to labor or involuntary 
 service therein, nor to interfere with or abolish involuntary service 
 in the District of Columbia without the consent of Maryland and 
 without the consent of the owners, or making the owners who do 
 not consent just compensation ; nor the power to interfere with or 
 prohibit Representatives and others from bringing with them to 
 the District of Columbia, retaining, and taking away, persons so 
 held to labor or service ; nor the power to interfere with or abolish 
 involuntary service in places under the exclusive jurisdiction of the 
 United States within those States and Territories where the same 
 is established or recognized ; nor the power to prohibit the removal 
 or transportation of persons held to labor or involuntary service in 
 any State or Territory of the United States to any other State or 
 Territory thereof where it is established or recognized by law or 
 usage, and the right during transportation, by sea or river, of 
 touching at ports, shores and landings, and of landing in case 
 of distress, shall exist ; but not the right of transit in or through 
 any State or Territory, or of sale or trafific, against the laws 
 thereof. Nor shall Congress have power to authorize any higher 
 rate of taxation on persons held to labor or service than on land. 
 The bringing into the District of Columbia of persons held to 
 labor or service, for sale, or placing them in depots to be afterwards 
 transferred to other places for sale as merchandise, is prohibited. 
 
 Sec. 4. The third paragraph of the second section of the fourth 
 article of the Constitution shall not be construed to prevent any of 
 
720 PEACE CONFERENCE AMENDMENTS. [1861 
 
 the States, by appropriate legislation, and through the action of 
 their judicial and ministerial officers, from enforcing the delivery 
 of fugitives from labor to the person to whom such service or labor 
 is due. 
 
 Sec. 5. The foreign slave-trade is hereby forever prohibited ; and 
 it shall be the duty of Congress to pass laws to prevent the impor- 
 tation of slaves, coolies, or persons held to service or labor, into 
 the United States and the Territories from places beyond the 
 limits thereof. 
 
 Sec. 6. The first, third and fifth sections, together with this 
 section of these amendments, and the third paragraph of the 
 second section of the first article of the Constitution, and the third 
 paragraph of the second section of the fourth article thereof, shall 
 not be amended or abolished without the consent of all the States. 
 
 Sec. 7. Congress shall provide by law that the United States 
 shall pay to the owner the full value of his fugitive from labor, in all 
 cases where the marshal or other officer, whose duty it was to 
 arrest such fugitive, was prevented from so doing by violence and 
 intimidation from mobs or riotous assemblages, or when after 
 arrest such fugitive was rescued by like violence or intimidation, 
 and the owner thereby deprived of the same ; and the accept- 
 ance of such payment shall preclude the owner from further claim 
 to such fugitive. Congress shall provide by law for securing to 
 the citizens of each State the privileges and immunities of citizens 
 in the several States. 
 
 CONSTITUTION OF THE CONFEDERATE STATES OF 
 AMERICA, 1861. 
 
 We, the people of the Confederate States, each State acting in 
 its sovereign and independent character, in order to form a perma- 
 nent federal government, establish justice, insure domestic tran- 
 quillity, and secure the blessings of liberty to ourselves and our 
 posterity — invoking the favor and guidance of Almighty God — do 
 ordain and establish this Constitution of the Confederate States of 
 America. 
 
 ARTICLE I. 
 
 SECTION I. ' All legislative powers herein delegated shall be 
 vested in a Congress of the Confederate States, which shall consist 
 of a Senate and House of Representatives. 
 
 Sec 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 be citizens of the Con- 
 federate States, and have the qualifications requisite for electors of 
 the most numerous branch of the State Legislature : but no person 
 of foreign birth, not a citizen of the Confederate States, shall be 
 allowed to vote for any officer, civil or political, State or federal. 
 
 ° No person shall be a Representative who shall not have attained 
 the age of twenty-five years, and be a citizen of the Confederate 
 
1861] CONFEDERATE CONSTITUTION. I^i 
 
 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 Confed- 
 eracy, according to their respective numbers — which shall be 
 determined by adding to the whole number of free persons, 
 including those bound to service for a term of years, and exclud- 
 ing Indians not taxed, three-fifths of all slaves. The actual enu- 
 meration shall be made within three years after the first meeting 
 of the Congress of the Confederate States, and within every sub- 
 sequent term of ten years, in such manner as they shall, by law, 
 direct. The number of Representatives shall not exceed one for 
 every fifty thousand, but each State shall have, at least, one Rep- 
 resentative ; and until such enumeration shall be made, the State 
 of South Carolina shall be entitled to choose six, the State of 
 Georgia ten, the State of Alabama nine, the State of Florida two, 
 the State of Mississippi seven, the State of Louisiana six, and the 
 State of Texas six. 
 
 * 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 and 
 other officers, and shall have the sole power of impeachment; 
 except that any judicial or other federal officer, resident and acting 
 solely within the limits of any State, may be impeached by a vote 
 of two-thirds of both branches of the Legislature thereof. 
 
 Sec. 3. ' The Senate of the Confederate States shall be com- 
 posed of two Senators from each State, chosen for six years by the 
 Legislature thereof at the regular session next immediately preced- 
 ing the commencement of the term of semce ; and each Senator 
 shall have one vote. 
 
 ^ Immediately after they shall be assembled, in consequence of 
 the first election, they shall be divided as equally as may be into 
 three classes. The seats of the Senators of the first class shall be 
 vacated at the expiration of the second year; of the second class, 
 at the expiration of the fourth year; and of 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 appointments until the next 
 meeting of the Legislature, which shall then fill such vacancies. 
 
 ' No person shall be a Senator who has not attained the age of 
 thirty years, and be a citizen of the Confederate States ; and who 
 shall not, when elected, be an inhabitant of the State for which he 
 shall be chosen. 
 
 * The Vice President of the Confederate States shall be Presi- 
 dent of the Senate ; but shall have no vote, unless they be equally 
 divided. ''' 
 
 * The Senate shall choose their other officers ; and also a Presi- 
 dent pro tempore in the absence of the Vice President, or when he 
 shall exercise the office of President of the Confederate States. 
 
722 CONFEDERATE CONSTITUTION. [1861 
 
 ' The Senate shall have the sole power to try all impeachments. 
 When silting for that purpose, they shall be on oath or affirma- 
 tion. When the President of the Confederate States is tried, the 
 Chief Justice shall preside ; and no person shall be convicted with- 
 out 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 Confederate States; 
 but the party convicted shall, nevertheless, be liable and subject 
 to indictment, trial, judgment, and punishment according to law. 
 
 Sec. 4. ' The times, places and manner of holding elections for 
 Senators and Representatives shall be prescribed in each State by 
 the Legislature thereof, subject to the provisions of this Constitu- 
 tion ; but the Congress may, at any time, by law, make or alter 
 such regulations, except as to the times and 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. 
 
 Sec. 5. ' Each House shall be the judge of the elections, returns 
 and qualifications of its own members, and a majority of each 
 shall constitute a quorum 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, pun- 
 ish its members for disorderly behavior, and, with the concurrence 
 of two-thirds of the whole number, 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 the yeas and nays of the mem- 
 bers 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, without 
 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. 
 
 Sec. 6. ' The Senators and Representatives shall receive a com- 
 pensation for their services, to be ascertained by law, and paid out 
 of the treasury of the Confederate States. They shall, in all cases, 
 except treason, felony and breach of the peace, be privileged from 
 arrest during their attendance af the session of 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 Confederate 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 Confederate States 
 shall be a member of either House during his continuance in 
 
1861] CONFEDERATE CONSTITUTION. 723 
 
 office. But Congress may, by law, grant to the principal officer in 
 each of the Executive Departments a seat upon the floor of either 
 House, with the privilege of discussing any measure appertaining 
 to his department. 
 
 Sec. 7. ' All bills for raising revenue shall originate in the 
 House of Representatives ; but the Senate may propose or concur 
 with amendments, as on other bills. 
 
 ' Every bill, which shall have passed both Houses, shall, before 
 it becomes a law, be presented to the President of the Confederate 
 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 other 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 suchcases, the votes of 
 both Houses shall be determined by yeas and nays, and the names 
 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 liave 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. The President may approve any appropriation and disap- 
 prove any other appropriation in the same bill. In such case he 
 shall, in signing the bill, designate the appropriations disapproved ; 
 and shall return a copy of such appropriations, with his objections, 
 to the House in vs'hich the bill shall have originated ; and the same 
 proceedings shall then be had as in case of other bills disapproved 
 by the President. 
 
 * Every order, resolution or vote, to which the concurrence of 
 both Houses may be necessary (except on a question of adjourn- 
 ment), shall be presented to the President of the Confederate 
 States ; and before the same shall take effect, shall be approved by 
 him ; or being disapproved by him, shall be repassed by two-thirds 
 of both Houses, according to the rules and limitations prescribed 
 in case of a bill. 
 
 Sec. 8. The Congress shall have power — 
 ' To lay and collect taxes, duties, imposts and excises for rev- 
 enue necessary to pay the debts, provide for the common defense, 
 and to carry on the government of the Confederate States ; but no 
 bounties shall be granted from the treasury ; nor shall any duties 
 or taxes on importations from foreign nations be laid to promote 
 or foster any branch of industry ; and all duties, imposts and 
 excises shall be uniform throughout the Confederate States : 
 ' To borrow money on the credit of the Confederate States: 
 3 To regulate commerce with foreign nations, and among the 
 several States, and with the Indian tribes ; but neither this, nor 
 any other clause contained in the Constitution, shall ever be con- 
 strued to delegate the power to Congress to appropriate money for 
 
724 CONFEDERATE CONSTITUTION. tl861 
 
 any internal improvement intended to facilitate commerce ; except 
 for the purpose of furnishing lights, beacons, and buoys, and other 
 aids to navigation upon the coasts, and the improvement of har- 
 bors and the removing of obstructions in river navigation, in all 
 which cases, such duties shall be laid on the navigation facilitated 
 thereby, as may be necessary to pay the costs and expenses 
 thereof : 
 
 * To establish uniform laws of naturalization, and uniform laws 
 on the subject of bankruptcies, throughout the Confederate States, 
 but no law of Congress shall discharge any debt contracted before 
 the passage of the same : 
 
 * To coin money, regulate the value thereof and of foreign coin, 
 and fix the standard of weights and measures : 
 
 ' To provide for the punishment of counterfeiting the securities 
 and current coin of the Confederate States : 
 
 ' To establish post offices and post routes ; but the expenses of 
 the Post Office Department, after the first day of March, in the 
 year of our Lord eighteen hundred and sixty-three, shall be paid 
 out of its own revenues : 
 
 * To promote the progress of science and useful arts, by secur- 
 ing 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 offenses against the law of nations : 
 
 " To declare war, grant letters of marque and reprisal, and make 
 rules concerning 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 Confederate States, suppress insurrections, and repel invasions : 
 
 " To provide for organizing, arming and disciplining the militia, 
 and for governing such part of them as may be employed in the 
 service of the Confederate States ; reserving to the States, respect- 
 ively, 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 one or two States and the acceptance of Congress, become the 
 seat of the Government of the Confederate States ; and to exercise 
 like authority over all places purchased by the consent of the Leg- 
 islature of the State in which the same shall be, for the erection of 
 forts, magazines, arsenals, dockyards, and other needful buildings : 
 and 
 
 '* 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 Confederate 
 States, or in any department or officer thereof. 
 
1861] CONFEDERATE CONSTITUTION. 725 
 
 Sec. 9. ' The importation of negroes of the African race, from 
 any foreign country, other than the slaveholding States or Terri- 
 tories of the United States of America, is hereby forbidden ; and 
 Congress is required to pass such laws as shall effectually prevent 
 the same. 
 
 ^ Congress shall also have power to prohibit the introduction of 
 slaves from any State not a member of, or Territory not belong- 
 ing to, this Confederacy. 
 
 ^ The privilege of the habeas corpus shall not be suspended, 
 unless when in cases of rebellion or invasion the public safety may 
 require it. 
 
 * No bill of attainder, ex post facto law, or law denying or 
 impairing the right of property in negro slaves, shall be passed. 
 
 ^ No capitation or other direct tax shall be laid unless in pro- 
 portion to the census or^ enumeration hereinbefore directed to be 
 taken. 
 
 6 No tax or duty shall be laid on articles exported from any 
 State, except by a vote of two-thirds of both Houses. 
 
 ' No preference shall be given by any regulation of commerce or 
 revenue to the ports of one State over those of another. 
 
 8 No money shall be drawn from the treasury, but in conse- 
 quence of appropriations 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. 
 
 ' Congress shall appropriate no money from the treasury except 
 by a vote of two-thirds of both Houses, taken by yeas and nays, 
 unless it be asked and estimated for by some one of the heads of 
 department, and submitted to Congress by the President ; or for 
 the purpose of paying its own expenses and contingencies; or 
 for the payment of claims against the Confederate States, the jus- 
 tice of which shall have been judicially declared by a tribunal for 
 the investigation of claims against the Government, which it is 
 hereby made the duty of Congress to establish. 
 
 '" All bills appropriating money shall specify, in federal cur- 
 rency, the exact amount of each appropriation, and the purposes 
 for which it is made ; and Congress shall grant no extra compen- 
 sation to any public contractor, office^ agent, or servant after such 
 contract shall have been made, or such service rendered. 
 
 " No title of nobility shall be granted by tlie Confederate States ; 
 and no person holding any office of profit or trust under them 
 shall, without the consent of Congress, accept of any present, 
 emolument, office or title, of any kind whatever, from any king, 
 prince, or foreign State. 
 
 " Congress shall make no law respecting an establishment of 
 religion, or prohibiting the free exercise thereof; or abridging the 
 freedom of speech, or of the press ; or the right of the people 
 peaceably to assemble and petition the Government for a redress 
 of grievances. 
 
 " 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. 
 
7*6 CONFEDERATE CONSTITUTION. [1861 
 
 " No soldier shall, in time of peace, be quartered in any house 
 without the consent of the owner ; nor in time of war, but in a 
 manner to be prescribed by law. 
 
 " The right of the 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 prob- 
 able cause, supported by oath or affirmation, and particularly 
 describing the place to be searched, and the persons or things to 
 be seized. 
 
 '* 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 offense, to be twice 
 put in jeopardy of life or limb ; nor be compelled in any crimi- 
 nal case, to be a witness against himself; nor be deprived of 
 life, liberty or property without due process of law ; nor shall pri- 
 vate property be taken for public use without just compensation. 
 
 "In all criminal prosecutions, the accused shall enjoy the right 
 to a speedy and public trial, by an impartial jury of the State and 
 district wherein the crime shall have been committed, which dis- 
 trict shall have been previously ascertained by law, and to be 
 informed of the nature and cause of the accusation ; to be con- 
 fronted with the witnesses against him ; to have compulsory 
 process for obtaining witnesses in his favor; and to have the 
 assistance of counsel for his defense. 
 
 " 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 so tried by a jury shall be otherwise re-examined in 
 any court of the Confederacy, than according to the rules of the 
 common law. 
 
 " Excessive bail shall not be required, nor excessive fines im- 
 posed, nor cruel and unusual punishments inflicted. 
 
 ^ Every law or resolution having the force of law, shall relate to 
 but one subject, and that shall be expressed in the title. 
 
 Sec. io. ' No State shall enter into any treaty, alliance, or con- 
 federation ; grant letters of, marque and reprisal ; coin money ; 
 make anything but gold and silver coin a tender in payment of 
 debts ; pass any bill of attainder, or ex post facto law, or law im- 
 pairing 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 produce of all duties and imposts, laid by any State on imports 
 or exports, shall be for the use of the treasury of the Confederate 
 States ; and all such laws shall be subject to the revision and con- 
 trol of Congress. 
 
 ' No State shall, without the consent of Congress, lay any duty 
 on tonnage, except on sea-going vessels, for the improvement of 
 its rivers and harbors navigated by the said vessels ; but such 
 duties shall not conflict with any treaties of the Confederate States 
 
1861] CONFEDERATE CONSTITUTION. 727 
 
 with foreign nations, and any surplus revenue, thus derived, shall, 
 after making such impiovement, be paid into the common 
 treasury ; nor shall any Slate 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. But when 
 any river divides or flows through two or more States, they may 
 enter into compacts with each other to improve the navigation 
 thereof. 
 
 ARTICLE II. 
 
 Section i. 'The executive power shall be vested in a President 
 of the Confederate States of America. He and the Vice President 
 shall hold their offices for the term of six years ; but the Presi- 
 dent shall hot be re-eligible. The President and Vice President 
 shall 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 Representative, or 
 person holding an office of trust or profit under the Confederate 
 States, shall be appointed an elector. 
 
 2 The electors shall meet in their respective States and vote by 
 ballot for President and Vice President, one of whom, at least, 
 shall not be an inhabitant of the same State with themselves ;" they 
 shall name in their ballots the person voted for as President, and 
 in distinct ballots the person voted for as Vice President, 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 list they shall sign and certify, and transmit, 
 sealed, to the seat of the government of the Confederate States, 
 directed to the President of the Senate ; the President of the 
 Senate shall, in the presence of the Senate and House of Repre- 
 sentatives, open all the certificates, and the votes shall then be 
 counted ; the person having the greatest number of votes for Presi- 
 dent 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 numbers, not 
 exceeding three, on the list of those voted for as President, the 
 House of Representatives 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 case of the 
 death, or other constitutional disability of the President. 
 
 *The person having the greatest number of votes as Vice Presi- 
 dent shall be the Vice President, if such number be a majority of 
 
728 CONFEDERATE CONSTITUTION. [18G1 
 
 the whole number of electors appointed ; and, if no person have a 
 majority, then, from the two highest numbers 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 Presi- 
 dent shall be eligible to that of Vice President of the Confederate 
 States. 
 
 ' 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 Confederate States. 
 
 ' No person, except a natural born citizen of the Confederate 
 States, or a citizen thereof, at the time of the adoption of this Con- 
 stitution, or a citizen thereof born in the United States prior to the 
 20th of December, i860, shall be eligible to the office of President ; 
 neither shall any person be eligible to that office who shall not 
 have attained the age of thirty-five years, and been fourteen years 
 a resident within the limits of the Confederate States as they may 
 exist at the time of his election. 
 
 ' In case of the removal of the President from office, or of his 
 death, resignation, or inability to discharge the powers and duties 
 of that 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 
 Confederate States, or any of them. 
 
 '" Before he enters 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 Confederate States, and will, to the 
 best of my ability, preserve, protect, and defend the Constitution 
 thereof." 
 
 Sec. 2. ' The President shall be commander-in-chief of the 
 army and navy of the Confederate States, and of the militia of the 
 several States, when called into the actual service of the Confede- 
 rate States ; he may require the opinion, in writing, of the principal 
 officer in each of the Executive Departments, and upon any 
 subject relating to the duties of their respective offices ; and he 
 shall have power to grant reprieves and pardons for offenses 
 against the Confederate 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, 
 
1861] CONFEDERATE CONSTITUTION. 729 
 
 and all other officers of the Confederate States, whose appoint- 
 ments are not herein otherwise provided for, and which shall be 
 established by law ; but the Congress may, by law, vest the ap- 
 pointment of such inferior ofificers, as they think proper, in ihe 
 President alone, in the courts of law, or in the heads of Depart- 
 ments. 
 
 * The principal officer in each of the Executive Departments, 
 ami all persons connected with tlie diplomatic service, may be re- 
 moved from office at the pleasure of the President. All other civil 
 officers of the Executive Department may be removed at any time 
 by the President, or other appointing power, when their services 
 are unnecessary, or for dishonesty, incapacity, inefficiency, mis- 
 conduct, or neglect of duty ; and when so removed, the removal 
 shall be reported to the Senate, together with the reasons therefor. 
 
 *The President shall have pov\er to fill all vacancies that may 
 happen during the recess of the Senate, by granting commissions 
 which shall expire at the end of their next session ; but no person 
 rejected by the Senate shall be reappointed to the same office dur- 
 ing their ensuing recess. 
 
 Sec. 3. ' The President shall, from time to time, give to the 
 Congress information of the State of the Confederacy, and recom- 
 mend to their consideration such measures as he shall judge 
 necessary and expedient : he may, on extraordinary occasions, 
 convene both Houses, or either of them ; and in case of disagree- 
 ment between them, with respect to the time of adjournment, he 
 may adjourn them to such a 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 commis- 
 sion all the officers of the Confederate States. 
 
 Sec. 4. ' The President, Vice President, and all civil officers of' 
 the Confederate States, shall be removed from office on impeach- 
 ment for, and conviction of, treason, bribery or other high crimes 
 and misdemeanors. 
 
 ARTICLE III. 
 
 Section i. 'The judicial power of the Confederate States shall 
 be vested in one Supreme 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 dur- 
 ing their continuance in office. 
 
 Sec. 2. ' The judicial power shall extend to all cases arising 
 under this Constitution, the laws of the Confederate States, and 
 treaties made or which shall be made under their authority ; to all 
 cases affecting ambassadors, other public ministers and consuls ; 
 to all cases of admiralty and maritime jurisdiction ; to con- 
 troversies to which the Confederate States shall be a party ; to 
 controversies between two or more States ; between a State and 
 citizens of another State where the State is plaintiff ; between 
 
730 CONFEDERATE CONSTITUTION. tl861 
 
 citizens claiming lands under grants of different States, and be- 
 between a State or the citizens thereof, and foreign States, citizens 
 or subjects ; but no State shall be sued by a citizen or subject of 
 any foreign State. 
 
 '' In all cases affecting ambassadors, other public ministers, and 
 consuls, and those in which a State shall be a party, the Supreme 
 Court shall have original jurisdiction. In all the other cases 
 before mentioned, the Suprejne Court shall have appellate jurisdic- 
 tion, both 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. 
 
 Sec. 3. ' Treason against the Confederate States shall consist 
 only in levying war against them, or in adhering to their enemies, 
 giving them aid and comfort. No person shall be convicted of 
 treason unless on the testimony of two witnesses to the same 
 overt act, or on confession in open court. 
 
 ' 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. 
 
 Section i. ' 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 proceedings shall be 
 proved, and the effect thereof. 
 
 Sec. 2. ' The citizens of each State shall be entitled to all the 
 privileges and immunities of citizens in the several States, and shall 
 have the right of transit and sojourn in any State of this Con- 
 federacy, with their slaves and other property ; and the right of 
 property in said slaves shall not be thereby impaired. 
 
 'A person charged in any State with treason, felony, or other 
 crime against the laws of such State, who shall flee from justice, 
 and be found in another State, shall, on demand of the Executive 
 authority of the State from which he fled, be delivered up to be 
 removed to the State having jurisdiction of the crime. 
 
 ' No slave or other person held to service or labor in any State 
 or territory of the Confederate States, under the laws thereof, 
 escaping or lawfully carried 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 slave belongs, or to whom such service or labor may be due. 
 
 Sec. 3. ' Other States may be admitted into this Confederacy 
 by a vote of two-thirds of the whole Houseof Representatives, and 
 two-thirds of the Senate, the Senate voting by States ; but no new 
 State shall be formed or erected within the jurisdiction of any 
 
1861] CONFEDERATE CONSTITUTION. 731 
 
 other State ; nor any State be foimed by the junction of two or 
 more States, or parts of States, without the consent of the Legis- 
 latures 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 concerning the property of the Con- 
 federate States, including the lands thereof. 
 
 ' The Confederate States may acquire new territory ; and 
 Congress shall have power to legislate and provide governments 
 for the inhabitants of all territory belonging to the Confederate 
 States, lying without the limits of the several States ; and may 
 permit them, at such times, and in such manner as it may by law 
 provide, to form States to be admitted into the Confederacy. In 
 all such territory, the institution of negro slavery as it now exists 
 in the Confederate States, shall be recognized and protected by 
 Congress, by the territorial government ; and the inhabitants of 
 the several Confederate States and Territories, shall have the right 
 to take to such territory any slaves, lawfully held by them in any 
 of the States or territories of the Confederate States. 
 
 *The Confederate States sliall guarantee to every State that now 
 is or hereafter may become a member of this Confederacy, a re- 
 publican form of government, and shall protect each of them 
 against invasion ; and on application of the Legislature (or of the 
 Executive, when the Legislature is not in session) against domes- 
 tic violence. 
 
 ARTICLE V. 
 
 ' Upon the demand of any three States, legally assembled in 
 their several Conventions, the Congress shall summon a conven- 
 tion of all the States, to take into consideration such amendments 
 to the Constitution as the said States shall concur in suggesting at 
 the time when the said demand is made ; and should any of the 
 proposed amendments to the Constitution be agreed on by the 
 said Convention — voting by States — and the same be ratified by 
 the Legislatures of two-thirds of the several States, or by Conven- 
 tions in two-thirds thereof — as the one or the other mode of rati- 
 fication may be proposed by the general Convention — they shall 
 thenceforward form a part of this Constitution. But no State 
 shall, without its consent, be deprived of its equal representation 
 in the Senate. 
 
 ARTICLE VI. 
 
 ' The Government established by this Constitution is the suc- 
 cessor of the Provisional Government of the Confederate States of 
 America, and all the laws passed by the latter shall continue in 
 force until the same shall be repealed or modified ; and all the 
 officers appointed by the same shall remain in office until their 
 successors are appointed and qualified, or the offices abolished. 
 
 ^ All debts contracted and engagements entered into before the 
 adoption of this Constitution shall be as valid against the Con- 
 federate States under this Constitution as under the Provisional 
 Government. 
 
732 CONFEDERATE CONSTITUTION. [1861 
 
 ' This Constitution, and tlie laws of the Confederate States, 
 made in pursuance thereof, and all treaties made, or which shall 
 be made, under the authority of the Confederate States, shall be 
 the supreme law of the land ; and the judges in every State shall 
 be bound thereby, anything 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 Confederate States and of the several 
 States, shall be bound by oath or affirmation, to support this Con- 
 stitution ; but no religious test shall ever be required as a quah- 
 fication to any office or public trust under the Confederate 
 States. 
 
 ' The enumeration, in the Constitution, of certain rights, shall 
 not be construed to deny or disparage others retained by the 
 people of the several States. 
 
 * The powers not delegated to the Confederate States by the 
 Constitution, nor prohibited by it to the States, are reserved to the 
 States, respectively, or to the people thereof. 
 
 ARTICLE Vn. 
 
 ' The ratification of the conventions of five States shall be suf- 
 ficient for the establishment of this Constitution between the 
 States so ratifying the same. 
 
 ' When five States shall have ratified this Constitution, in the 
 manner above specified, the Congress under the Provisional Con- 
 stitution shall prescribe the time for holding the election of Presi- 
 dent and Vice President ; and, for the meeting of the Electoral 
 College ; and, for counting the votes, and inaugurating the Presi- 
 dent. They shall, also, prescribe the time for holding the first 
 election of members of Congress under this Constitution, and the 
 time for assembling the same. Until the assembling of such 
 Congress, the Congress under the Provisional Constitution shall 
 continue to exercise the legislative powers granted them ; not ex- 
 tending beyond the time limited by the Constitution of the Pro- 
 visional Government. 
 
 ACT CREATING AN ELECTORAL COMMISSION, 1 877. 
 
 AN ACT to provide for and regulate the counting of votes for 
 President and Vice President, and the decision of questions aris- 
 ing thereon, for the term commencing March fourth, anno 
 Domini eighteen hundred and seventy-seven. 
 
 Be it enacted by the Senate and House of Representatives of the 
 United States of America in Congress assembled. That the Sen- 
 ate and House of Representatives shall meet in the hall of the 
 House of Representatives, at the hour of one o'clock post merid- 
 ian, on the first Thursday in February, anno Domini eighteen hun- 
 dred and seventy-seven ; and the President of the Senate shall be 
 
1877] ELECTORAL COMMISSION ACT. 733 
 
 their presiding officer. Two tellers shall be previously appointed 
 on the part of the Senate, and two on the part of the House of 
 Representatives, to whom shall be handed, as they are opened by 
 the President of the Senate, all the certificates, and papers purport- 
 ing to be certificates, of the electoral votes, which certificates and 
 papers shall be opened, presented, and acted upon in the alphabeti- 
 cal order of the States, beginning with the letter A ; and said tell- 
 ers having then read the same in the presence and hearing of the 
 two houses, shall make a list of the votes as they shall appear 
 from the said certificates ; and the votes having been ascertained 
 and counted as in this act provided, the result of the same shall be 
 delivered to the President of the Senate, who shall thereupon 
 announce the state of the vote, and the names of the persons, if 
 any, elected, which announcement shall be deemed a sufficient 
 declaration of the persons elected President and Vice President of 
 the United States, and, together with a list of the votes, be entered 
 on the journals of the two houses. Upon such reading of any 
 such certificate or paper when there shall be only one return from 
 a State, the President of the Senate shall call for objections, if any. 
 Every objection shall be made in writing, and shall state clearly 
 and concisely, and without argument, the ground thereof, and 
 shall be signed by at least one Senator and one Member of the 
 House of Representatives before the same shall be received. When 
 all objections so made to any vote or paper from a State shall 
 have been received and read, the Senate shall thereupon withdraw, 
 and such objections shall be submitted to the Senate for its deci- 
 sion ; and the Speaker of the House of Representatives shall, in like 
 manner, submit such objections to the House of Representatives 
 for its decision ; and no electoral vote or votes from any State 
 from which but one return has been received shall be rejected ex- 
 cept by the affirmative vote of the two houses. When the two 
 houses have voted, they shall immediately again meet, and the 
 presiding officer shall then announce the decision of the question 
 submitted. 
 
 Section 2. That if more than one return, or paper purporting to 
 be a return from a State, shall have been received by the President of 
 the Senate, purporting to be the certificates of electoral votes given 
 at the last preceding election for President and Vice President in 
 such State (unless they shall be duplicates of the same return,) all 
 such returns and papers shall be opened by him in the presence of 
 the two houses when met as aforesaid, and read by the tellers, and 
 all such returns and papers shall thereupon be submitted to the 
 judgment and decision as to which is the true and lawful electoral 
 vote of such State, of a commission constituted as follows, namely: 
 During the session of each house on the Tuesday next preceding the 
 first Thursday in February, eighteen hundred and seventy-seven, 
 each house shall, by viva voce vote, appoint five of its members, 
 who with the five associate justices of the Supreme Court of the 
 United States, to be ascertained as hereinafter provided, shall con- 
 stitute a commission for the decision of all questions upon or in 
 respect of such double retyrns narned in this sectiop. On the 
 
734 ELECTORAL COMMISSION ACT. [1877 
 
 Tuesday next preceding the first Thursday in February, anno 
 Domini eighteen hundred and seventy-seven, or as soon thereafter 
 as may be, the associate justices of the Supreme Court of the 
 United States now assigned to the first, third, eighth, and ninth 
 circuits shall select, in such manner as a majority of them shall 
 deem fit, another of the associate justices of said court, Virhich 
 five persons shall be members of said commission ; and the person 
 longest in commission of said five justices shall be the president of 
 said commission. The members of said commission shall respect- 
 ively take and subscribe the following oath : " I, , do 
 
 solemnly swear (or affirm, as the case may be) that I will impar- 
 tially examine and consider all questions submitted to the commis- 
 sion of which I am a member, and a true judgment give thereon, 
 agreeably to the Constitution and the laws : so help me God ; " 
 which oath shall be filed with the Secretary of the Senate. When 
 the commission shall have been thus organized, it shall not be in 
 the power of either house to dissolve the same, or to withdraw any 
 of its members ; but if any such Senator or member shall die or 
 become physically unable to perform the duties required by this 
 act, the fact of such death or physical inability shall be by said 
 commission, before it shall proceed further, communicated to the 
 Senate or House of Representatives, as the case may be, which 
 body shall immediately and without debate proceed by viva 
 voce vote to fill the place so vacated, and the person so appointed 
 shall take and subscribe the oath hereinbefore prescribed, and be- 
 come a member of said commission ; and, in like manner, if any of 
 said justices of the Supreme Court shall die or become physically 
 incapable of performing the duties required by this act, the other 
 of said justices, members of the said commission, shall immediately 
 appoint another justice of said court a member of said commission, 
 and, in such appointments, regard shall be had to the impartiality 
 and freedom from bias sought by the original appointments to said 
 commission, who shall thereupon immediately take and subscribe 
 the oath hereinbefore prescribed, and become a member of said 
 commission to fill the vacancy so occasioned. All the certificates 
 and papers purporting to be certificates of the electoral votes of 
 each State shall be opened, in the alphabetical order of the States, 
 as provided in section one of this act ; and when there shall be 
 more than one such certificate or paper, as the certificate and 
 papers from such State shall so be opened, (excepting duplicates of 
 the same return,) they shall be read by the tellers, and thereupon 
 the President of the Senate shall call for objections, if any. Every 
 objection shall be made in writing, and shall state clearly and con- 
 cisely, and without argument, the ground thereof, and shall be 
 signed by at least one Senator and one member of the House of 
 Representatives before the same shall be received. When all such 
 objections so made to any certificate, vote, or paper from a State 
 shall have been received and read, all such certificates, votes, and 
 papers so objected to, and all papers accompanying the same, 
 together with such objections, shall be forthwith submitted to said 
 commission, which shall proceed to consider the same, with the same 
 
1877] ELECTORAL COMMISSION ACT. 735 
 
 powers, if any, now possessed for that purpose by the two houses 
 acting separately or together, and, by a majority of votes, decide 
 whether any and what votes from such State are the votes pro- 
 vided for by the Constitution of the United States, and how many 
 and what persons were duly appointed electors in such State, and 
 may therein take into view such petitions, depositions, and other 
 papers, if any, as shall, by the Constitution and now existing law, 
 be competent and pertinent in such consideration ; which decision 
 shall be made in writing, stating briefly the ground thereof, and 
 signed by the members of said commission agreeing therein ; 
 whereupon the two houses shall again meet, and such decision 
 shall be read and entered in the journal of each house, and the 
 counting of the votes shall proceed in conformity therewith, unless, 
 upon objection made thereto in writing by at least five Senators 
 and five members of the House of Representatives, the two houses 
 shall separately concur in ordering otherwise, in which case such 
 concurrent order shall govern. No votes or papers from any other 
 State shall be acted upon until the objections previously made to 
 the votes or papers from any State shall have been finally dis- 
 posed of. 
 
 Sec. 3. That while the two houses shall be in meeting, as 
 provided in this act, no debate shall be allowed and no question 
 shall be put by the presiding officer, except to either house on a 
 motion to withdraw ; and he shall have power to preserve order. 
 
 Sec. 4. That when the two houses separate to decide upon an 
 objection that may have been made to the counting of any electoral 
 vote or votes from any State, or upon objection to a report of said 
 commission, or other question arising under this act, each Senator 
 and Representative may speak to such objection or question ten 
 minutes,and not oftener than once; but after such debate shall 
 have lasted two hours, it shall be the duty of each house to put the 
 main question without further debate. 
 
 Sec. 5. That at such joint meeting of the two houses, seats 
 shall be provided as follows : For the President of the Senate, 
 the Speaker's chair ; for the Speaker, immediately upon his left ; 
 the Senators in the body of the hall upon the right of the presid- 
 ing officer ; for the Representatives, in the body of the hall not 
 provided for the Senators; for the tellers. Secretary of the Senate, 
 and Clerk of the House of Representatives, at the Clerk's desk ; 
 for the other officers of the two houses, in front of the Clerk's 
 desk and upon each side of the Speaker's platform. Such joint 
 meeting shall not be dissolved until the count of electoral votes 
 shall be completed and the result declared ; and no recess shall be 
 taken unless a question shall have arisen in regard to counting any 
 such votes, or otherwise under this act, in which case it shall be 
 competent for either house, acting separately, in the manner here- 
 inbefore provided, to direct a recess of such house not beyond the 
 next day, Sunday excepted, at the hour of ten o'clock in the fore- 
 noon. And while any question is being considered by said com- 
 mission, either house may proceed with its legislative or other 
 business. 
 
736 ELECTORAL COMMISSION ACT. [1877 
 
 Sec. 6. That nothing in this act shall be held to impair or 
 affect any right now existing under the Constitution and laws to 
 question, by proceeding in the judicial courts of the United States, 
 the right or title of the person who shall be declared elected, or 
 who shall claim to be President or Vice President of the United 
 States, if any such right exists. 
 
 Sec. 7. That said commission shall make its own rules, keep 
 a record of its proceedings, and shall have power to employ such 
 persons as may be necessary for the transaction of its business and 
 the execution of its powers. 
 
 Approved, January 29, 1877. 
 
 ABSTRACT OF THE DECISION IN THIRD LEGAL 
 TENDER CASE, 1884.* 
 
 . . . The single question, therefore, to be considered, and upon 
 the answer to which the judgment to be rendered between these 
 parties depends, is whether notes of the United States, issued in 
 time of war, under acts of Congress declaring them to be a legal 
 tender in payment of private debts, and afterward in time of peace 
 redeemed and paid in gold coin at the treasury, and then reissued 
 under the act of 1878, can, under the Constitution of the United 
 States, be a legal tender in payment of such debts. 
 
 . . . No question of the scope and extent of the implied powers 
 of Congress under the Constitution can be satisfactorily discussed 
 without repeatingmuch of the reasoning of Chief Justice Marshall 
 in the great judgment in McCulloch vs. Maryland, (4 Wheat. 316), 
 by which the power of Congress to incorporate a bank was dem- 
 onstrated and affirmed, notwithstanding the Constitution does not 
 enumerate, among the powers granted, that of establishing a bank 
 or creating a corporation. 
 
 The people of the United States by the Constitution established 
 a National Government, with sovereign powers, legislative, execu- 
 tive and judicial. " The Government of the Union," said Chief 
 Justice Marshall, " though limited in its powers, is supreme within 
 its sphere of action ; " " and its laws, when made in pursuance of 
 the Constitution, form the supreme law of the land." " Among 
 the enumerated powers of Government we find the great powers 
 to lay and collect taxes ; to borrow money; to regulate commerce ; 
 to declare and conduct a war; and to raise and support armies and 
 navies. The sword and the purse, all the external relations, and 
 no inconsiderable portion of the industry of the nation are en- 
 trusted to its government " (4 Wheat. 405, 406, 407). 
 
 A constitution establishing a frame of government, declaring 
 fundamental principles, and creating a national sovereignty, and 
 intended to endure for ages, and to be adapted to the various crises 
 of human affairs, is not to be interpreted with the strictness of a 
 private contract. The Constitution of flie United States, by apt 
 
 *In full in 110 U. S. 421, 
 
18S4] LEGAL TENDER DECISION. Ill 
 
 words of designation or general description, marks the outlines of 
 the powers granted to the National Legislature, but it does not un- 
 dertake with the precision and detail of a code of laws to enumer- 
 ate the subdivisions of those powers or to specify all the means by 
 which they may be carried into execution. Chief Justice Mar- 
 shall, after dwelling upon this view, as required by the very nature 
 of the Constitution, by the language in which it is framed, by the 
 limitations upon the general powers of Congress introduced in 
 the ninth section of the first article, and by the omission to use 
 any restrictive term which might prevent its receiving a fair and 
 just interpretation, added these emphatic words : " In considering 
 this question, then, we must never forget that it is a constitution 
 we are expounding " (4 Wheat. 407. See, also, p. 415). 
 
 ... In McCulloch vs. Maryland he more fully developed the 
 same view, concluding thus : " We admit, as all must admit, that 
 the powers of the Government are limited, and that its limits are 
 not to be transcended. But we think the sound construction of 
 the Constitution must allow to the National Legislature that dis- 
 cretion with respect to the means by which the powers it confers 
 are to be carried into execution, which will enable that body to 
 perform the high duties assigned to it in the manner most benefi- 
 cial to the people. Let the end be legitimate, let it be within the 
 scope of the Constitution, and all means which are appropriate, 
 which are plainly adapted to that end, which are not prohibited, 
 but consist with the letter and spirit of the Constitution, are con- 
 stitutional " (4 Wheat. 421). 
 
 The rule of interpretation thus laid down has. been constantly 
 adhered to and acted on by this court, and was accepted as 
 expressing the true test by all the judges who took part in the 
 former discussions of the power of Congress to make the treasury 
 notes of the United States a legal tender in payment of private 
 debts. . . 
 
 It appears to us to follow, as a logical and necessary conse- 
 quence, that Congress has the power to issue the obligations of the 
 United States in such form, and to impress upon them' such quali- 
 ties as currency for the purchase of merchandise and the payment 
 of debts, as accord with the usage of sovereign governments. The 
 power, as incident to the power of borrowing money and issuing 
 liills or notes of the Government for money borrowed, of impress- 
 ing upon those bills or notes the quality of being a legal tender for 
 the payment of private debts, was a power universally understood 
 to belong to sovereignty, in Europe and America, at the time of 
 the framing and adoption of the Constitution of the United States. 
 The governments of Europe, acting through the monarch or the 
 legislature, according to the distribution of powers under their 
 respective constitutions, had and have as sovereign a power of 
 is.sutng paper money as of stamping coin. This power has been 
 distinctly recognized in an important modern case, ably argued 
 and fully considered, in which the Emperor of Austria, as King of 
 Hungary, obtained from the English Court of Chancery an injunc- 
 tion against the issue in England, without his license, of notes 
 
73^ LEGAL TENDER DECISION. L1884 
 
 purporting to be public paper money of Hungary (Austria vs. 
 Day, 2 Giff. 628, and 3 D. F. & J. 217). The power of issuing 
 bills of credit, and makiiig them, at the discretion of the legisla- 
 ture, a tender in payment of private debts, had long been exercised 
 in this country by the several Colonies and States ; and during the 
 Revolutionary War the States, upon the recommendation of the 
 Congress of the Confederation, had made the bills issued by Con- 
 gress a legal tender (see Craig vs. Missouri, 4 Pet. 435, 453; 
 Briscoe w. Bank of Kentucky, 11 Pet. 257, 313, 334-336; Legal 
 Tender Cases, 12 Wall. 557, 558, 622 ; Phillips on American Paper 
 Currency, passim). The exercise of this power not being pro- 
 hibited to Congress by the Constitution, it is included in the power 
 expressly granted to borrow money on the credit of the United 
 States. . . . 
 
INDFX 
 
 All figures in the following Index in heavy-face type refer to 
 The Federalist proper. 
 
 All references after which an n is placed refer to the Editor's 
 notes to The Federalist. 
 
 All references after which a £■ is placed refer to the Constitu- 
 tion of the United States. 
 
 All references in Roman numerals are a key to the introduction 
 and to the preliminary material. 
 
 All other references are to the matter contained in the Appen- 
 dix, the Constitution of the United States excepted. 
 
 Accounts of public money shall 
 be published, 6o8c 
 
 Acheean League, 96, 111-114, 237; 
 'One of the best of ancient 
 leagues, 96; Resemblance of, 
 to government created by 
 Constitution, 305 ; Aban- 
 doned the experiment of 
 plural praetors, 468. 
 
 Aots: Congress shall prescribe 
 the manner of proving, 
 i>\i,c; Full faith and credit 
 shall be given to, 6i8.r, 730. 
 
 Adams, John, 5i2». 
 
 AdamB, J. Q., 32gn. 
 
 Adams, Samuel, in. 
 
 Adjournment, 601 ir, 61 4<:; Execu- 
 tive power over legislative, 
 461. 
 
 Admiralty {see also Maritime 
 Jurisdiction) : Causes deter- 
 miried-without jury, 558; Fed- 
 eral power over, 6i5r. 
 
 Agriculture (see also Landed In- 
 terests) : Interests of, inter- 
 woven with those of com- 
 merce, 73; Only a concern of 
 local legislation, 104; Some 
 States little more than socie- 
 ties of husbandmen, 376; Pre- 
 dominance of, in the U. S., 
 399. 
 
 Alaska, 285». 
 
 Albany, 382. 
 
 Alien (see also Foreign Influence; 
 Naturalization) : Feeling 
 against, in America, I39»; 
 Antagonism to, usually the 
 cloak of religious intolerance, 
 I3g»; National and State 
 powers as to, 278; Possible 
 influence of, in producing do- 
 mestic insurrection, 289; Es- 
 pecial danger from slave, 
 290; National vs. State 
 powers over, 681. 
 
 Alien law: Unconstitutionality 
 of, 681, 685. 
 
 Alienage, 651, 654, 661. 
 
 Allegiance (see also Oath) : State 
 vs. national, 702. 
 
 Alliance: No State shall enter 
 into any, 608c. 
 
 Ambassadors : The President 
 may appoint, 6i4£- ; Judicial 
 power of the United States 
 shall extend to, ti^c, (>l^c. 
 
 Amendment : Effect of Eleventh, 
 xiv; Clause in Constitution 
 concerning, 291; Limitations 
 upon, 291; System of obtain- 
 ing, 686; Greater ease of ob" 
 taining single, 686; Not de- 
 pendent on Congress, 587 ; 
 
 739 
 
740 
 
 INDEX. 
 
 Amendment — Continued. 
 
 Attempts to obtain, prior to 
 adoption of Constitution, 587; 
 Congress may propose, 
 620^^ ; On application of the 
 legislatures. Congress shall 
 call a convention to propose, 
 6201: ; Valid when ratified by 
 the legislatures of, or by 
 conventions in, three-fourths 
 of the States, 620^ ; To the 
 Confederate Constitution, 
 how made, 731. 
 
 Amendments, Proposed : Massa- 
 chusetts, 632; South Carolina, 
 633; New Hampshire, 633; 
 Virginia, 635 ; New York, 
 639; North Carolina, 646; 
 By Conventions, 676; Jeffer- 
 son's Louisiana, 686 ; Hart- 
 ford Convention, 687 ; Crit- 
 tenden's, 716; Peace Con- 
 ference, 718. 
 
 America (see also Untied States) : 
 Not exempted from common 
 calamities, 877; The United 
 States ascendant in, 70; Ex- 
 clusion of European influence 
 from, 7o». 
 
 American Citizen : Proud title of; 
 706. 
 
 American Governments: Improve- 
 ment over ancient, S4; Defect 
 of, 56. 
 
 American People (see also Citizens; 
 Majority ; People ; Slaves) : 
 Fear of, xii ; Limited influ- 
 ence of, in U. S. Government, 
 xii; Insist upon selecting 
 President, xvii ; Vindication 
 of, in choosing President, 
 xvii ; Self-control of, xix ; 
 Great body of, in favor of 
 union, XXV, 6, 9, 11, 12; Capa- 
 city of, for self-government, 
 1 ; Prosperity of, depends 
 on union, 8 ; Intelligent and 
 well-informed, 12 ; Kinship 
 of, 86 ; Feel no blind venera- 
 tion for antiquity or custom, 
 86; Numerous innovationsof. 
 in favor of private and public 
 happiness, 87 ; Frequently 
 act without precedent, 87 ; 
 Quite as likely to side with 
 
 American People— Continued. 
 National as with State Gov- 
 ernments, 102, 169, 196 ; Will 
 entirely control National 
 Government, 104 ; Majority 
 of, controlled by minority 
 under Confederation, 136 ; 
 Gave no sanction to Articles 
 of Confederation, 143, 292 ; 
 The only source of legiti- 
 mate authority, 143, 334 ; 
 Will be more apt to side with 
 their local governments, 157; 
 Too discerning to be argued 
 into anarchy, 163 ; Prejudice 
 of, against standing armies, 
 derived from Great Britain, 
 164 ; Theory that they will 
 oppose Federal authority, 
 169; Hold the balance be- 
 tween State and National 
 governments, 177, 197 ; The 
 final judges of national law, 
 203, 311 ; In ratifying Con- 
 stitution will act in their 
 corporate capacity, 248, 249 ; 
 Not a nation, 249 ; A national 
 body as regards House of 
 Representatives, 249; Trans- 
 cendent right of, to abolish 
 or alter governments, 268 ; 
 Pass ordinances of nullifica- 
 tion and secession, 293»; The 
 last resort for unconstitu- 
 tional Federal acts, 300 ; Rel- 
 ative greater importance of 
 State governments to, 309, 
 311 ; Ultimate authority re- 
 sides in, 311 ; Only possible 
 method of National Govern- 
 ment securing preference of, 
 312 ; Advantage of, as to 
 arms, 317 ; Necessary protec- 
 tion of minority of, from ma- 
 jority, 346; Possible disagree- 
 ment of, with State govern- 
 ments in relation to the Na- 
 tional Government, 396, 396 ; 
 A majority of, required for 
 national legislation, 411; The 
 Senate a defence against the 
 errors and illusions of, 419 ; 
 Direct delegates of, have no 
 treaty-making power, 428 ; 
 Aversion of, to monarchy. 
 
INDEX. 
 
 741 
 
 American People — Continued. 
 447 ; Superior to their OTrn 
 representatives, 621 ; Right 
 of, to alter or abolish govern- 
 ment, 622 ; Recognition of, 
 in Preamble of Constitution, 
 673 ; Will be watchful of 
 National Government, 577 ; 
 Equal privileges under Con- 
 federation, 591 ; Right of, to 
 assemble and petition for 
 redress of grievances shall 
 not be abridged by Congress, 
 622^' ; Right of, to keep and 
 bear arms shall not be in- 
 fringed, 622^ ; Right of, to be 
 secure in persons, houses, 
 papers, and effects against 
 unreasonable searches and 
 seizures shall not be violated, 
 tizc; The rights in the Con- 
 stitution shall not be held to 
 deny or disparage others re- 
 tained by, 625*: ; Powers not 
 delegated to the United 
 States, nor prohibited to the 
 States, are reserved to the 
 States or to the, 625£-; Rights 
 of: Proposed amendment con- 
 cerning, 633, 639, 646 ; Free- 
 dom of assembly of: Proposed 
 amendment concerning, 636, 
 641, 647 ; Right of, to reas- 
 sume government : Proposed 
 amendment concerning, 639 ; 
 Governmental acts to run in 
 name of : Proposed amend- 
 ment concerning, 644 ; Right 
 of, to establish fundamental 
 laws, 687 ; Formed the Con- 
 stitution, 700 ; National Gov- 
 ernment acts directly upon, 
 701 ; Synonymous with citi- 
 zens, 709 ; Sovereignty Qf,709. 
 
 American System : Idea of one, 
 70-72. 
 
 Amphictyonic Confederacy : Ac- 
 count of, 108, 237; Analogy 
 of, to American Confedera- 
 tion, 109. 
 
 Annapolis Convention ; Recom- 
 mendations of, 263, 257. 
 
 Anne, Queen, 23. 
 
 Annulment : see Supreme Court ; 
 Veto. 
 
 Anti-Federalists {see also Strict 
 Constructionists) : In New 
 Yorlj, XX, xxi; Triumph of, in 
 New York election, xxv ; A 
 land-holding party, xxvi ; 
 Driven from polls in New 
 York City, xxvi ; Forced to 
 ratify Constitution in New 
 York, xxvi ; One motive of, 
 38» ; Error in the nature of 
 attacks of, 148 ; The princi- 
 ples of, destructive of all 
 government, 163 ; Objection 
 of, to Federal taxation, 196 ; 
 Want of fairness in publica- 
 tions of, 228, 447, 582 ; Lack 
 of accord in objections of, 
 to Constitution, 240, 241 ; Be- 
 tray themselves in objections 
 to standing army, 265 ; Do 
 not consider people in rela- 
 tion to Constitution, 310. 
 
 Appeals to the People : Dangers 
 and inconveniences attend- 
 ing, 335-337 ; Objections to 
 periodical, 339-342. 
 
 Appellate Jurisdiction : Meaning 
 of, 547 ; No impediment to 
 appeal from State courts to 
 inferior National courts, 664 ; 
 In what cases the Supreme 
 Court shall have, 6i7f. 
 
 Appointment {see also Civil 
 Service ;. Office-holders) : Con- 
 gressional assumption of, 
 xvi, 329« ; Presidential 
 power of, 463, 605; New York 
 system of, 464, 472, 518; Fre- 
 quent Presidential changes 
 will produce mutability in, 
 482 ; Constitutional clause re- 
 garding, commended, 506 ; 
 Possible systems of, 506; Im- 
 portance of responsibility in, 
 506 ; Possible favoritism in, 
 506, 608-9 ; Danger of bar- 
 gains over, 507 ; President 
 should be solely concerned 
 in, 507; As a means of secur- 
 ing legislation, 507, 509 ; No 
 advantage for Senate to neg- 
 ative, 508; Congressmen ex- 
 cluded from, 510 ; Early non- 
 partisan system of, 5ii«; 
 Growth of partisan, 5I2»; 
 
742 
 
 INDEX. 
 
 Appointment — Continued. 
 Share of Senate in, prevents 
 partisan removal, 611; Presi- 
 dential power of, as an in- 
 fluence on Senate, 512 ; A 
 council of, an intriguing con- 
 clave, 514 ; Proposition to 
 unite House of Representa- 
 tives with Senate in, 516 ; 
 Of officers, and authority to 
 train the militia reserved to 
 the States respectively, 6o6<: ; 
 Congress may vest, in Presi- 
 dent, 614c ; By courts of law 
 and heads of departments, 
 614c ; to be made by the 
 President, 728. 
 
 Apportionment (see also Represen- 
 tatives, House of) : Of repre- 
 sentation and direct taxation 
 among the several States, 
 Sgg^ ; Of Representatives 
 among the several States, 
 629^- ; Of representatives, 721. 
 
 Appropriations : Of money for 
 army limited, 6o6<r; No money 
 shall be drawn from the 
 Treasury but in consequence 
 of, (x&c ; Bills may be ap- 
 proved in part and disap- 
 proved in part, 723; For 
 Array not to exceed two 
 years, 724; By law. 725. 
 
 Aristooracy {see also Well-iorn) : 
 Definition of, xliii, xliv. 
 
 Armies, Standing: One advantage 
 of, in Europe, 41 ; Advan- 
 tages of, 41; Fatal effects of, 
 on liberty, 41-44; Modern de- 
 velopment of, 42»; Motive for 
 establishing, 42«,43k; Superi- 
 ority secured by, 43 ; Of U. S. , 
 Mexico, and Brazil, 43«; Not 
 provided against in Constitu- 
 tion, 43; Will result from dis- 
 solution of Confederacy, 43, 
 46 ; Why they did not spring 
 up in the Grecian republics, 
 44 ; Necessitated by modern 
 commercialism, 44; Attempt 
 to coerce States with, 
 amounts to war between 
 States, 97; Resources of Union 
 not equal to great, 99 ; No 
 provision against, in Consti- 
 
 Armies, Standing — Continued. 
 tution and in most State gov- 
 ernments, 160 ; Declamation 
 concerning, 160, 161; Fully 
 controlled by Congress, 161 ; 
 Raising of, does not rest with 
 Executive, 161 ; Appropria- 
 tions for, limited to two years, 
 151; Few interdictions of, 
 in State constitutions, 161 ; 
 Under Articles of Confedera- 
 tion, 162, 158 ; Necessity of, 
 for western garrisons, 164 ; 
 Impropriety of any constitu- 
 tional interdiction of, 164; 
 Why it is better for an army 
 to be in the hands of the Fed- 
 eral government than in those 
 of the State governments, 
 156-158; Dangers of, if con- 
 trolled by States, 157; Indefi- 
 niteness of objections to, 168; 
 Necessitated by Indians, 169; 
 Effect of a limitation on, in 
 time of peace, 169 ; Origin of 
 prejudice against, 168 ; His- 
 tory of, in Great Britain, 164; 
 Provision concerning, in the 
 English Bill of Rights framed 
 at the Revolution in 1688, 164; 
 State limitations on, with con^ 
 sent of the legislature, 166 ; 
 New York constitution silent 
 regarding, 165 ; Limited by 
 Constitution totwo years, 166; 
 Undue augmentation of, its 
 own warning of danger, 167; 
 Far less necessary in a united 
 than in a disunited state, 
 168 ; Necessity of, for every 
 government, 176 ; Idle fear 
 of, in representative govern- 
 ment, 176 ; A large one not 
 probable in America, 179; In- 
 troduction of, in Europe, 262; 
 Guarded against by Constitu- 
 tion, 263, 264; No check upon, 
 in Great Britain, 264; High- 
 est proportion of a standing 
 army to the population of a 
 country, 317; Possible size 
 of, in U. S., 317; Proposed 
 amendment concerning, 634, 
 6361 637i 640, 643. 
 
 Arms : Right of the people to 
 
INDEX. 
 
 743 
 
 Arms — Continued, 
 
 keepand \>t.s.x ,ii2ic , 725 ; Right 
 to carry : Proposed amend- 
 ment concerning, 634, 636, 
 640, 648, 649. 
 
 Army : Power to raise, under 
 Confederation, 133 ; Unlimit- 
 ed powers of Continental 
 Congress to raise, 146 ; States 
 restricted from keeping, 297; 
 Regulation of, by Confedera- 
 tion, 593; Confederate Con- 
 gress to raise and support, 
 724. 
 
 Army, United States (see Reg- 
 ulars, U. S.\. Relatively small 
 growth of, 42» ; Defects of a 
 bounty system for enlisting, 
 134 ; Unlimited control of, 
 by nation, 145 ; Presidential 
 command over, 496 ; Con- 
 gress shall make rules for the 
 government and regulation 
 of the land and naval forces. 
 tote ; Limit on appropriation 
 for, 6o6ir ; President not to 
 command, 644. 
 
 Army, Volunteer ; More likely to 
 plunder, 42. 
 
 Arsenals : Exclusive authority 
 ,over all, 606c. 
 
 Arthur, Chester A., 330». 
 
 Articles of Confederation : see 
 Confederation, Articles of. 
 
 Arts and Sciences, 605^:, 724. 
 
 Aspasia, 28. 
 
 Assemble : People may, 725. 
 
 Assemblies {see also Representa- 
 tives, House of): Objections to 
 numerous, 368, 369, 388-391; 
 After a number of Represen- 
 tatives sufficient for the pur- 
 poses of safety, of local in- 
 formation, and of diffusive 
 sympathy with the whole 
 society is secured, any addi- 
 tion to them is injurious, 388- 
 391. 
 
 Athens, 30, 31, 5o»; Ruin of, by 
 personal influence, 28 ; In- 
 fluence of, in Greece, 110; Ri- 
 valry of, with Sparta, 110 ; 
 Lack of a safeguard against 
 passions in, 419; Government 
 of. 421. 
 
 Atlantic Coast; Vulnerability of, 
 266. 
 
 Attainder: Of treason shall not 
 work corruption of blood or 
 forfeiture, 6i7f, 730. 
 
 Attainder, Bill of: Restriction 
 upon States regarding, 294, 
 296, 670 ; Shall not be passed, 
 6o7f, 6o8<:; Prohibited to Con- 
 gress, 725 ; prohibited to the 
 States, 726. 
 
 Anstria, 31. 
 
 Bagehot : Cited, 462/:, 479, 496»; 
 On English Constitution, 
 172K ; As to fixed term of of- 
 fice, 230K; On separation of 
 governmental powers, 32OK. 
 
 Bail, Excessive : Shall not be re- 
 quired, 6241:, 726 ; Proposed 
 amendment concerning, 636, 
 640, 647. 
 
 Ballot (see also Elections): For 
 President and Vice - Pres- 
 ident, 626c. 
 
 Bank, National : Jefferson's opin- 
 ion on, 651; Hamilton's opin- 
 ion on, 655 ; Nature of, 669 ; 
 Necessity of, to government, 
 669-671; Need of, in national 
 finances, 677-8 ; Unconstitu- 
 tionality of law concerning, 
 680, 685. 
 
 Bankruptcy : National power to 
 regulate, 279, 662 ; Congress 
 shall have power to pass uni- 
 form laws on the subject of, 
 6o5f I Proposed amendment 
 concerning, 644; Laws of, to 
 be uniform, 724. 
 
 Barons : Struggle of, with mon- 
 archy, 107. 
 
 Bavaria : Forced to join German 
 Empire, 99K. 
 
 Belgic Confederacy : Outline of, 
 119; Defect of, 121. 
 
 "Best Men": More likely to 
 serve national than local gov- 
 ernments, 13, 20. 
 
 Bill of Attainder : see Attainder, 
 Bill of. 
 
 Bill of Bights (see also Private 
 Rights) : Violation of, 55»; In- 
 efiicacy of, in South American 
 governments, 55«; Lack of, in 
 
744 
 
 INDEX. 
 
 Bill of Rights — Continued. 
 
 Great Britain, 55«; Standing- 
 army clause in those of Penn- 
 sylvania and North Carolina, 
 162, 164, 165; Clause in Brit- 
 ish, 164, 165 ; Objection that 
 the Constitution does not con- 
 tain, 570; Several of the State 
 Constitutions lack, 570; New 
 York does not possess, 570, 
 573; Federal Constitution em- 
 bodies, 570, 573; Originally 
 stipulations between kings 
 and subjects, 572; Nature of, 
 672, 675 ; Not essential in 
 limited constitution, 573; Pos- 
 sibly dangerous in Federal 
 Constitution, 573; Insertion 
 of, in Federal Constitution 
 would imply jurisdiction over 
 ungranted powers, 574; The 
 Federal Constitution in itself 
 a, 575 ; Proposed, 633, 635, 
 639, 646. 
 
 Bills {see also Congress, National): 
 For raising re venue shall orig- 
 inate in the House of Repre- 
 sentatives, 601C, 723 ; If not 
 returned in ten days shall be- 
 come laws, boT-c, 723 ; Before 
 becoming laws, shall bepassed 
 by both houses, 602c, 723. 
 
 Bills of Credit (see also Green- 
 backs; Paper Money) : Restric- 
 tion upon States concerning, 
 294, 295 ; No State shall 
 emit, tc&c. 
 
 BismaTck, 92». 
 
 Blackstone : Cited, 572. 
 
 Borrowing Power {see also Debt, 
 II. S.), 603c, 703; Powers of 
 taxation necessary to secure, 
 192 ; Proposed amendment 
 concerning, 643. 
 
 BonntieB : European, on fish, 18; 
 Competition among States 
 produces excessive military, 
 134; Produce procrastination 
 in enlistment, and otherevils, 
 134 ; Possible necessity for 
 commercial, 268 ; Shall not 
 be questioned, 630^-; Protec- 
 tive duties nothing but, 6go ; 
 Cannot be granted from the 
 treasury, 723. 
 
 Bourne, E. 6. : Article on au- 
 thorship of Federalist , xxx. 
 
 Brazil : Standing army of, 43». 
 
 British : see Great Britain. 
 
 Brutus : see Yates, Robert. 
 
 Bryce, James : Cited, xxxix, 
 4S8n, 4g6»; Cited as to "best 
 men," I4«. 
 
 Buchanan, James, 283». 
 
 Buildings : Difficulty of valuing, 
 for purposes of taxation, 130. 
 
 Cabinet : Origin of Presidential, 
 473» ; Shall advise Presi- 
 dent, 496. 
 
 California : Non-circulation of 
 greenbacks in, ioi«. 
 
 Cambray, League of, 31. 
 
 Campaign Funds : Collection of. 
 364». 
 
 Canada (see also Great Britain) : 
 Negotiations of, with Ver- 
 mont, 36; An unfailing source 
 of friction with Great Britain, 
 70; Clause in Articles of Con- 
 federation admitting, 286, 597. 
 
 Canals : More easily obtained 
 by a united country, 86 ; Na- 
 l i o n a 1 encouragement of, 
 28o» ; Amendment concern- 
 ing, voted down, 663. 
 
 Capital, National : Distance of, 
 from frontier States, 84, 86, 
 676 ; Power of exclusive leg- 
 islation over, 281, 6o6f, 664, 
 724 ; Experience of Conti- 
 nental Congress regarding, 
 282»; History of, 282«; Dis- 
 franchisement of citizens in, 
 283K ; Proposed amendment 
 concerning, 638, 643, 649 ; 
 Slavery in, 716, 719. 
 
 Capitation Tax : Evils of, ad- 
 mitted, 226, 227 ; Spectre of, 
 224 ; Unlikelihood that it will 
 be laid, 226 ; Use of, by State 
 governments, 226 ; Shall be 
 laid in proportion to the 
 census, 607^; Proposed 
 amendment concerning, 644 ; 
 Limitation upon, 725. 
 
 Carriage Tax : Unconstitution- 
 ality of, 694. 
 
 Carthage, 30, 31; Senate of, 421, 
 425, 
 
INDEX. 
 
 745 
 
 Cato : see Clinton, George. 
 
 CeiiBUi : Representation and di- 
 rect-tax clause guarantees 
 fairness of, 365 ; Partisan 
 underrating of, 365« ; To be 
 made within three years and 
 every ten years thereafter, 
 600c, 721 ; No capitation or 
 other direct tax shall be laid 
 except in proportion to, tryjc. 
 
 Charlemagne : Empire of, 114. 
 
 Charles II.: Institutes standing 
 army, 164. 
 
 Charles v.: Project of universal 
 monarchy of, 29. 
 
 Cherokee Case : Helplessness of 
 Supreme Court in, 542/1. 
 
 Chesterfield, Earl of : Corrupts 
 Netherland deputies, 139. 
 
 China Trade : Our rivalry with 
 Europe in, 18. 
 
 Citizens (see Faction ; Human 
 Nature ; Man ; Naturaliza- 
 tion; People ; Slaves; Society): 
 Necessity that the General 
 Government shall act directly 
 upon, 103, 104 ; Slight rela- 
 tion of the National Govern- 
 ment to, 106 ; A national 
 government acts directly 
 upon, 250 ; A federal gov- 
 ernment acts upon, in their 
 corporate capacity, 250; Per- 
 plexing clause in Articles 
 of Confederation concerning, 
 278 ; Inter-State privileges 
 of, 278 ; New Constitution 
 provides for uniform rule of 
 naturalization, 279 ; Disfran- 
 chisement of, in District of 
 Columbia, 283?! ; Relative 
 greater importance of local 
 governments to, 306K ; Of 
 each State entitled to the 
 privileges and immunities of 
 citizens of the several States, 
 ()\%c\ All persons born or nat- 
 uralized in the U. S. are, 627<r; 
 States shall make no law 
 which shall abridge the priv- 
 ileges or immunities of, 627^; 
 Of each State to be entitled 
 to the privileges of citizens 
 i:n the several States, 730; Of 
 one State not to sue those 
 
 Citizens — Continued. 
 
 of another in Confederate 
 courts, 730 ; Right of, to 
 carry arms: Proposed amend- 
 ment concerning, 634, 636, 
 648, 649 ; Eligibility of, for 
 federal offices : Proposed 
 amendment concerning, 643 ; 
 Definition of, 709 ; D r e d 
 Scott case and the question 
 of, 709 ; Of a State, not 
 necessarily citizens of U. S., 
 710. 
 
 Civil Service (see also Appoint- 
 ment; Office - holders; Tax 
 Officers) : Economy in, 
 through union, 79 ; Taxation 
 for support of, 187 ; Relative 
 smallness of Federal over 
 State, 307 ; Congressmen in- 
 eligible to, 371 ; Senate a 
 check on undue removals 
 from, 611; Removal from, on 
 impeachment, due. 
 
 Clanship in Scotland, 107. 
 
 Cleveland, Grover, 7i». 
 
 Clinton, George (Cato), 3«, 6«, 
 49« ; Letter of New York 
 delegates to, xx ; Writes let- 
 ters of Cato, xxi ; Falsehood 
 of, 448 ; An opponent of the 
 Constitution, cited, 448. 
 
 Closure : Parliamentary intro- 
 duction of, I42«. 
 
 Coalition ; The word used in a 
 good sense, 348, 384, 385. 
 
 Coinage : Power of National 
 Government over, 277 : Im- 
 portance of securing uniform, 
 277 : States restricted from, 
 295 ; Congress to regulate, 
 6o5(r, 724. 
 
 Colonial Period : Governmental 
 system-of, ix. 
 
 Colonies, European : Danger to, 
 from America, 64. 
 
 Colored Eace (see also Negro ; 
 Slaves), 630^. 
 
 Columbia, District of : see Capi- 
 tal, National. 
 
 Commander - in - chief : see Pres- 
 ident. 
 
 Commerce (see also Embargo ; 
 Navigation) : Extension of 
 American, displeasing to 
 
746 
 
 INDEX. 
 
 Commerce — Continued. 
 
 Europe, 19, 64 ; Examination 
 of the opinion that tendency 
 of, is pacific, 29, 30, 32»; The 
 chief cause of war between 
 France and Great Britain, 
 32; Competitions of, a 
 source of contention between 
 the separate States, 36, 37; 
 American spirit of enterprise 
 in, 37; Influence of, in secur- 
 ing adoption of Constitution, 
 38»' Importance of national 
 control over, 65, 27S; Impor- 
 tance of American markets to 
 European, 65 ; Possibility of 
 indirect, with Great Britain, 
 
 66 ; Policy of prohibitory 
 regulations in regard to, on 
 the part of the United States, 
 65, 66 ; Division will make 
 American, the preyof Europe, 
 
 67 ; The most productive 
 source of national wealth, 72; 
 The best friend of agricul- 
 ture, 73, 401 ; Produces 
 abundant supplies of precious 
 metals, 73 ; Makes payment 
 of taxes easier, 73 ; Chief 
 governmental revenue is de- 
 rived from, 75; American, at 
 the lowest point of declen- 
 sion, 89 ; Want of power to 
 regulate, in Confederation, 
 131; Conflicting State regula- 
 tions of, 133; Importance of 
 navy to, 155 ; New Jersey 
 proposition that the nation 
 shall control, 239; Agreement 
 that the Federation should 
 regulate, 256 ; Example of 
 Switzerland, 276; Example of 
 Germany, 276 ; Example of 
 Netherlands, 276; Regulation 
 of, with Indians, 276 ; Local 
 knowledge not necessary for 
 regulation of, 373 ; Impor- 
 tance of knowledge of, to 
 national representatives, 373; 
 Importance of, in certain 
 States, 400 ; A blow at, an 
 injury to the land-holding 
 classes, 401 ; Power to reg- 
 ulate, with foreign nations, 
 603c, 723 ; Proposed amend- 
 
 Commerce — Continued. 
 
 ment concerning, 689; Reg- 
 ulations of, should be uni- 
 form, 725. 
 
 Commerce, Interstate : A source 
 of contention, 36, 38«, 138; 
 Importance of regulating, 
 276, 400 ; Proposed amend- 
 ment concerning, 651; Rela- 
 tion of banks to, 673. 
 
 Commercial Cities : Forced to for- 
 tify themselves, 267«. 
 
 Commercial Classes (see also Mer- 
 cantile Classes) : Want of in- 
 fluence of, in Revolution, ix; 
 Battle of, with landed inter- 
 est, 400». 
 
 Commercial Companies : Power of 
 Congress to incorporate, 676. 
 
 Commercial Monopoly : Proposed 
 amendment concerning, 632, 
 634, 643, 650, 676. 
 
 Commercial Treaties : Proposed 
 amendment concerning, 637, 
 649. 
 
 Commercial Unity : Impossible 
 without political unity, 70. 
 
 Commissions to be granted by the 
 President, 6141-, 729. 
 
 Committee of States : Failure of, 
 46g« ; Clause in Confedera- 
 tion permitting, 595, 597. 
 
 Common Defence ; see General 
 Clauses. 
 
 Common Law (see also Laws), 
 624c, 726 ; Pretended estab- 
 lishment of, 872. 
 
 Commons, House of : Term of 
 members of, 380; The instru- 
 ment of the king rather than 
 of the people, 376; System of 
 representation in, 381, 382 : 
 Growth of influence of, as 
 compared with House of 
 Lords, 387, 425, 480; Venality 
 of, 510. 
 
 Compact : Obvious rules of, 91, 
 143 ; Delicate question con- 
 cerning, by adoption of Con- 
 stitution, 292 ; Grounds on 
 which it may be broken, 293; 
 Between two or more States, 
 6111:, 727; Nature of national, 
 679. 700, 701,713; Wrong def- 
 inition of, 702. 
 
INDEX. 
 
 747 
 
 Compensation •. Of Senators and 
 Representatives to be ascer- 
 tained by law, 6oi<r; Of the 
 President not to be changed 
 during term of office, 613^; Of 
 the judges of the Federal 
 courts not to be diminished 
 during continuance in office, 
 614^; Private property not to 
 be talcen for public use with- 
 out, 6?3f ; Extra, to con- 
 tractors or officers not to be 
 granted, 725. 
 
 Confederacies (see also Achcean 
 League; Lacedamon ; Lycian 
 Confederacy) : Difference be- 
 tween leagues and, 91-93; 
 Obedience to, from a sense of 
 common interests, 93 ; Nat- 
 ural centrifugal tendencies 
 in, 94; Experience as to coer- 
 cive powers of ancient, 96 ; 
 Attempts to use military 
 coercion in, the signal for 
 war, 100; Tendency of, rath- 
 er to anarchy among the 
 members than to tyranny in 
 the head, 103-123; Structure 
 and history of Greek, 108- 
 114 ; Peculiar advantage of, 
 as to insurrection, 290 ; Ten- 
 dency to despoil general gov- 
 ernment in ancient and mod- 
 ern, 305; No State shall enter 
 into any treaty, alliance, or, 
 6o8ir. 
 
 Confederacies, Separate Ameri- 
 can : State officials favor, 2; 
 Whispers of projects for, 6; 
 Belief in, by opposers of 
 Constitution, 6«, 8; Sectional 
 controversy in relation to, 6« ; 
 The interest of the people ^s 
 affected by, 8; Treaty difficul- 
 ties arising from, 14; Results 
 of, 21 ; Inevitable foreign 
 alliances of, 22, 26 ; Inex- 
 pediency of dividing the 
 Union into three or four, 23- 
 28 ; Mutual distrust an in- 
 evitable consequence of, 24 ; 
 Impossibility of their remain- 
 ing equal, 24 ; Formidable 
 only to each other, 25; Will 
 be distinct nations, 86; Neigh- 
 
 Confederacies — Continued. 
 
 borhood of, will constitute 
 antagonism, 26; Commercial 
 jealousy between, 36; Greater 
 expense of, 79; Geographical 
 divisions of, 79, 80; Neces- 
 sity of each for a government 
 as energetic as the proposed 
 Constitution, 79, 80; Proba- 
 ble number of, in the event of 
 disunion, 79-81 ; Similarity 
 of, to feudal system, 106; Ar- 
 gument for, implied by Anti- 
 Federalist contention, 148 ; 
 Just as exposed as States to 
 insurrection, 176; Will make 
 the United States but a copy 
 of Europe, 263; Will facili- 
 tate oppressive combinations 
 of majorities, 347 ; Project 
 for, a never-failing bait to 
 State official, 396. 
 
 Confederacy, Northern : New 
 England project for, 6«. 
 
 Confederacy, Southern {see also 
 Secession) : Slave States proj- 
 ect for, 6«; Seek foreign al- 
 liances, 26k; Constitution of, 
 as regards a tariff, 38», 723; 
 Inherently weaker than 
 Northern, 80 ; Constitution 
 of, 720. 
 
 Confederate Bepublic : see Repub- 
 lics. 
 
 Confederation of U. S. 1781: Im- 
 potency of, x ; Modelled on 
 Batavian and Helvetic Con- 
 stitutions, X ; Only a legis- 
 lative dependent, x; Alleged 
 characteristic distinction be- 
 tween consolidation and, 52 ; 
 Dissolution of, jeopardizes 
 important rights, 68 ; Insuf- 
 ficiency of, 88, 141; Degrad- 
 ing experience under, 89, 95; 
 Imbecility of, 89; Great and 
 radical vice of, legislation for 
 communities instead of per- 
 sons, 90, 91 ; In effect a mere 
 league or alliance between 
 nations, 91; Sovereign powers 
 of, made ineffective by not 
 extending to individual citi- 
 zens, 91; Sovereign powers 
 of, in practice mere recom- 
 
748 
 
 INDEX. 
 
 Confederation — Continued. 
 
 mendations, 91 ; Gradual de- 
 cay of, 98, 98 ; Requisitions 
 under, can only be enforced 
 by great army, 99 ; Compari- 
 son of, with the feudal baro- 
 nies, 107 ; Comparison of, 
 with Swiss League, 118; No 
 sanction to laws of, 124; Has 
 no power to exact obedience, 
 124; The system of quotas a 
 fundamental error of, 126 ; 
 History of quota system un- 
 der, I26«; Revenues of, I27«; 
 Powerless to regulate com- 
 merce, 131; Limited military 
 powers of, 133; Inequality of 
 suffrage under, 135; Minority 
 control in, 135; Ease of for- 
 eign influence under, 137 ; 
 Evils due to the minority 
 under, 137 ; Want of a ju- 
 diciary power, a crowning 
 defect of, 140; Perilous ten- 
 dency of a single legislative 
 house, 141; A system radi- 
 cally vicious, 141; Want of 
 popular consent to, another 
 defect in, 143 ; Assertion 
 that ratifications of, can be 
 repealed, 143, 292; Acknowl- 
 edges the necessity of 
 strength in the federal pow- 
 er, 145; Recognizes necessity 
 of national control of na- 
 tional forces, 146; Experi- 
 ence of divided authority 
 under, 147 ; Dual govern- 
 ments under, mutually check 
 each other, 177; Full powers 
 of taxation intended by fram- 
 ers of, 188;' Founded on fal- 
 lacious principles, 229; Im- 
 practicable character of cer- 
 tain provisions under, 242- 
 246; Necessary usurpations 
 of Congress under, 242-245 ; 
 Nature of, 248 ; All debts of, 
 valid against the U. S., 290, 
 620(r; Legislative instability 
 under, 297; System of voting 
 under, 504 ; Judiciary sys- 
 tem under, 833, 588; Civil 
 service under, 578; Vote of 
 nine States necessary for ex- 
 
 Confederation — Continued. 
 
 ercise of most powers of, 596 ; 
 Relation of States to, 695; A 
 mere league between sover- 
 eign States, 712. 
 
 Confederation, Articles of (text 
 in full), 591-598; Imperfect 
 because made in times of 
 stress, 9; Instituted to pre- 
 serve union, 9; Fundamental 
 errors in, prevent mere 
 amendment, 90; General as- 
 sent as to material defects of, 
 90; Want of energy in, 90; 
 No guaranty to State gov- 
 ernments, 124; Received no 
 sanction from people, 143 ; 
 Delicate question in super- 
 seding, 143, 292; Articles as 
 to military establishments, 
 162; Clause relating to na- 
 tional forces, 158; Suggested 
 objections and amendments 
 to, 238; Refusal of Maryland 
 to agree to, 239; Far more 
 defective than proposed Con- 
 stitution, 242; Was the Con- 
 vention limited to an amend- 
 ment of, 254 ; System of 
 popular appointment under, 
 255; Constitution merely an 
 expansion of principles in, 
 266; Comparison of Consti- 
 tution with powers of, 270, 
 271; Attempts of , to reconcile 
 partial sovereignty in union 
 with complete State sover- 
 eignty, 277; Defective clause 
 in, concerning citizenship and 
 naturalization, 278 ; Lack of 
 provision in, concerning new 
 States, 285; Has only legis- 
 lative sanction, 292; Infrac- 
 tions of, furnish grounds for 
 dissolution, 293; Superseded 
 because of State delinquency, 
 310; Method of amending, 597. 
 
 Confederation, Congress of the : 
 see Congress of the Confedera- 
 tion. 
 
 Congress, Confederate : Orgapi- 
 zation and Powers of, 720-732. 
 
 Congress, Continental : Power 
 secured by, through paper 
 money, 311. 
 
INDEX. 
 
 749 
 
 Congress of 1774, 234«; Oppo- 
 sition to measures of, 10. 
 
 Congress of the Confederation : In- 
 justice to, xi; In relation to 
 public lands, 35; Can scarce- 
 ly keep up the forms of ad- 
 ministration, 95; Impotent po- 
 sition of, due to system of 
 suffrage, 136 ; Organization 
 of, defective, 141; Intrinsic 
 feebleness of, 142 ; Proposi- 
 tion to increase powers of, 
 142; Defects of, due to its be- 
 ing a single legislative body, 
 142; Unlimiteddiscretionof,in 
 control of national forces, 146; 
 Nugatory powers of, 243; De- 
 pendence of, on States, 243; 
 Resolution of, concerning 
 Federal Convention, 253; Un- 
 constitutional actions of, 272; 
 Assumption of, as regards 
 new States, 285 ; Waning of 
 enthusiasm for, 812 ; State 
 partisanship in, 314; Constant 
 reelection of members of, 359; 
 Clauses in Confederation es- 
 tablishing, 592; Members of, 
 excluded from other public 
 office, 592; Powers of, under 
 Confederation, 594. 
 
 Congress, National \see also De- 
 partments of Power ; Govern- 
 ment, U. S.; Laws; Legislative 
 Department ; Representation ; 
 Representatives, House of; 
 Senate): Constitution of, xii; 
 Limitations upon, xiii; Effect 
 of dual body in, xv ; En- 
 croachments of, on power of 
 appointment, xv; Change in 
 the nature of members of.iSK; 
 Impossibility that every man 
 in, will be a traitor, 167 ; 
 Power of, under the Federal 
 Constitution,overcapital,281; 
 Power of, concerning terri- 
 tory belonging to the United 
 States, 286; Possible miscon- 
 struction of the Constitution 
 by, 300; Persistent attempts 
 of, to encroach 328«; As re- 
 gards election of President, 
 3z8» ; As regards appoint- 
 ments, 329» ; As regards 
 Presidential veto, 329K ; As 
 
 Congress — Continued. 
 
 regards treaty power, 330« ; 
 Objection to smallness of 
 representation in, 368 ; In- 
 evitable growth of, 369; Lib- 
 erties of America absolutely 
 safe in, 369; Members of, in- 
 eligible to civil offices, 371 ; 
 A representative of both citi- 
 zens and States, 384 ; Presi- 
 dential power of adjourning, 
 461 ; New government will 
 imply shorter sessions of, 
 579 ; Publication of Journal 
 of, required, 596, 637, 644,648; 
 Constitutional provision con- 
 cerning, 599-63K:; Number of 
 Representatives in: Proposed 
 amendment concerning, 632, 
 634, 637, 642, 648; Limitation 
 on : Proposed amendment 
 concerning, 633, 634, 639, 644, 
 648 ; Compensation of : Pro- 
 posed amendment concern- 
 ing, 639, 644, 650; Executive 
 Departments admitted in 
 Confederate Constitution, 
 723; Implied Constitutional 
 powers of, 736. 
 
 Connecticut, I26n, I27», 255, 
 30i«; Dispute of, over Wyo- 
 ming; 33, 85, 160, 175; Com- 
 mercial tribute of, to New 
 York, 37; Reason for Federal- 
 ism of, 38«; Retaliation of, 
 towards Rhode Island, 40; 
 Maintains royal charter as 
 constitution, 324K; Provision 
 in Constitution of, concerning 
 elections, 354; One branch of 
 legislature of, so constituted 
 that each member of it is elect- 
 ed by the whole State, 388; 
 Jury trial in, 562, 569 ; Most 
 democratic State in Union, 
 569. 
 
 Conscription : Proposed amend- 
 ment concerning, 688. 
 
 Consolidation [see also Compact ; 
 Confederacies ; Constitution ; 
 Government, U. S. ; Leagues ; 
 Slate Sovereignty): The plan 
 of the Union aims only at 
 partial, 52, 198, 248 ; Desire 
 of the States to guard against 
 improper, 411. 
 
7SO 
 
 INDEX. 
 
 Constitution: Nature of a writ- 
 ten, vii; Improvement in 
 American, over ancient, 64 ; 
 Necessity always leads to dis- 
 regard of, 161, 166; Hitherto, 
 usually the work of one man, 
 237; Origin of ancient, 237; 
 Only a republican, suited 
 to America, 246; Cannot be 
 framed for existing exigencies 
 merely, 208, 211 ; Revision 
 of an established, a critical 
 matter, 338 ; Definition of a 
 limited, 520 ; Can only be 
 maintained by judicial de- 
 partment, 521; A fundamen- 
 tal law, 621, 687; Must be the 
 standard of legal construc- 
 tion, 540 ; Theory of a lim- 
 ited, 840; Distinction between 
 statute law and, 687 ; Not 
 alterable by legislature, 687; 
 Nature of limited, 687; Can- 
 not be interpreted with the 
 strictness of a private con- 
 tract, 736; Rules of interpre- 
 tation of, 737. 
 
 Constitution, Confederate, 38», 
 720. 
 
 Constitution of Confederation : see 
 Confederation, Articles of. 
 
 Constitution, Federal (see Amend- 
 ments; Anti-Federalists; Bill 
 of Rights; Compact; Construc- 
 tion; Departments of Power; 
 General Clauses; Government, 
 U. S. ; Ratification ; State 
 Sovereignty; Union): Text in 
 full, with amendments, 598- 
 631; Worship of, vii, l^2n, 
 697; Prototypes of, vii ; I5is- 
 regard of, vii; Development 
 of, vii ; Peculiar distinction 
 of,viii; Guaranty to minority 
 in, viii, xiv ; Necessarily 
 based on people and States, 
 xii; A check on popular con- 
 trol, xii; Ratification of, xiii; 
 Development of government 
 under, xiii; Contest over rat- 
 ification of, XX ; Opposition 
 to, in New York, xx; Writings 
 against, xxi; Attitude of peo- 
 ple towards, xxv ; Forms a 
 representative democracy. 
 
 Constitntion — Continued. 
 
 xliv; Personal and local op- 
 position to, 2; Opposition of 
 State officials to, 2; Publius 
 not unfriendly to, 6; Adop- 
 tion of, the alternative of dis- 
 memberment of Union, 7 ; 
 Only recommended by Con- 
 vention, 10, 866, 267; Influ- 
 ence of commerce in securing 
 adoption of, 38»; Does not 
 imply abolition of State gov- 
 ernments, 63 ; Restraint on 
 States imposed by , 55« ; Guar- 
 anty of, to the States of a. 
 republican form of govern- 
 ment, 124, 125, 286-290; Ne- 
 cessity of one as energetic to 
 secure union, 144; Necessity 
 for great caution concerning, 
 148; No powers too great 
 when lodged in properly con- 
 structed, 148 ; The internal 
 structure of, the only point 
 for true criticism, 148; Wis- 
 dom of the provision in, con- 
 cerning the military force, 
 150-155, 166-168, 264; Rea- 
 son why the execution of, 
 will probably be popular, 170- 
 172; Extends national author- 
 ity to citizens, 173; Laws 
 under, as to the enumer- 
 ated and legitimate objects 
 of its jurisdiction, will be 
 the supreme law of the land, 
 173 ; Absurdity of objec- 
 tions to clauses concerning 
 militia, 180; Incoherence of 
 objections to, 181; No pro- 
 vision in, concerning posse 
 comitatus, 181; Distorted 
 publications against, 184, 186, 
 228; Forms only a partial con- 
 solidation or union, 198; How 
 far sovereign, 198; Cannot 
 be framed merely for exist- 
 ing exigencies, 208, 211; Dif- 
 ficulty of combining energy 
 and liberty in, 229; Defects of, 
 the result of want of antece- 
 dent experience, 238; Diver- 
 sity of objections to, 240, 241; 
 Far less defective than Arti- 
 cles of Confederation, 242; 
 
INDEX. 
 
 751 
 
 Constitution — Continued. 
 
 Conformity of, to republican 
 principles, 245-248; Analogy 
 between the mode of ap- 
 pointments under, and under 
 the State governments, 246, 
 247; Wholly republican in 
 character, 847; A ratification 
 of, by the people acting in 
 corporate capacity, 248; 
 Neither a national nor a fed- 
 eral, but a combination of 
 both, 248-262 ; Adoption of, 
 not a national, but a federal 
 act, 249 ; The proposed, na- 
 tional in its action on indi- 
 viduals, 250 ; Federal as an 
 arbiter between the States, 
 250 ; National in operation, 
 but federal in extent, 261 ; 
 Right of Convention to frame 
 such, 252,259; Merely an ex- 
 pansion of principles con- 
 tained in Confederation, 256; 
 Innovation of, in its reference 
 to the people rather than to 
 the States, 266; General view 
 of the powers vested by, in 
 the Union, 260-303 ; Power 
 of, todeclarewar,261; Guards 
 against standing army, 263, 
 264; Power of, to provide a 
 navy, 265; No part of, can be 
 construed without its context, 
 269 ; Comparison of powers 
 of, with those of Articles of 
 Confederation, 270, 271, 273; 
 277; Power of, to make treat- 
 ies, etc., 271 ; Power of, to 
 define and punish offences 
 on the high seas, 272 ; Pro- 
 hibition by, of the importa- 
 tion of slaves after i8o8, 273; 
 Power of, to regulate com- 
 merce, 276; Powers of, to coin 
 money, to punish counter- 
 feiters, and to regulate 
 weights and measures, 277; 
 Power of, to establish a uni- 
 form mode of naturalization, 
 277-279 ; Power of, to estab- 
 lish uniform laws of bank- 
 ruptcy, 279 ; Power of, to 
 establish post-roads, 279 ; 
 Power of, concerning public 
 
 Constitution — Continued. 
 
 acts, records, etc., 279; Power 
 of, to grant copyrights, 280, 
 281; Power of, to exercise ex- 
 clusive legislation over a dis- 
 trict not exceeding ten miles 
 square, if ceded to the U. S., 
 281 ; Power of, concerning 
 treason, 283; Power of, to ad- 
 mit new States, 284 ; Power 
 of, concerning territory, etc., 
 belonging to the U. S., 286 ; 
 Clause of, admitting new 
 States carefully guarded, 286 ; 
 Obligation concerning public 
 debts incurred prior to the 
 adoption of, 290, tioc ; Pro- 
 vision of, concerning amend- 
 ments, 291 ; Clause of, con- 
 cerning ratification of, 292 ; 
 Question concerning super- 
 seding of Articles of Confed- 
 eration by, 292 ; Disabilities 
 of the States created by, 294- 
 298; Power given by to Con- 
 gress, to make all laws nec- 
 essary and proper for execut- 
 ing its enumerated powers, 
 298-301; Necessarily a docu- 
 ment of construction or im- 
 plication, 299 ; Impossibility 
 of a positive enumeration of 
 powers of, 299; Possible mis- 
 construction of, by Congress, 
 300 ; Provision of, that the 
 Constitution, laws, and treat- 
 ies of the United States shall 
 be the supreme law of the 
 land, 301 ; Oath of officers to 
 support, 302, tioc ; Why State 
 officials should take oath to 
 support, 302 ; Does not add 
 new powers so much as in- 
 vigorates old ones, 309 ; Ex- 
 amination of the particular 
 structure of, 319 ; Imperfect 
 separation of departments in, 
 no more pronounced than in 
 State constitutions, 326; Pe- 
 culiar division under, of the 
 power surrendered by the 
 people , 346-348 ; M ode of pro- 
 tecting the minority from 
 usurpations by the majority 
 under, 347; Number of mem- 
 
•752 
 
 INDEX. 
 
 Constitution — Contin ued. 
 
 bers of House of Representa- 
 tives under, a fruitful theme 
 of declamation, 366 ; Peculi- 
 arity as regards representa- 
 tion under, 384 ; Contention 
 that the Election Law should 
 be part of, 892; Laws passed 
 contrary to, are void, 621, 
 686 ; A check on oppressive 
 laws of States, 634; Silence 
 of, concerning trial by jury, 
 666 ; Does not abolish trial 
 by jury, 568, 669; Answer to 
 the objection that no Bill of 
 Rights is contained in, 669- 
 576; Pretended establishment 
 of the Common and Statute 
 Law by, 572; The Preamble 
 of, a recognition of popular 
 rights, 673 ; Recognition of 
 people in Preamble of, 673 ; 
 Embodies Bill of Rights, 578, 
 675; Omission from, of a pro- 
 vision concerning the liberty 
 of the press defended, 574 ; 
 Answer to an objection to, 
 founded on the remoteness of 
 the seat of government from 
 many of the States, 676, 677; 
 Answer to the objection that 
 a provision concerning debts 
 due to the United States is 
 wanting in, 877 ; Answer to 
 the objection as to expense 
 attending adoption of, 578 ; 
 The Federalist has vindicated, 
 583 ; Acknowledged imper- 
 fections of, 884 ; Proposed 
 amendment of, 584 ; A com- 
 promise of many dissimilar 
 interests and inclinations, 
 684, 686 ; Can be amended 
 subsequent to adoption, 686 ; 
 Method of amending, 687, 
 620ir ; The establishment of, 
 by voluntary consent, an 
 absolute phenomenon, 588 ; 
 Rejection of, hazards anarchy 
 and civil war, 588; Ratifica- 
 tion of, by the States, sgg ; 
 President shall take an oath 
 to preserve, biy, The judi- 
 cial power extends to all 
 cases arising under, 6i5f ; The 
 
 Constitution — Continued. 
 
 supreme law of the land, 620c; 
 The judges in every State 
 shall be bound by, 620ir ; The 
 ratification of nine States 
 shall establish, bl\c\ Amend- 
 ments to, 621-63IC ; Ratifica- 
 tion of, 621, 62S-(>2y, 630 ; 
 Powers not delegated to the 
 U. S. by, are reserved, 623£-; 
 Enumerated powers under, 
 652 ; Powers under, the in- 
 herent difficulty, 66i ; Nature 
 of, 679, 694 ; Construction of, 
 makes an unlimited govern- 
 ment, 682; Protective duties 
 not permitted by, 6go; Doc- 
 "trine of nullification reduces 
 it to airy bubble, 697; A gov- 
 ernment, not a league, 700; 
 Formed by the people, not 
 the States, 700; A compact 
 between the people, not the 
 States of the Union, 700; Not 
 a terminable compact, 700 ; 
 Meaning of word "citizen" 
 in, 709 ; A mere compact, 713; 
 Violation of, by Northern 
 Slates, 713, 714; Election of 
 Lincoln destroys guaranties 
 of, 715; Crittenden's proposed 
 amendments to, 716 ; Attempt 
 to make certain proposed 
 parts of, unalterable, 717, 720. 
 
 Constitutionality : Disregard of, 
 vii, 697 ; States must not 
 decide, of National laws, 
 xii, 100-102, 140, 173, 208, 
 690, 694, 705 ; Nature of, 173, 
 174, 251, 269, 540, 661, 682, 
 686, 687, 694, 736, 737 ; A law 
 without, is a usurpation, 206; 
 Judicial power to decide on 
 a law's, 521 ; The pleasure of 
 the Judiciary will not decide, 
 523 ; As regards a national 
 bank, 652-679 ; As regards 
 alien and sedition laws, 679- 
 686 ; Decision as to, 680, 685 ; 
 As regards protective duties, 
 690-708. 
 
 Construction {see also Strict Con- 
 structionists) \ Two rules of, 
 264; Rules of legal, 522, 653, 
 686 ; Possible distinctioil in 
 
INDEX. 
 
 7S3 
 
 Construction — Continued. 
 
 legal, between State and Fed- 
 eral governments, 660. 
 
 Contracts ; Laws in violation of, 
 an aggression on citizens, 39; 
 Certain to be more inequita- 
 ble if States are further di- 
 vided, 40; In their nature re- 
 ciprocal, 291 ; Restrictions 
 upon laws impairing the obli- 
 gation of, 294, 296, 6o8f, 726. 
 
 Convention, Constitutional (see 
 Annapolis ; Federal; Nullifi- 
 cation ; Secession ; and each 
 State) : Jefferson's proposition 
 for procuring a revising, 334 ; 
 Most likely to be demanded 
 by executive or judiciary de- 
 partments, 337; Probable pre- 
 dominance of legislative de- 
 partment in, 337, 838; Project 
 for periodical, 339 ; Demand 
 for a second, 339», 58S ; Plan 
 of one in 1801, 339«; Almost 
 sure to be infected by party 
 spirit, 340 ; An inadequate 
 check on legislative excesses, 
 840 ; Instance of, in Penn- 
 sylvania Council of Censors, 
 340; Proposition to exclude 
 legislative department from, 
 342 ; Two thirds of States may 
 call, b20c; Of nine States shall 
 establish Constitution, 6zir; 
 Constitutional method of sum- 
 moning national, 704 ; For 
 proposing amendments to 
 Confederate Constitution, 731. 
 
 Convention, Hartford, 339". 
 
 Convention, Nominating: Influ- 
 ence of, I4«. 
 
 Convention, Peace, 339«. 
 
 Convention, South Carolina, of 
 
 1832, 339«. 703- 
 
 Copyright: Powers of Congress 
 over, 280, 281; In Great Brit- 
 ain, 281 ; Congress shall have 
 power to provide, to authors 
 for limited time, 605^. 
 
 Corporation : Power of Congress 
 to form, 652, 656, 662-666, 668, 
 674, 676, 677, 736 ; Nature of, 
 658.' 
 
 Council : Discussion of project 
 of Presidential, 471-474; Sys- 
 
 Council — Continued. 
 
 tern of executive, in States, 
 473; Unnecessary expense of, 
 475. 
 
 Counterfeiting : National power 
 to' punish, 277, bosc, 724. 
 
 Courts: see Judiciary; Jury; 
 Supreme Court. 
 
 Credit: Public and private, at 
 an end, 89 ; Necessity of un- 
 restricted, 191. 
 
 Credit, Bills of: see Bills oj 
 Credit. 
 
 Creditor Class vs. Debtor, a, S8. 
 
 Crete: Cosmi of, 422. 
 
 Crimes : How to be tried, tiic, 
 622c, 730 ; Powers of National 
 Government over, 679, 680 ; 
 Persons accused of, may be 
 demanded, 730. 
 
 Criminal Code: Necessary se- 
 verity of, 497. 
 
 Criminal Prosecutions: Clause in 
 Confederation concerning, 
 592 ; Proceedings in, 624c, 
 726 ; Proposed amendment 
 concerning, 634-636, 638, 640, 
 647, 650. 
 
 Crittenden: Proposed amend- 
 ments to Constitution, 716. 
 
 Cumberland Boad, 28o». 
 
 Curtis. G. T.: Cited, xxxix. 
 
 Danger: Constitutions must 
 provide for future possible, 
 208, 211. 
 
 Dawson, Henry B.: Edits Tie 
 Federalist, xl. 
 
 Debt, U. S.: Difficulty of appor- 
 tioning, in case of disunion, 
 38; Dissimilar views among 
 the States concerning, 88; 
 Interest of foreign powers 
 in, 39; Probable inequaliza- 
 tion of, 89; Non-payment 
 of, 89; Of Confederation, 
 210 ; Constitutional clause 
 concerning, 290; Absurdity 
 that Constitution repudiates, 
 291; No provision in Consti- 
 tution concerning, 577; Con- 
 federation legalizes previous 
 public, 597. 
 
 Debts, Public : Necessary pro- 
 visions for, 187, 189 ; Chiefly 
 
754 
 
 INDEX. 
 
 Debts — Continued. 
 
 due to war, 209 ; Of Great 
 Britain, 210 ; Modern, large- 
 ly the result of public im- 
 provements, 2io»; Of indi- 
 vidual States, 210; State 
 debts not affected by Federal 
 Government, 646 ; No State 
 shall make anything but gold 
 and silver coin a tender in 
 payment of, toic ; Against 
 provisional Confederate Gov- 
 ernment, 731. 
 
 Debtor Class vs. Creditor, x, 68. 
 
 Delaware, I26»; Blending of 
 governmental powers in, 
 325; Number of representa- 
 tives in the more numerous 
 branch in legislature of, 367; 
 Jury trial in, 562. 
 
 Democracy (see also Republics'): 
 Definition of, xliii, xliv; A 
 pure one defined, 59; A pure 
 one unable to prevent fac- 
 tion, 69; Distinction from 
 republic, 60, 82 ; Hitherto 
 incompatible with private 
 rights, 60 ; Natural limit of, 
 83; Danger of legislative tyr- 
 anny in, 328. 
 
 Democracy, American: Appar- 
 ent grave of, x; Vindication 
 of, xvii. 
 
 Denny, Governor, 488». 
 
 Departments of Fewer {see also 
 Executive; Judiciary; Legis- 
 lative') : Want of balance 
 among, in Revolutionary gov- 
 ernments, ix; How far did 
 the Constitution create inde- 
 pendent, XV ; How far Con- 
 stitution separates, xlv; De- 
 velopment of distribution of 
 power among, 48; Proper 
 organization of, 319; An ac- 
 cumulation of, in the same 
 hands, a tyranny, 319; Prin- 
 ciples of the British Consti- 
 tution concerning, 320-322 ; 
 Provisions of the State con- 
 stitutions concerning, 323- 
 826; Impossibility of absolute 
 separation of, 327 ; Advan- 
 tages of a partial blending, 
 327 ; Experience as regards 
 
 Departments of Power — Cont'd. 
 mere paper barriers, 328, 33S, 
 338 ; Relative limitation of 
 powers in, 330, 331 ; Jeffer- 
 son's project for preventing 
 mutual encroachments, 334- 
 336 ; The people the only 
 judge between, 335; The par- 
 tition among them to be 
 maintained, not by exterior 
 provisions, but by the interior 
 structure of the government, 
 342 ; Necessity that they 
 shall check each other, 343- 
 345 ; Must be distinct as to 
 appointments, 343 ; Must be 
 mutually independent as to 
 emolument, 344 ; Of the ad- 
 vantage of making them op- 
 posite and rival interests, 
 344, 345; Diversity in choice 
 in, prevents mutual predi- 
 lections, 398; Objection to 
 impeachment because it 
 blends, 440 ; Necessity of 
 mutual independence, 477 ; 
 Proper blending of, in mak- 
 ing treaties, 600 ; Suggested 
 blending of, as regards Su- 
 preme Court, 639, 640 ; Pro- 
 posed amendment concern- 
 ing, 635, 646. 
 
 Descent, Law of, 651, 654, 661. 
 
 Despotism: Usually begins with 
 demagogues, 4. 
 
 Dictator: Resort to, in times of 
 danger, 466. 
 
 Diplomatic Service: Necessity 
 for, 272; Results from exist- 
 ing treaties, 272. 
 
 Direct Taxes (see also Taxation) : 
 Unpopular in the United 
 States, 74; Only partially 
 successful in Great Britain, 
 74; Probable kinds of, 130; 
 Must be proportioned to 
 population, 223; Apportion- 
 ment of Representatives 
 with, 360; In relation to 
 federal number, 361 ; And 
 Representatives, how appor- 
 tioned, 599f, 607^, 721 ; Pro- 
 posed amendment concern- 
 ing, 632-634, 637, 642, 648, 
 688. 
 
INDEX. 
 
 755 
 
 District of Columbia: see Capi- 
 tal, National. 
 
 Draft, Proposed amendment 
 concerning, 688. 
 
 Dred Scott Decision: In relation 
 to minority riglits, xiii; Ex- 
 citement over, xviii; Ab- 
 stract of, 708. 
 
 Duties {see Protection; Tariff; 
 Taxation): Result of State, 
 37; American preferences 
 for, 74; Average in States, 
 77; In France, 77; In Great 
 Britain, 77; Possible increase 
 in United States, 77; A self- 
 levied tax, 129; If high, 
 lessen collection and con- 
 sumption, 130; Proposed lim- 
 itation of Federal Govern- 
 ment to, 189, 191 ; Dangers 
 of restricting the Federal 
 power to laying duties on 
 imports, 213 ; Divided be- 
 tween seller and buyer, 214 ; 
 An additional tax upon im- 
 porting States produces un- 
 equal taxation among States, 
 214; Exorbitant, tend to make 
 community tributary to man- 
 ufacturing classes, 214 ; Fa- 
 vorable to monopoly, 214 ; 
 The most convenient branch 
 of National revenue, 226 ; 
 Reason for not limiting Na- 
 tional Government to, 267 ; 
 Eventual lessening of, 267, 
 705 ; States restricted from 
 levying on imports or ex- 
 ports, 297 ; Cannot be levied 
 by the States, 6ii<r, 726; S. C. 
 Nullification of, 690; May not 
 be laid on imports to foster 
 any branch of industry, 723; 
 To be levied by Congress, 
 and to beuniform, 723; Not to 
 be levied on exportations ex- 
 cept by two-thirds vote, 725 ; 
 On exports and imports shall 
 inure to treasury of General 
 Government, 726. 
 
 Eastern States: see New Eng- 
 land. 
 
 Elections : Frequent, essential 
 to liberty, 360; Maxim that 
 
 Elections — Continued. 
 
 annual, are necessary to pre- 
 vent tyranny, 363; Diversity 
 concerning, in State constitu- 
 tions, 354 ; Discussion of 
 biennial, 356; Trial of dis- 
 puted, 369; Restraint of fre- 
 quent, 379; National regula- 
 tion of, 391; Contention that 
 the clause controlling should 
 be made part of the Constitu- 
 tion, 392 ; Necessity of a 
 National control of, 392 ; 
 Exclusive State power of 
 regulating, makes Union too 
 dependent, 393; Unlikelihood 
 that National regulation will 
 be abused, 393; National con- 
 trol of, will not elect any 
 class, 397; An unjust use of 
 National power will produce 
 revolt in people, 397 ; Ab- 
 surdity that National control 
 of, will elevate the wealthy 
 and well-born, 399; Proposed 
 limitations on National con- 
 trol of, 404 ; Latitude con- 
 cerning, in Statecbnstitutions, 
 404^6; System in New York 
 State, 408; Advantage of uni- 
 form date of, 406; Frequent, 
 do not always produce re- 
 sponsibility, 418; Of Senators 
 and Representatives shall be 
 prescribed by States, 6oic, 
 722 ; Qualifications and re- 
 turns of members of Congress 
 to be determined by each 
 House, 6oii-, 722 ; National : 
 Proposed amendment con- 
 cerning, 632-634,638, 642, 6_|3, 
 650 ; Frequent : Proposed 
 amendment concerning, 635, 
 647 ; National ; Act creating 
 Electoral Commission, 732. 
 
 Electoral College {see also Execu- 
 tive, U. S.; President): Failure 
 of, to act independently, xvi, 
 452»; Useless, and a danger, 
 xvii ; System of choosing, 
 307»; Congressional assump- 
 tion over, 328« ; Merit of 
 system of, 462 ; Loss of in- 
 dependence of, 452» ; Pre- 
 vents tumult and disorder 
 
7S6 
 
 INDEX. 
 
 Electoral College — Continued. 
 during election, 463 ; Free 
 from cabal intrigue and cor- 
 ruption, 453; Foreign powers 
 cannot influence, 463; Office- 
 holders barred from, 454 ; 
 Method of choosing, 454; Will 
 only choose man of merit, 466 ; 
 How chosen, and their du- 
 ties, 6i3<r, 727 ; No Senator 
 shall serve as elector, 727. 
 
 Electoral Commiesion : Act creat- 
 ing, 732. 
 
 Electors : Of Congress, based 
 on State laws, 349; Character 
 ,of, 378 ; Qualifications of, in 
 Great Britain, 382. 
 
 Embargo: Resistance to, in New 
 England, ioi» ; Proposed 
 amendment concerning, 688 ; 
 Unconstitutionality of, 694. 
 
 England: see Great Britain. 
 
 Equity : Why Federal judiciary 
 should possess powers of, 
 536 ; Determined without 
 jury, 558; Juries not valuable 
 in, 664 ; Distinction of, from 
 legal jurisdiction peculiarly 
 English, 865 ; State systems 
 concerning, 566. 
 
 Equity Courts: Definition of, 536; 
 In States, 566. 
 
 Europe : Rivalry in navigation, 
 
 18 ; Trade advantages of U. 
 S. with European colonies, 
 
 19 ; Jealousy of America by, 
 19 ; Wars of, 31, 42 ; Wars 
 of, unlike probable American 
 wars, 41 ; Modern develop- 
 ment of armies of, 42»; Com- 
 mercial jealousy towards 
 United States, 64 ; United 
 States the arbiter of, in 
 America, 66 ; Exclusion of, 
 from America, 7o»; American 
 colonies of, a cause of dis- 
 sension with United States, 
 70», 7i«, 153, 155; Undue ex- 
 tension of influence of, 71 ; 
 Plumes herself as mistress 
 of the world, 71 ; Assertion 
 of physical superiority of man 
 in, 71 ; More liable to wars. 
 Tin; Entire absence of popu- 
 lar governments in, 83; Rage 
 
 Europe — Continued. 
 
 for leagues in eighteenth 
 century, 91 ; Fear to allow 
 people arms in, 317 ; A na- 
 tional government for United 
 States an object of jealousy 
 to, 398. 
 
 Excises (see also Taxation) : 
 Unpopularity of, 74; Reason 
 for unpopularity of , 74K, 75»; 
 Distinctly unpopular in Amer- 
 ica, 78 ; Nullification of, in 
 Southern States, ioi» ; Re- 
 sistance to, in 1791, ioi»; A 
 self-levied tax, 129; Power to 
 lay, 6021:; Shall be uniform, 
 6o2c; Proposed amendment 
 concerning, 637, 642, 648; Un- 
 constitutionality of, 694. 
 
 Executive (see Departments of 
 Power"): Power of, increased 
 by war, 43; Powers of Dutch, 
 120; Powers of British, 321; 
 American dread of, 328; 
 Slight relative popularity of, 
 337, 345; Advantage of a sin- 
 gle, 466, 467 ; Energy an es- 
 sential feature, 466 ; Unity 
 conducive to energy in, 467; 
 Evils of plural, 468, 471; In 
 State governments, 468; Ex- 
 perience of plural, under Con- 
 federation, 469«; Evil of dis- 
 sension in this department, 
 470; Result of council in New 
 York, 472; System of secur- 
 ing responsibility of, in Great 
 Britain, 473; Additional ex- 
 pense of plural, 478; Influ- 
 ence of term of office on, 
 478, 476; Shortness of term 
 prevents independence of, 
 478. 
 
 Executive, U. S. (see also Presi- 
 dent) : Attack on Judiciary, 
 XV ; Attacked by Congress, 
 XV ; Derived from a very 
 compound source, 260; Pos- 
 sesses both Federal and Na- 
 tional features, 280 ; Jeffer- 
 son's increase of influence of, 
 344«; Constitutional acts of, 
 as valid as law, 430; A check 
 on senatorial corruption con- 
 cerning treaties, 446; General 
 
INDEX. 
 
 757 
 
 Szectttiye — Continued. 
 
 survey of, 447-617; Constitu- 
 tion of, 447; Difficulty of ar- 
 ranging, 447; Misrepresenta- 
 tion of Anti-Federalists con- 
 cerning, 447; Assertion that 
 he is a monarch, 447 ; Re- 
 eligibility of, 457, 481 ; Proj- 
 ect of a council for, 471 ; 
 Plurality of, produces irre- 
 sponsibility, 471 ; A council 
 will destroy responsibility of, 
 473; Peculiar duties of, 481; 
 Misfortune of instability in, 
 481; Veto power a shield to, 
 490; Will hesitate to use veto 
 power, 492; Popularity of 
 vetopower in, 493«; Relation 
 of, to treaties, 500, 501; 
 Treaty-making power should 
 not be trusted solely to an 
 elective, 501; Power vested 
 in a President, t\7,c, 727. 
 
 Exports (see also Taxation): No 
 tax on, 607c, 6iic; May be 
 taxed by two-thirds vote, 725. 
 
 Ex Post Facto Laws : Restric- 
 tions upon, 294, 296, 570 ; 
 Not to be passed, 607^,725; 
 Prohibited to States, 6o8ir, 
 726 ; Proposed amendment 
 concerning, 641. 
 
 Faction: Danger of, in all pop- 
 ular governments, 54; Defi- 
 nition of, 56; Cures of, 56; 
 Latent causes of, 57; The 
 various and unequal distri- 
 bution of property the most 
 common and durable source 
 of, 57 ; Unchecked in pure 
 democracy, 59; Causes of, 
 cannot be removed, 59; As 
 a minority, unable to use 
 constitutional forms, 59; Lo- 
 cal nature of, 62; Unlikely 
 to extend beyond individual 
 States, 63; Oppression by, 
 produces anarchy, 347; Pos- 
 sibility of, in America, 420. 
 
 Farmers (see also Agriculture ; 
 Landed Interests): Difficulty in 
 paying taxes, 74, 76; A land 
 tax an oppression on, 78. 
 
 Federal Convention: Assembling 
 
 Federal Convention — Continued. 
 of, xi; Mental attitude of, xi; 
 Anti-democracy in, xi; Pro- 
 mulgates Constitution, xix; 
 Alleged to have exceeded its 
 powers, XX ; Origin of, 9; 
 High character of members, 
 10 ; Confidence of people in, 
 10 ; The difficulties expe- 
 rienced by, in the formation 
 of a proper plan, 227-245 ; 
 Survey of the work of, 228; 
 Difficulties surmounted by 
 236 ; Exemption of, from 
 party animosities, 236; Un- 
 usual unanimity in, 236; Was 
 it authorized to iframe the 
 proposed Constitution ?, 252, 
 253 ; Merely recommends 
 Constitution, 256, 257 ; For- 
 tunate sacrifice of forms 
 to substance by, 258; The 
 appointment of, a usurpation 
 of power by the States, 259; 
 First urged by New York, 859; 
 Whether or not authorized, 
 constitutes no reason for re- 
 jecting Constitution, 269; 
 Reasons against a second, 
 586; History of, 598. 
 
 Federal District : see Capital, 
 National. 
 
 Federal Farmer: An opponent of 
 the Constitution, 451. 
 
 Federal Government: see Govern- 
 ment, U. S. 
 
 Federalist, The : Great task in- 
 volved in, xxiii; Publication 
 of first number of, xxiii; 
 Marked excellence of, xxiv; 
 Not especially potent in elec- 
 tions of 1788, xxiv; Defects 
 in, due to circumstances of 
 production, xxvii; Jefferson's 
 opinion concerning, xxvii, 
 xxix«; Hamilton's apology 
 for, xxviii; Contemporary 
 and recent opinion of, xxvii- 
 xxix; Controversy concern- 
 ing authorship of, xxix- 
 xxxix; First edition of, xxx; 
 Outline of, xxxiiiw, xliii ; 
 Hamilton the master mind 
 in, xxxix; Bibliography of 
 editions, xxxix; Hamilton's 
 
758 
 
 INDEX. 
 
 Federalist — Continued. 
 
 syllabus of, xliii; Hamilton's 
 Table of Contents of, Ixxiii; 
 Hamilton's Preface to, Ixxvii; 
 Madison's account of, xlix; 
 Outline of, 6; Notice con- 
 cerning publication of, 40; 
 New York Journal notice 
 concerning publication of, 
 i44k; Delay in progress of, 
 
 532"- 
 
 Federal Number (see also Repre- 
 sentation; Slaves): Argument 
 for, 361; Abrogation of, 363«. 
 
 Feudal Baronies: Comparison of, 
 with the Confederacy, 107. 
 
 Feudal System: Outline of, 106; 
 Compared with confederated 
 governments, 106; In rela- 
 tion to sovereignty, 306. 
 
 Fines : excessive, prohibited, 
 624<r, 726. 
 
 Fisheries: Rivalry in, 18; Dis- 
 solution of Confederacy 
 jeopardizes, 67, 68. 
 
 Fiske, John, 83K; Cited on rep- 
 resentation, 422». 
 
 Foreign AfEairs {see also Europe): 
 Impossible to conduct, if 
 controlled by individual 
 States, 141; Knowledge re- 
 quired to regulate, 3S8. 
 
 Foreign Influence: French, 2S«; 
 Division will inevitably in- 
 volve United States in, 40; 
 Will encourage dissension 
 among States, 98; Possible 
 influence of, under Con- 
 federation, 187 ; Openness 
 to, a weakness of Republics, 
 138; Dread of, in America, 
 138K; Sudden disappearance 
 of, in America, I3g»; Dif- 
 ficulty of, in new govern- 
 ment, 370; Will be exercised 
 to produce National dissen- 
 sion, 396 ; Will not affect 
 election of President, 463. 
 
 Foreign Nations: Inevitable 
 greater respect accorded to 
 a united country by, 21. 
 
 Foreign Troops : Proposed 
 amendment concerning, 651. 
 
 Fortifications: Influence on war 
 of, 41. 
 
 Forts, National: Necessity for 
 Federal jurisdiction over, 281, 
 283; Attempted seizure of, 
 by a State an act of war, 283; 
 Exclusive National authority 
 over, 6o6f. 
 
 Fox, Charles James: His India 
 bill, 480. 
 
 France: Rivalry of U. S. as re- 
 gards fisheries, 18; War with 
 Austria, 31; War with Eng- 
 land, 81; Temporary Ameri- 
 can dislike of, 7o«; Influence 
 in American politics, I38». 
 
 " Franklin " : 284». 
 
 Franklin, Benjamin: 70K. 
 
 Fugitive {see also Slave Law, 
 Fugitive): From justice, to be 
 delivered up, digir, 730; From 
 service, to be delivered up, 
 619'^. 730; National Govern- 
 ment to pay for unreturned, 
 717, 720. 
 
 General Clauses in Constitution 
 {see also Constitution; Govern- 
 ment, U. S. ; State Sover- 
 eignty): 598c, 6o2i-, 652, 653, 
 665 ; Exaggerated effect of, 
 201; The Constitution not 
 altered if general clauses 
 were omitted, 202; Analysis 
 of, 202; Why introduced, 203; 
 Objection to, as regards 
 taxation, 268; Singularly ex- 
 pressed, if unlimited, 268, 
 269; The battle-ground of 
 National politics, 268»; Iden- 
 tical with Articles of' Con- 
 federation, 270; A constitu- 
 tion a dead letter without, 
 298; The Constitution rad- 
 ically defective without, 301; 
 Proposed amendment con- 
 cerning, 688. 
 
 Genoa: Obliged to humble it- 
 self, 17. 
 
 Geometry: Why its principles 
 are received without difB- 
 culty, 193. 
 
 Georgia, I26»; Resistance to de- 
 crees of the Supreme Court 
 in Creek and Cherokee dis- 
 pute, ioi«; Blending of gov- 
 ernmental powers in, 326; 
 
INDEX. 
 
 759 
 
 Georgia — Continued. 
 
 Number of representatives 
 in the more numerous 
 branch of her legislature, 
 367; Jury trial in, 562. 
 
 Germanic League : Outline his- 
 tory of, 114-119. 
 
 Germany, 45«; Taxable poverty 
 of, 73; Coercion of Saxony 
 and Bavaria by, ggw; History 
 of confederated experience, 
 114; Federal system of, 115; 
 Governmental defects in 
 League, 116, 117; Only held 
 together by external danger, 
 117 ; Commercial trammels 
 in, 133; Montesquieu quoted 
 as to, 287; Internal dissen- 
 sions in, 533. 
 
 Gerry, Elbridge, 2». 
 
 Gideon, Jacob: Issues editions 
 of Federalist, xl. 
 
 Gold and Silver: States are 
 inhibited from making any- 
 thing else a tender in pay- 
 ment of debts, 294^896, 6o8f. 
 
 Government (see also Constitu- 
 tion ; Great Britain) : How 
 far controlled by a Constitu- 
 tion, vii; Stability of, viii; 
 Distinction between limited 
 and unlimited, xii; Vigor of, 
 essential to liberty, 4; En- 
 ergy in, stigmatized as hos- 
 tile to liberty, 4; Necessity 
 of, 7; Influence of personal 
 considerations in, 29; Influ- 
 ence of individuals in popu- 
 lar, 30; Popular, subject to 
 human passions, 30; Ten- 
 dency of popular, to faction, 
 54; Chiefly a judge between 
 opposing interests, 68; In- 
 herent difficulty of taxation 
 in popular, 74; Ancient, were 
 democratic, not republican, 
 83; Popular, wholly absent 
 in Europe, 83; Improvement 
 in, 83; Types of representa- 
 tive, 83«; Impossible with- 
 out power to enforce its 
 laws, 92; Why instituted, 
 93; Can only act upon indi- 
 viduals, 123; Over govern- 
 ments an impossibility, 123; 
 
 Government — Continued. 
 
 If feeble, not respected by 
 constituents, 161; Difficulty 
 of securing energy in, 
 with security of private 
 rights, 1G2; The danger of 
 fettering it with restrictions 
 which cannot be observed, 
 162, 163; Belief in America 
 that it must be more ener- 
 getic, 163; Obedience to, in 
 proportion to its goodness 
 or badness, 169; Money the 
 vital principle of, 187; Pow- 
 ers of, must be proportioned 
 to objects of, 189, 194; 
 Importance of stability in, 
 230; Energy in, requires du- 
 ration of power, 231; Diffi- 
 culty in delineating objects 
 and limits of, 232, 233; Re- 
 markable features of every 
 government reported by an- 
 cient history which was es- 
 tablished by deliberation and 
 consent, 237; Hitherto usu- 
 ally the work of one man, 
 237; Distinctions between 
 Federal and National, 250; 
 Substance should never be 
 sacrificed to forms, 258; 
 Transcendent right of people 
 to abolish or alter, 258, Pow- 
 ers of, involve possible 
 abuses, 260, 261; Importance 
 of veneration for, 386; Ought 
 to control the passions, and 
 to be controlled by the reason 
 of the public, 338; The great- 
 est of all reflections on human 
 nature, 344; Justice the end 
 of, 347; Great Britain an 
 unlimited, 355; Must contain 
 the means of its own preser- 
 vation, 392; Definition of a 
 good, 413 ; Lack of knowl- 
 edge the chief defect of 
 governments in America, 413; 
 Mischievous effects of muta- 
 ble, 414-416; The true test of, 
 is aptitude and tendency to 
 produce a good administra- 
 tion, 455, 505; Definition of a 
 limited, 520, 737; The general 
 genius of, all that can be 
 
760 
 
 INDEX. 
 
 Government — Continued. 
 
 relied upon, 569; Purpose of, 
 635. 639, 646; Right to reas- 
 sume, 711, 712. 
 
 G-overnment, United States {see 
 also Constitution^ Federal; 
 U. S.y. Power of, over State 
 governments, xii; Protection 
 of minority through, xiii; 
 Not akin to other sovereign 
 governments, xiv; Intended 
 to be equal in operation, xix; 
 Remarkable stability of, xix; 
 More likely to obtain ser- 
 vices of " best men," 13, 20; 
 Wiser and more judicious 
 than State governments, 14; 
 Unaffected by local circum- 
 stances, 15; Better fitted to 
 accommodate disputes, 16; 
 A strong one better placed to 
 maintain peace, 17; Specific 
 advantages of, 20; More like- 
 ly to pursue a uniform policy, 
 20; More easily supported 
 by all the States, 81; Limited 
 jurisdiction of, 84; Impos- 
 sible to base it on States, in 
 their corporate capacity, 90; 
 A power to coerce States 
 necessary in, 97; Must extend 
 its operations to individuals 
 or maintain vast army, 99; 
 Must carry its agency to citi- 
 zens, 100; Must stand in need 
 of no intermediate power, 
 100; Must have the powers 
 of ordinary magistracy, 100: 
 Must possess all the means 
 of executing its own powers, 
 100, Must act directly on 
 citizens, 103, 104; Will not 
 absorb State governments, 
 104; Likely to be encroached 
 upon by State authorities, 
 104; Inherent weakness of, 
 105; Slight relations of, to 
 citizens, 106; Natural rival 
 of State, 108; Must originate 
 in consent of the people, 143; 
 Must have a greater sanction 
 than delegated power, 143; 
 An indissoluble contract be- 
 tween parties, 143; Objects 
 to be provided for by, 144; 
 
 Government — Continued. 
 
 Quantity of power necessary, 
 144; Upon whom its power 
 should operate, 144; Neces- 
 sary unlimited powers of, 
 145; Means of, must be pro- 
 portioned to the end, 145; 
 Must have full control over 
 national forces, 146; Must 
 be compound, 146 ; Must 
 have full control of army, 
 navy, re venue, and commerce, 
 147; Most likely to know in- 
 terests of whole country, 147; 
 Structure, and not extent of 
 powers, the only question, 
 148, 149; Must have powers 
 equal to its trusts, 149; Jeal- 
 ous watchfulness of, by State 
 legislatures, 166; States will 
 even arm people against, 167; 
 Theory that the American 
 people will oppose, 169; Prob- 
 ably better administered than 
 State, 170; Close relations 
 with people necessary to 
 command loyalty, 171; Direct 
 action on people prevents 
 necessity of force, 172; Leg- 
 islation upon States only 
 necessitates coercion, 172; 
 Bagehot's view of, I72k; 
 Must sometimes employ 
 force, 174; Checked by States, 
 177, 178; Protests of State 
 legislatures against, I78»; 
 Must possess power over mili- 
 tia, 179; Must organize and 
 discipline militia, 180; Limited 
 powers of taxation of, result 
 in tutelage to State govern- 
 ments, 189; Necessities as to 
 taxation not calculable, 190, 
 Requisitions upon States sure 
 to excite hostility against, 
 190; Must possess general 
 power of taxation, 194 ; 
 Possible encroachment of, on 
 State governments, 196; Con- 
 jectures about the usurpa- 
 tions of, an unfathomable 
 abyss, 196 ; Difficulty of dis- 
 criminating powers in, 232; 
 National in its operations 
 and Federal in its extent, 251; 
 
INDEX. 
 
 761 
 
 GOTernment — Continued. 
 
 A truly national, involves su- 
 premacy, 251 ; Are too great 
 powers granied to?, 260; Are 
 powers of, dangerous to State 
 jurisdiction?, 260; Possible 
 danger of war powers of, 261, 
 262; Encroachments and as- 
 sumptions of, limited to no 
 party, 268«, 269»; Attempt to 
 reconcile State sovereignty 
 with, 277; Long battle over 
 public improvement powers 
 of, 28o»; Necessity of power 
 over capital, arsenals, etc., 
 281, 282 ; Jurisdiction over 
 forts, magazines, and arse- 
 nals, 283; In the case of Fort 
 Sumter, 283» ; Questions 
 concerning public territory, 
 284-286; Guaranty of repub- 
 lican government to States, 
 287; Protection of States by, 
 287, 288 ; Importance of 
 power to interfere with 
 domestic insurrection, 289 ; 
 Balance of, with States well 
 maintained, 305» ; In no 
 wise essential to the opera- 
 tion or organization of the 
 State governments, 307 ; Most 
 important in times of war, 
 309; Powers of, few and de- 
 fined, 309; Officeholders of, 
 will have local preposses- 
 sions, 313; DiflBculty of its en- 
 forcing an unpopular law in a 
 State, 315 ; Encroachments by, 
 on State governments a signal 
 for general alarm, 316; Vis- 
 ionary supposition that it will 
 establish a tyranny, 316; Im- 
 possibility that it can accu- 
 mulate a great military force, 
 316,317; Properly dependent 
 on people, 318 ; Restrained 
 by both people and State 
 governments, 353; Unfortu- 
 nate results of its interference 
 in local problems, 363« ; Not 
 dependent upon States, 365; 
 Resemblance of representa- 
 tive system of, to State gov- 
 ernments, 380, 381; Possible 
 sympathy of people with, 
 
 Government — Continued. 
 396 ; A compound republic, 
 410; An incorporation of dis- 
 tinct sovereignties, 660; Ex- 
 tent of powers of, 551; Ob- 
 jection to extent of powers 
 of, 576; Objection to expense 
 of, 678; Compared with ex- 
 pense of Confederation, 578; 
 Amendments not likely to 
 be opposed by, 686; Amend- 
 ments not dependent upon, 
 587; In its delegated powers 
 absolutely sovereign, 656, 
 66i, 665, 668 ; Not the final 
 and exclusive judge of its 
 own powers, 679^ 684; En- 
 deavor of, to enlarge its 
 powers, 685; Acts directly on 
 people, 701 ; Peculiar char- 
 acter of, 708; Definition of, 
 
 713- 
 Grant, TI. S., 330». 
 Great Britain, 13, 26, 31, 346; 
 
 Check on government in, vii; 
 Discriminating taxation in, 
 viii ; Hamilton's numerous 
 references to, xxxvii; Ex- 
 perience of British treaty, 
 cited, 15 ; Rivalry of U. S. 
 as regards fisheries, 18; The 
 navy of, a result of union, 
 20; Queen Anne's letter on 
 union of, 22 ; Union of, 
 22, 23 ; Experience when 
 divided, 26 ; Frequency of 
 wars of, 31; Wars with Spain, 
 32»; Illicit trade with Spanish 
 Main,32»; Fortunate position 
 as to external danger, 46 ; 
 Lack of Bill of Rights in, 55«; 
 Possible indirect commerce 
 with the United States, 65; 
 Suggested commercial dis- 
 crimination against, 66 ; 
 American colonies of, pro- 
 duce national antagonism, 
 7o»; Preference for indirect 
 taxes in, 74; Bill for regulat- 
 ing commercial relations with 
 U. S., 132 ; Trade relations 
 with, I32»; Anti-British party 
 in America, I32»; Intrigues 
 of, in America, 138K; Infrac- 
 tions of Treaty of 1783 by, 
 
762 
 
 mDEX. 
 
 Great Biitain — Continued. 
 
 I4i»; Menace of American 
 colonies of, to U. S., 153, 156, 
 156 ; History of standing 
 armies in, 163-165; Accord- 
 ing to Bagehot, government 
 of, possesses a, dignified and 
 efficient power, I72» ; Ex- 
 perience of, during Common- 
 wealth, I72»; Parliamentary 
 term of, 230«, 23i»; Indeter- 
 minate limits of courts of, 233; 
 Government of, 246; Never 
 cheated into extensive peace 
 establishment, 263; No check 
 upon standing army in, 264; 
 Montesquieu's view of con- 
 stitution of, 320, 321; Blend- 
 ing of departments in, 321, 
 322; The House of Commons, 
 350, 351, 375, 381; No con- 
 stitutional limitations on 
 Parliament in, 356 ; Con- 
 stitutional insecurity in, 365; 
 System of representation in, 
 375; Sacrifice of the landed 
 classes in, 401K; The House 
 of Lords, 425; Impeachment 
 system in, 435 ; President 
 compared to king of, 447, 448, 
 457-466 ; Why the king's 
 power of an absolute negative 
 on bills has been long dis- 
 used, 458 ; Power of sover- 
 eign in, 462«, 465; Executive 
 cabinet of, 473 ; Irresponsibi- 
 lity of king of, 473; System of 
 removing judges in, 529^; Ju- 
 dicial system of ,539,540; Trial 
 of prize cases in, 864; System 
 of jury trial in, 568, 569; Bills 
 of Rights in, 572, 873; Liberty 
 of the press in, 575; Taxation 
 of newspapers in, 676. 
 
 Great Lakes: Navigation of, 67. 
 
 Greece: Example of states of, in 
 foreign wars, 21; Experience 
 of, in wars for personal ends, 
 28; Distractions of, 44, 47, 48, 
 82; Reliance of, on single 
 men, 237, 238 ; Montesquieu 
 quoted as to, 287. 
 
 Greenbacks: Non-circulation of, 
 in California during Civil 
 War, ioi«. 
 
 Grotius: Cited, 577. 
 Gulf Stream: American control 
 of, 7i«. 
 
 Habeas Corpus: A check on the 
 judiciary, 859; Limitation on 
 suspension of, 570; Suspen- 
 sion of, in U. S., 572« ; Can 
 only be suspended in cases 
 of rebellion, 607c, 725; Pro- 
 posed amendment concern- 
 ing, 640, 643. 
 
 Hamilton, Alexander, I32», 
 286», 532», 574» ; Views on 
 government, vii ; Exceeds 
 powers by signing Constitu- 
 tion, XX ; Writes under name 
 of CEEsar, xxi; Want of po- 
 litical tact shown by, xxi; 
 Plans The Federalist, xxii; 
 Accused of repeating Publius 
 in New York Convention, 
 XXV ; Share of, in The Feder- 
 alist, xxix-xxxix; The master 
 writer of The Federalist, 
 xxxix; Preface to edition of 
 1788, Ixxvii; Syllabus of The 
 Federalist , xliii; Table of Con- 
 tents of The Federalist, Ixxiii ; 
 Opinion on National Bank, 
 
 655. 
 
 Hamilton, John C. : Edits The 
 Federalist, xxx, xl. 
 
 Hancock, John: Bargain for 
 Governorship of Massachu- 
 setts, 2». 
 
 Hannibal, 31. 
 
 Hartford Convention, 3i5«, 36i«; 
 Amendments proposed by, 
 687. 
 
 Hayes, Rutherford B., 330». 
 
 Henry, Patrick, 3«, 6». 
 
 Heredity: Declaration concern- 
 ing, 635, 646. 
 
 High Seas {see also Admiralty; 
 Maritime Jurisdiction): The 
 power under the Constitution 
 of defining and punishing of- 
 fences on, 272, 273. 
 
 Holland: Wars of, 31; Not a 
 republic, 246. 
 
 House of Bepresentatives : see 
 Representatives , House of. 
 
 Human Nature: Its fair side, 
 371, 378-380. 
 
INDEX. 
 
 763 
 
 Hume, David : Citation from his 
 essays, 687, 688. 
 
 Impeachment (see also Judiciary, 
 Federal; Senate): Difficulty of 
 constituting court of, 433 
 Share of Senate in, 433, 435 
 Nearly always political, 434 
 History of, in U. S., 434«; A 
 national inquest into conduct 
 of office-holder, 435; System 
 of, in Great Britain, 435; In 
 State constitutions, 436, 441; 
 Supreme Court not fitted to 
 try, 435; Proposition to unite 
 the Supreme Court with Sen- 
 ate in, 437 ; Proposition to 
 create a distinct body for 
 trials of, 438 ; Vehemence 
 against constitutionalsystem, 
 441 ; Accumulates undue 
 power in Senate, 441; Sena- 
 torial favoritism for office- 
 holder, 443 ; Should not be 
 given to Senate, because ju- 
 dicial, 444 ; Makes senators 
 their own judges in treaty 
 cases, 445; President liable 
 to, 488; King of Great Britain 
 not liable to, 468; Partisan- 
 ship in, 54i« ; Taken from 
 judicial and given t<:> legis- 
 . lative authority, 542 ; One 
 advantage of lodging in Sen- 
 ate, 543 ; To be brought by 
 House of Representatives, 
 600^, 721; Tried by the Sen- 
 ate, 600^, 722 ; Proposed 
 amendment concerning, 639, 
 645, 650. 
 
 Imposts: see Duties; Tariff; 
 Taxation. 
 
 Impressment: Proposed amend- 
 ment concerning, 688. 
 
 Income Tax of 1894: Annulled, 
 viii; Intended evasions of, 
 I29». 
 
 Incorporation: Power of Con- 
 gress of, 651; Nature of, 658. 
 
 India Trade: Rivalry with Eu- 
 rope in, 18. 
 
 Indian Nations : Necessity of 
 garrisons to check, 154; Men- 
 ace of, 156; Necessitate a 
 standing army, 159; How far 
 
 Indian Nations — Continued. 
 members of a State, and hov7 
 far a foreign nation, 277. 
 
 Indian Trade: Importance of 
 western posts to, 155; Im- 
 portance of regulating, 277; 
 Congress shall have power 
 to regulate, 6031:. 
 
 Indian Wars: Usually due to 
 conduct of individual States, 
 16. 
 
 Indirect Taxes (^see also Duties; 
 Excises; Taxation): The most 
 expedient source of revenue 
 in the United States, 74, 128- 
 130 ; Compared to a fluid 
 which finds its own level, 
 129; Prescribe their own 
 limit, 130; Will be the chief 
 means of national revenue, 
 130; Limited to duties and 
 excises on consumption, 221. 
 
 Insurrection {see also Rebellion; 
 Secession ; Shays' Rebellion ; 
 Whiskey Insurrection): Means 
 to suppress, 174, 176 ; Na- 
 tional power to quell State, 
 288, 289 ; Unlikelihood that 
 it will extend throughout 
 States, 290. 
 
 Internal Affairs: Contention that 
 the National Government 
 should have no concern in, 62. 
 
 Internal Improvements (see also 
 Canals; Public Roads; Rail- 
 roads): Growth of National 
 powers through, 28o» ; His- 
 tory of, 28o«; Discussion of, 
 in Convention, 663 ; Limita- 
 tion upon, in Confederate 
 Constitution, 723, 724. 
 
 Internal Bevenue Laws: Nullifi- 
 cation of, in Southern States, 
 ioi». 
 
 Internal Taxes: Divided between 
 direct and indirect, 221; Will 
 be resorted to only for sup- 
 plementary revenue, 308; 
 Possibility that they will be 
 raised by quotas, 808. 
 
 International Law: see Law of 
 Nations. 
 
 Ireland : Laws maintained with 
 difficulty in, ggjz ; Elections 
 in, 361. 
 
764 
 
 INDEX. 
 
 Ittlian States: Venice a terror to, 
 31; Distractions of, 47, 48, 82. 
 
 Jackson, Andrew; 28i«, 32g«, 
 5I2», 520«, 542«; Nullifica- 
 tion proclamation of, 692. 
 
 James II. : Increases standing 
 army, 164. 
 
 Jay, John: Aids in The Federal- 
 ist, xxiii; Slight share in The 
 Federalist, xxxix; Pamphlet 
 of, cited, 684. 
 
 Jefferson, Thomas, 6«, 7o«, I32», 
 138», 234«, 267K, 28o», 344«, 
 51IK, 520K, 562«, 572»; Pro- 
 test by, 55«; Cited as to 
 legislative tyranny in Vir- 
 ginia, 331; Draft of a con- 
 stitution for Virginia by, 
 334; Scheme of plural execu- 
 tive, 469«; Opinion on Na- 
 tional Bank, 651; Drafts 
 Kentucky Resolutions, 679; 
 Louisiana amendment to the 
 Constitution, 686. 
 
 Jenkinson, Charles: Introduces 
 commercial bill, 132. 
 
 Jndges: Shall hold their offices 
 during good behavior, 6i4£-, 
 729; Their compensation, 
 6i4<r, 729. 
 
 Jndiciary: Introduction of per- 
 manent, 48; Possesses no 
 ultimate power to enforce 
 laws, 93; Greatest defect in 
 Confederation a lack of, 140; 
 Absolute necessity for one 
 supreme, for National exist- 
 ence, 140 ; Slight relative 
 popularity of, 337 ; Defect in 
 this department under Con- 
 federation, 617 ; System of 
 appointing, 818 ; Tenure of 
 office, 518, 523; Should serve 
 during good behavior, 518; 
 Tenure of office under State 
 constitutions, 618; A barrier 
 to despotism in a monarchy, 
 618; A barrier to legislative 
 oppression, 618 ; The least 
 dangerous department of 
 government, 618, 519 ; Pos- 
 sesses judgment, but no force 
 or will, 619; Weakness of, in 
 relation to executive and 
 
 Judiciary — Continued. 
 legislative, 619; Necessary 
 independence of, 519, 620; 
 The weakest of the three de- 
 partments of power, 619; Re- 
 quisite independence of, 623; 
 The bulwarks of a limited 
 constitution, 623 ; The inde- 
 pendence of the judges es- 
 sential, and why, 623-526 ; 
 Difficulty of resisting major- 
 ity, 624 ; As a mitigating 
 power on severe laws, 624; 
 Evils of periodical appoint- 
 ment of, 825; Necessary per- 
 manence of, 52S; Voluminous 
 laws require permanence in, 
 525; Experience and knowl- 
 edge essential in, 826; Neces- 
 sity of permanent salaries 
 for, 527; System of removing 
 in Great Britain and Massa- 
 chusetts, S29»; Discussion of 
 age limitation of, 829; New 
 York system of, 829 ; Must 
 have coextensive powers with 
 legislature, 631; Partition of 
 power of, 638; Absurd fear 
 of its encroaching on legis- 
 lative authority, 642; Com- 
 parative weakness of, 642 ; 
 Looks beyond national law, 
 562; Means of despotism by, 
 569; Its province and duty to 
 expound the law, 687. 
 
 Judiciary, Federal (see also Su- 
 preme Court): Guarded from 
 popular influence, xii; Local 
 resistance to, xiv ; Attacked 
 by legislative and executive 
 branches, xv ; The distin- 
 guishing feature of the Na- 
 tional Government, xviii; Un- 
 popularity of, 'xviii; Respect 
 accorded to, xviii; Peculiar 
 power of, xviii ; Clamor 
 against, 436», 438 ; General 
 survey of, 817-554 ; Its duty 
 to declare unconstitutional 
 acts void, 520; Vindication of 
 its power to pronounce legis- 
 lative acts void, because con- 
 trary to the Constitution, 520- 
 823; Peculiar advantages of 
 the provision in the Constitu- 
 
INDEX. 
 
 765 
 
 Judiciary — Continued. 
 
 tion for support of, 627, 628; 
 Precautions for responsibility 
 of, 628; Constitutional clause 
 concerning salaries, 527; Li- 
 able to impeachment, 538; 
 Want of a provision for re- 
 moving, 889 I Omission of a 
 provision for removing, on ac- 
 count of inability, defended, 
 529, 630; Extent of powers 
 of, 630, 531, 635; Must have 
 cognizance over cases con- 
 cerning foreign countries or 
 citizens, 532, 533; Interven- 
 tion between States, 633, 634, 
 637; Will not be subject to 
 local attachments, 534; Must 
 have cognizance of maritime 
 causes, 536, 537; System 
 under Confederation, 533, 
 535; Must decide boundary 
 disputes, 536, 537; Need of 
 equity powers by, 636; Power 
 over treaties, and all cases 
 affecting ambassadors, 637; 
 Power over cases in which 
 the United States shall be a 
 party, 837; Power over dis- 
 puted State grants, 637; Pow- 
 er over cases in which for- 
 eigners are concerned, 537; 
 Proper constitution of, 538; 
 No objection to, that does 
 not lie against State judici- 
 aries, 840, 841; Modelled on 
 most State systems, 841,842; 
 Necessity of inferior courts 
 in, 643; Proposition that the 
 State courts shall be the in- 
 ferior courts of, 843; System 
 of inferior courts of, 844 ; 
 Clamor against, as regards 
 appellate jurisdiction over 
 facts, 846; Appellate powers 
 of, 547, 649; Suggested super- 
 sedure of trial by jury in, 
 846, 847; Cases of concurrent 
 jurisdiction with States, 548, 
 550-652; Limited to causes of 
 Federal cognizance, 881; Na- 
 tional and State systems one 
 whole, 653; Whether an ap- 
 peal would lie from the State 
 courts to subordinate Federal 
 
 Judiciary — Continued. 
 
 judicatories, 553; Possible re- 
 lation of State courts to, 684; 
 Precise limits of, 657, 568; 
 The chief added item of ex- 
 pense in the new government, 
 578; Tribunals inferior to the 
 Supreme Court may be erect- 
 ed, 6o5<r, 724; Powers of the, 
 614-617^, 729, 730; Vested in 
 a Supreme Court and inferior 
 courts, 6i4(r, 729; Restrictions 
 as to suits against a State, 
 625(r, 730 ; Proposed amend- 
 ment concerning, 632, 638; 
 Proposed amendment con- 
 cerning limitations on, 632, 
 634, 641, 644, 649; Proposed 
 amendment concerning sala- 
 ries of, 639, 650 ; Proposed 
 amendment concerning limit 
 of, in land controversies, 641, 
 645; Limitation on, in Ordi- 
 nance of Nullification, 691, 
 699 ; Peculiar and limited 
 jurisdiction of, 708; Distinc- 
 tion between jurisdiction of 
 English courts and, 708. 
 Judiciaries, State : Importance 
 of local courts, 105; Jurisdic- 
 tion extends only to such 
 cases as they have had cog- 
 nizance of before organiza- 
 tion of National Government, 
 532«, 881; Copied in organi- 
 zation of federal courts, 542; 
 Recognition of, by Federal 
 Government, 844 ; Reasons 
 for not giving jurisdiction in 
 National causes, 844 ; Will 
 have concurrent jurisdiction 
 with subordinate Federal ju- 
 dicatories, 648, 860-682; Re- 
 maining jurisdiction left to, 
 651 ; Not deprived of their 
 primitive jurisdiction, 552 ; 
 Possible relation of, to Nation- 
 al judiciary, 554 ; Jurisdiction 
 remaining to, 558 ; Diversity 
 of systems of, 561, 562, 567. 
 Jurisdiction : Necessity of one 
 supreme, 140 ; Derivation of 
 word, 647; Nature of con- 
 current, between Nationaland 
 State courts, 548, 550-882. 
 
766 
 
 INDEX. 
 
 Jury: Trial by, not superseded 
 in Federal courts, 546, 549; 
 Not abolished by Constitu- 
 tion, 549, 558, 568; In relation 
 to national judiciary, 559 ; 
 Want of Constitutional pro- 
 vision concerning, 555; Rela- 
 tive value of, 558; A check 
 on judicial despotism, 559; 
 Not a safeguard againt op- 
 pressive taxation, 559 ; As a 
 check on corruption, 560 ; 
 Not less liable than judges 
 
 . to corruption, 560 ; Why a 
 clause concerning, was not 
 inserted in Constitution, 561; 
 Jefferson's proposition to 
 elect, 56i» ; System of, in 
 States, 561, 562, 566; Impos- 
 sibility of adopting State sys- 
 tems in national courts, 563, 
 567; Cases in which it is in- 
 eligible, 563, 564; Proposition 
 concerning it made by the 
 minority of Pennsylvania, 
 563 ; Proposition of Massa- 
 chusetts Convention concern- 
 ing, 565, 566 ; Difficulty of 
 framing clause concerning, 
 567; Only important in crim- 
 inal cases, 568 ; System in 
 New York, Connecticut, and 
 Great Britain, 568, 569 ; In 
 criminal cases, 571; Trial se- 
 cured in suits at common 
 law, 6241:, 726 ; Proposed 
 amendment concerning, 633, 
 634, 636, 640, 641, 647, 650. 
 
 Jury, Grand: Proposed amend- 
 ment concerning, 632, 634,640. 
 
 Kent, James, cited, xxix, xxxi, 
 
 XXXV. 
 
 Kentucky: 284«; 30i» ; Resolu- 
 tions of 1798, 3I5», 679. 
 
 Know Nothing Party : Rise of, 
 I39». 
 
 Lacedeemon, 5o»; Power in Am- 
 phictyonic League, 110; Rule 
 concerning admiral of, 161. 
 
 Land: Rise in, due to commerce, 
 73 ; Decreased value of, 89; 
 Difficulty of valuing, for pur- 
 poses of taxation, 130. 
 
 Landed Interests: Political con- 
 trol during Revolution, ix, 2« ; 
 Eventual result of laws es- 
 pecially favoring, x ; vs. Manu- 
 facturing, 58: Representation 
 in New York State of, 217; A 
 unit on questions of taxation, 
 217 ; Predominance of, in U. 
 S., 399; Will predominate in 
 national government, 400 ; 
 Possible sacrifice of, to mer- 
 cantile class, 400 ; Battle of, 
 with mercantile interest,400«; 
 Battle with commercial in- 
 terests in Europe, 40OK; The 
 national government will not 
 unduly favor, 401; The injury 
 of commerce an indirect blow 
 at, 401. 
 
 Land Tax: Unpopularity of na- 
 tional, 75; Oppressive, 78; 
 Proposition to leave to States, 
 212; Bears equally on rich and 
 poor landholder, 217; System 
 of, 222; Will answer purpose 
 of the States, 224. 
 
 Lands, Public {see also Territory, 
 Public ; Western Territory) : 
 Grants of, to railroads, 28i»; 
 History of State grants of, to 
 nation, 284^; Acquisition of, 
 285»; Possible alienation of, 
 285«. 
 
 Lansing, John, Jr.: Withdraws 
 from the Convention, xx. 
 
 Law of Nations: Importance of 
 observing, 13; More likely to 
 be observed by one national 
 government, 13. 
 
 Laws: Control over, vii; An- 
 nulment of, viii; Discrimi- 
 nating, viii, x; Mere recom- 
 mendations if unaccompanied 
 by power to enforce, 93 ; 
 Dead letters without courts, 
 140; In their very nature su- 
 preme, 204 ; Mere treaties, 
 if anything but supreme, 204; 
 Mere usurpations, if uncon- 
 stitutional, 206; Evilofmuta- 
 able, 230; Diversity of State, 
 373, 375; Equal operation of, 
 379; Excessive and unstable, 
 a defect of American govern- 
 ments, 411 ; Checks upon. 
 
INDEX. 
 
 767 
 
 Laws — Continued. 
 
 4II»,413; Evil of voluminous 
 or bad, 415 ; Instability in, 
 the opportunity of speculator 
 and swindler, 415; Unstable, 
 disturb and check business, 
 416 ; The interpretation of, 
 the function of the judiciary, 
 581; Case of contradiction be- 
 tween fundamental and stat- 
 ute, 521; Contradiction be- 
 tween two or more, 522; 
 Voluminous, require perma- 
 nent judiciary, 525; A body 
 which passes, should not be 
 the judge of, 540; Pretended 
 establishment of common and 
 statute, by Constitution, 572; 
 Only to be suspended by rep- 
 resentatives, 635, 647 ; Dis- 
 tinction between constitu- 
 tional and legislative, 687; 
 Decision on conflicting, 687; 
 Inevitable inequality of, 696- 
 697 ; Revolutionary right of 
 resisting, 705; Nullification a 
 peaceable means of resisting, 
 705- 
 
 Laws, U. S.: Superior to State, 
 xii; Distinction between non- 
 compliance of a State with, 
 and actual resistance to, 100- 
 102 ; Opposition to, should 
 be quelled by same methods 
 employed by States, 102; Im- 
 possible, if contravened by 
 laws of States, 140; No more 
 unpopular than State, 170 ; 
 Will be the supreme, of the 
 land, 173; Who is to judge 
 propriety of, 203 ; Unconsti- 
 tutionality of, 680, 685; At- 
 tempted nullification of, 690; 
 Absurdity of State abrogation 
 of. 694; Constitutional meth- 
 od of repealing, 694; Resist- 
 ance to, is treason, 706. 
 
 Leagues: European rage for, 91. 
 
 Lee Faction, 3». 
 
 Legal Interpretation (see also 
 Construction): Rules of, 556. 
 
 Legal Tender (see also Bills of 
 Credit; Paper Money): Un- 
 just use of, x; Nature of, 
 xiv; The right to create. 
 
 Legal Tender — Continued. 
 a power of sovereignty, 
 xiv; Injustice of, xiv; Re- 
 sistance to greenbacks in 
 California, ioik; In payment 
 of debts, no State shall make 
 anything but gold and silver 
 coin a, toic, 726; Abstract of 
 decision in Third Legal Ten- 
 der Case, 736. 
 
 Legislation (see also Laws): Sin- 
 gle-bodied, legislatures pro- 
 duce variable, I42«; Check 
 to excessive, by dual-bodied 
 legislatures, 142K; Excessive 
 and unstable, a. defect of 
 American governments, 411; 
 Checks upon, 4ii»; Evils of 
 mutable, 414-416. 
 
 Legislative Department {see also 
 Congress): Attack of, on judi- 
 ciary, xv; Attackfif, on execu- 
 tive, XV ; Lessening" of in- 
 fluence of, through executive 
 assumption of war powers, 
 XV ; Power of, lessened by 
 war, 43; Deyslopment of bal- 
 ances and \!^cks on, 48 ; 
 A single body an improper 
 system, 141; Defects of, illus- 
 trated in Continental Con- 
 gress and Assembly of Penn- 
 sylvania, 142K; Tendency to 
 check legislation in dual 
 body, I42«; A vortes..Df gov- 
 ernmental power, tSSSj ^^' 
 croachments of, in UTs. gov- 
 ernment, 328»; As liabjj 
 tyranny as executive, 
 Difficulty of setting precis? 
 limits to powers of, 330; En- 
 croachments of, in Virginia, 
 331; Encroachments of, in 
 Pennsylvania, 332, 840; Re- 
 publican governments ag- 
 grandize, 337, 345; Relatively 
 greater popularity of, with 
 people, 337; The greater the 
 size of, the greater the influ- 
 ence of individuals, 389; A 
 mean in size of, 389; Advan- 
 tage of dual-bodied, 412 ; 
 Single-bodied, liable to sud- 
 den and violent passions, 412; 
 Opinions favor a numerous. 
 
768 
 
 INDEX. 
 
 Legislative Department — Cont'd. 
 467 ; President must not be 
 complaisant to, 477 ; Tendency 
 to absorb all powers, 478, 489; 
 In republics, the representa- 
 tives fancy they are the 
 people, 478; Impatience tow- 
 ards other departments, 478; 
 Not suited to exercise par- 
 doning power, 498; Prob- 
 able bargains over offices, 
 607; Power of courts to de- 
 clare acts of, unconstitu- 
 tional, 520; Powers of, lim- 
 ited by Constitution, 521; 
 Not the judges of their own 
 constitutional powers, 521; 
 Limited delegated power of, 
 521; The judiciary a bulwark 
 against encroachments of, 
 623; Judicial power must be 
 coextensive with, 531; Argu- 
 ment that branch of, should 
 be court of last resort, 839, 
 540; Vital objections to lodg- 
 ing judicial powers in, 640, 
 541; Cannot revise judicial 
 decisions, 542; An act con- 
 trary to the Constitution 
 passed by, not law, 687. 
 
 Legislatures: see State Legisla- 
 tures. 
 
 Letters of Uarque: Restrictions 
 upon, 294, 295, 605.;, 6o8<r. 
 
 Liberty: Relation of, to faction, 
 56; In Greece a specious name 
 for independence of federal 
 members, 113; Difficulty of 
 maintaining, in energetic 
 government, 230; Endan- 
 gered by abuses of liberty as 
 well as by abuses of power, 
 423. 
 
 Limitations : A checlc on bad 
 legislation, as well as on 
 good, 137. 
 
 Lincoln, Abraham, 23», 572«; 
 Quoted, xviii ; Hostility of, 
 to slavery, 715 ; The Presi- 
 dent of a section, not of the 
 Union, 715. 
 
 Livingston, Edward: Writes 
 Jackson's Nullification Proc- 
 lamation, 6g2. 
 
 Local Government : Relatively 
 
 Local Government — Continued. 
 greater importance of, in 
 modern life, 3o6«. 
 
 Local Frepossessions: Great 
 proportion of governmental 
 errors due to, 313. 
 
 Lodge, H. C: Edits edition of 
 The Federalist, xl. 
 
 Lords, House of ; Reference to, in 
 7 he Federalist, xxxviii; Com- 
 pared with Senate, 425; Has 
 not been able to defend itself 
 against Commons, 425; The 
 court of last resort, 539, 542. 
 
 Louis XIT., 31; Forces humilia- 
 tion of Genoa, 17. 
 
 Louisiana: Purchase of, 6»,285»; 
 Constitutional amendment 
 concerning, 686; Slavery in, 
 689. 
 
 Loyalty: Merely an expression 
 of real nationality, I72»; 
 Growth of, in U. S., 172K. 
 
 Lycian Confederacy, 305; Organ- 
 ization of, 53; Montesquieu's 
 admiration for, 53 ; One of 
 the best of ancient confed- 
 eracies, 96. 
 
 Lycurgus, 237, 238. 
 
 Mably, Abbe de: On a confed- 
 erate republic, 33; On Achaean 
 League, 112; Cited on Belgic 
 Confederacy, 122. 
 
 Macedon: Relations of, to Am- 
 phictyonic League, 110, 111; 
 Relations of, to Achsan 
 League, 112, 113. 
 
 Madison: Aids in The Federalist, 
 xxiii ; Share of, in The Fed- 
 eralist, xxix-xxxix; Account 
 of The Federalist by, xlix; 
 Quoted as to majority gov- 
 ernment, 55«; Notes on Nos. 
 18-20 of The Federalist, io8k ; 
 His notes of ancient and 
 modern confederacies, logw; 
 Writes Virginia Resolutions, 
 684; Abstract of decision in 
 case of Marbury vs., 686. 
 
 Maine, 2S4». 
 
 Maintenon, Madame de, 29. 
 
 Majority: Grants to, viii; Lack 
 of self-control in, x; Distinc- 
 tion between popular control 
 
INDEX. 
 
 769 
 
 Majority — Continued. 
 
 and, xii; Sacrifice of power 
 by, in National Constitution, 
 xiii; Overbearing rule of, 55; 
 Danger of factious, in popu- 
 lar government, 69; No gov- 
 ernment by, under Confed- 
 eration, 135, 136; To demand 
 more than, is to place control 
 in hands of minority, 136; 
 Absurdity of subjecting, to 
 perversity of inconsiderable 
 minority, 256; Must not be 
 unlimited in powers, 288, 389 ; 
 Proper protection of minority 
 from, 346; Oppression by, 
 will produce anarchy, 347; 
 Oppression by, works its own 
 cure, 347; Violation of free- 
 dom by, 397; Of both people 
 and States required for legis- 
 lation, 411; Unstable legisla- 
 tion permits robbery of, 416; 
 Cannot ratify treaties, 503; 
 More than, required by Con- 
 federation, 604; The judi- 
 ciary a check upon oppres- 
 sion by, 533, 634. 
 
 Man (j-« also American People', 
 People): Capacity of, for self- 
 government, 1, 683; Impos- 
 sible to produce uniform- 
 ity in, 56; Tendency to fall 
 into mutual animosities, 87; 
 Government originates in the 
 passions of, 93; Collectively 
 acts with less rectitude than 
 individually, 94; Attachment 
 of, a matter of propinquity, 
 IDS; The self-made, an excep- 
 tion, 219; Influence of public 
 opinion upon, 336; Republi- 
 can government presupposes 
 more good than bad in, 371. 
 
 Manufactures: Increase of, in- 
 evitable with growth of 
 country, 267; S. C. nullifica- 
 tion of protection to, 690. 
 
 Manufacturing Class: Want of 
 influence of, in Revolution, 
 ix; vs. Landed Class, 58. 
 
 Marhury vs. Madison: Abstract 
 of decision in case of, 686. 
 
 Maritime Crimes: National power 
 over, necessary, 273. 
 
 Maritime Jurisdiction {see also 
 Admiralty): The judicial 
 power shall extend to all 
 cases of admiralty and, 615c. 
 
 Marlborough, John, Duke of, 31. 
 
 Marlborough, Sarah, Duchess of, 
 29. 
 
 MarcLue and reprisal, letters of, 
 6o5ir, 724. 
 
 Marshall, John, 542«; Abstract 
 of decision of, in case of 
 Marbury vs. Madison, 686 ; 
 In case of McCulIoch vs. Ma- 
 ryland, 736. 
 
 Maryland, I26» ; Senate of, 
 xxxviii; Refusal of, to agree 
 to the Articles of Confedera- 
 tion, 239 ; Peculiarly vulner- 
 able coast of, 366; Blending of 
 governmental powers in, 326; 
 Peculiar excellence of senate 
 of, 424 ; Jury trial in, 562. 
 
 Mason, George, 55«. 
 
 Massachusetts, I26«, 284», 301H, 
 382, 459; Revolt of Shays in, 
 X, 29, 33, 125; Hancock's bar- 
 gain for Governorship of, 2«; 
 Compelled to raise troops, 
 160 ; Blending of govern- 
 mental powers in, 323; Num- 
 ber of representatives in the 
 more numerous branch of leg- 
 islature of, 367; Size of sena- 
 torial districts of, compared 
 'with that of the districts 
 proposed by the convention, 
 383; Provision of, concerning 
 impeachments, 441; National 
 veto modelled on constitu- 
 tional system of, 495; System 
 of removing judges in, 529»; 
 Jury trial in, 562 ; Proposed 
 jury amendment of, 566. 
 
 Mercantile Classes (see also Com- 
 mercial Classes): Special in- 
 fluence of, 216. 
 
 Mexico: Standing army of, 43K. 
 
 Military Coercion : In confed- 
 eracies, can only be applied to 
 weaker members, 99. 
 
 Military Establishments in U. S. 
 (see also Armies, Standing; 
 Army, U. S.; Regulars, U. S.): 
 Under Confederation, 152, 
 163; Necessity of future, 153- 
 
;7o 
 
 INDEX. 
 
 Military EBtablishments — Cont'd. 
 155; State jealousy of State, 
 167. 
 
 Military Power : Unfortunate in- 
 fluence of, 45 ; In times of 
 danger, tends to degrade the 
 condition of the citizen, 45 ; 
 Must be regulated by the re- 
 sources of the country, 179. 
 
 Militia : Necessity of National 
 control of, 20, 179; Example of 
 British, 20 ; Not serviceable 
 for regular work, 154; Anti- 
 Federalist contention that it 
 is a natural bulwark, 160 ; 
 Dependence on, almost lost 
 American independence, 160; 
 Enormous expense of, 160 ; 
 Greater local bitterness 
 towards, 171K; Adequate to 
 quell small insurrections, 175; 
 Inadequacy of, for serious 
 difficulties, 175, 176 ; Neces- 
 sity for some more regular 
 force in every government, 
 176; Should have uniformity 
 in organization and disci- 
 pline, 180; Natural defence of 
 a free country, 180 ; States 
 retain appointment of officers 
 of, 180, 184; Improbability of 
 abuse of, by national govern- 
 ment, 181; Dangers from se- 
 lect corps of, 182, 183; Impos- 
 sibility of disciplining all, 
 182 ; Jefferson's proposition 
 for a classified, i82»; Unpop- 
 ularity of service in, due to 
 War of 1812, i82»; Creation 
 of new National Guard, i82»; 
 Local sentiment in, i82«, 
 i85»; Lessens the call upon 
 regular army, 183 ; Absurd 
 idea of danger to liberty from, 
 184; Furnish succor to neigh- 
 boring States, 185; National 
 abuse of, in employment at 
 distance, 185 ; Possible sale 
 of, to foreign governments, 
 186 ; More likely to turn 
 against than aid usurper, 185; 
 Experience of, in Whiskey 
 Insurrection, i85» ; Refusal 
 of, to invade Canada in 1812, 
 i85» ; New England, in War 
 
 Militia — Continued. 
 
 of 1812, i85«; In Civil War, 
 i85» ; In railroad strike of 
 1894, i85«; An absolute check 
 on a standing army in U. S., 
 317; Competency of Congress 
 to legislate for, 374 ; Presi- 
 dential power over, 459; Pro- 
 posed amendment concern- 
 ing, 638. 640, 642,645,649,688. 
 
 Minority: Grants by, viii; Help- 
 lessness of, viii ; Guaranty 
 to, viii, xiv; Protection of , by 
 National Government, xiii, 
 xiv; Lack of protection to, in 
 separate States, 55« ; Temp- 
 tation to apportion taxes on, 
 58 ; Sacrifice of, in pure 
 democracy, 60 ; Undue in- 
 fluence of, under Confedera- 
 tion, 136 ; Possible undue 
 power of, 288, 289; Protection 
 of, from majority, 34B; Unsta- 
 ble legislation the opportu- 
 nity of a shrewd, 415; Special 
 power of, over treaties, 503; 
 Power of, under Confedera- 
 tion, 504; The judiciary the 
 protector of, 523. 
 
 Minos, 237. 
 
 Mississippi Biyer : Navigation 
 of, 6«, 19, 68; Importance of, 
 in Civil War, ig«; Exclusion 
 of U. S. from, 89. 
 
 MlBsonri Compromise, 68g. 
 
 Monarchy : Definition of, xliii, 
 xliv; Tendencies in, to per- 
 sonal wars, 18; No more 
 addicted to wars than repub- 
 lics, 30; Unlikelihood that 
 kings will sacrifice their 
 countries, 138; Distrust of, 
 164; Aversion of American 
 people to, 447; Tendency of 
 Federal government toward, 
 685. 
 
 Money: The greatest cause of 
 differences among men, 39; 
 Existing scarcity of, in U. S., 
 74; The vital principle of the 
 body politic, 187; Power, 
 under the Constitution, of 
 coining, 277, 294, 296. 
 
 Money Bills: Enormous power 
 secured through, 386, 388. 
 
INDEX. 
 
 771 
 
 Monopoly: Unjust acts concern- 
 ing anti-, X, 651, 654; Pro- 
 posed amendment concern- 
 ing, 632, 634, 643. 
 
 Monroe Doctrine: Germ of, 7o». 
 
 Montesquieu: Cited, vii; Inap- 
 plicability of theory of, con- 
 cerning small republics to 
 American States, 49-51; Jef- 
 ferson's refutation of, 5o« ; 
 Theory of, really favorable 
 to Union, 52; Admiration of, 
 for the Lycian Confederacy, 
 63; Cited as to separation of 
 governmental powers, 820; 
 Remarks of, concerning the 
 judiciary, 519. 
 
 Morris, Gouverneur, 344». 
 
 Mortmain, 651, 654, 661. 
 
 National Guard {see also Militia): 
 Decrease of local sentiment 
 in, l82», 185K. 
 
 National Politics: Influence of, 
 on State politics, 3K. 
 
 Nationality: Inherent in Amer- 
 ican people, XXV, 9; Impor- 
 tance of, I72». 
 
 Naturalization {see also Citizen; 
 People; Slave): Importance of 
 uniformity in rules of, 277 ; 
 Confusion concerning, in Ar- 
 ticles of Confederation, 278; 
 Provision for uniform rule 
 of, in Constitution, 279; Uni- 
 form rules of, 605^-, 724; Law 
 governing, 662 ; Proposed 
 amendment concerning, 689; 
 Uniform rules of, 710. 
 
 Navigation: Rivalry with Eu- 
 rope in, 18; Growth of Amer- 
 ican, 19; Of the lakes, 67. 
 
 Navigation Laws : Proposed 
 amendment concerning, 637, 
 649, 
 
 Navy: Practicability of creating 
 a federal, 66 ; General gov- 
 ernment will secure a na- 
 tional, 66 ; Will secure to 
 America a balance of power, 
 66; Commercial privileges 
 obtained by, 66; Advantages 
 of, 67, 68 ; A great national 
 object, 68 ; The Southern 
 States the nursery of wood, 
 
 Navy — Continued, 
 
 and the Northern of men, for 
 ships, 68, 69; Unlimited con- 
 trol of, by nation, 145 ; Un- 
 limited powers of Continental 
 Congress to raise, 146; Im- 
 portance of establishing, as 
 early as possible, 166; A ne- 
 cessity, if we are to be a com- 
 mercial people, 155; Possible 
 contingencies for, baffle polit- 
 ical arithmetic, 209; Necessity 
 for, 265; Power in the Federal 
 Constitution to create a, 266, 
 266,6o6c,724; States restricted 
 from keeping, 297 ; Presi- 
 dential command over, 496. 
 
 Necessary: Discussion of mean- 
 ing of, in General Clauses, 
 658-660, 668. 
 
 Necker, J. 76. 
 
 Negative on Bills: see Great 
 Britain; President; Veto. 
 
 Segio {see also Slaves): Can he be- 
 come a citizen ?, 709, 711, 715. 
 
 Negro Vote: Suppression of, in 
 South, 363K. 
 
 Netherlands : Government of, 
 119-123, 236; Foreign corrup- 
 tion of deputies of, 139; At- 
 tempt to reform vices of con- 
 stitution of, 236 ; An evil 
 attending the constitution of 
 the States-General, 503. 
 
 Neutrality: Price of American, 
 66; Only secured by power, 
 67; Experience of the United 
 States as to, from 1794 to 
 1812, 67«. 
 
 New England, 3I5«; Project of, 
 for separate confederacy, 6«; 
 States of, naturally linked 
 together, 80 ; Resistance of, 
 to embargo laws, I0I». 
 
 New Hampshire : i26k; Blending 
 of governmental powers in, 
 323 ; The size of senatorial 
 districts of, 382 ; Provision 
 concerning impeachment in, 
 441; Jury trial in, 562. 
 
 New Jersey, I27» ; Commercial 
 tribute of, to New York, 87; 
 Reason for Federalism of, 
 38«; Too feeble to remain in- 
 dependent of the Eastern 
 
772 
 
 INDEX. 
 
 New JerBey — Continued. 
 
 Confederacy, 80; Proposition 
 of, that nation shall control 
 commerce, 239; Blending of 
 governmental powers in, 324; 
 Concerning impeachments in, 
 441 ; Executive and council 
 in, 468; Jury trial in, 661. 
 
 Newport : Takes tribute from 
 Connecticut, 38«. 
 
 Newspapers (see also Press, 
 Liberty of): Taxation of, in 
 Great Britain, 578. 
 
 New York State : I27«, 284», 
 364», 459 ; Discriminating 
 taxation in, viii ; Anti-Fed- 
 eralist party in, xx; Limita- 
 tions on its delegates to the 
 Federal Convention, xx; Ma- 
 jority of its delegates with- 
 draw from Federal Conven- 
 tion, XX ; Election for mem- 
 bers to the State Convention 
 of, XXV ; The majority in, Anti- 
 Federalist, xxvi ; Threat to 
 divide, xxvi; Rich imposts of, 
 xxvi ; Why Anti-Federalist, 
 xxvi; Forced to ratify Con- 
 stitution, xxvii; The Clinton 
 party in, 3«; Her controversy 
 with the district of Vermont, 
 36 ; Commercial advantages 
 of, make other States tribu- 
 tary, 37; Reason for ratifying 
 Constitution, 38« ; Reason 
 for Anti- Federalism of, 38«; 
 Would probably join Eastern 
 Confederacy, 80 ; Difference 
 of counties in taxable value, 
 128; Exposed position of, 156; 
 Silence of constitution of, 
 concerning standing armies, 
 165 ; Alleged excellence of 
 her constitution, 165 ; Juris- 
 diction over Vermont, 175; 
 A peculiar sufferer from re- 
 straints on imposts, 815; 
 Representation of land- 
 holders in, 217 ; First urges 
 appointment of Convention, 
 269 : Peculiar vulnerability 
 of, 266; Experienceof, as to 
 National fortifications, 266«; 
 Blending of governmental 
 powers in, 824 ; Number of 
 
 New York State — Continued. 
 representatives in the more 
 numerous branch of legis- 
 lature of, 367; Size of sena- 
 torial districts of, compared 
 with that of the districts 
 proposed by the Convention, 
 382; Constitution of, makes 
 no provision concerning the 
 locality of elections, 405 ; 
 Election system in, 405, 407; 
 Impeachment system in, 441; 
 Powers of President com- 
 pared with powers of Gov- 
 ernor of, 447, 457-465 ; Pro- 
 vision concerning the unity 
 of executive of, 468 ; Evil of 
 executive council in, 472 ; 
 Unity of executive, a distin- 
 guishing feature of constitu- 
 tion of, 475; Veto system in, 
 494; System of appointments 
 in, 513; Age limit on judici- 
 ary, 529; Technical meaning 
 given to appellate in, 646; 
 Higher courts of, possess 
 jurisdiction of both fact and 
 law, 547; System of collecting 
 taxes in, 669; Judicial system 
 of, resembles Great Britain, 
 561; Proposed transference of 
 jury system of, to National 
 Government, *567; Possibility 
 of amending jury system of, 
 568; No Bill of Rights in con- 
 stitution of, 570, 573; Liberty 
 of the press not protected by, 
 574; Constitution of, embodies 
 most of the alleged defects of 
 new constitution, 581. 
 
 New York City: 284», 366», 382; 
 Strongly Federal, xxvi; Anti- 
 Federalists driven from polls 
 in, xxvi; Threat to separate 
 from rest of State, xxvi, 38«; 
 Rich imposts of, xxvi. 
 
 New York ConTention; Anti-Fed- 
 eralist majority in, xxv ; 
 Manoeuvring in, xxvi. 
 
 Nobility : Prohibition of titles 
 of, 248, 294, 297, 570, 6o8f, 
 725 ; Not to be granted by 
 the States, doic, 726 ; Oflice- 
 holders shall not accept, 633, 
 634- 
 
INDEX. 
 
 Ill 
 
 Nominating System : Develop- 
 ment of, I4«; Origination of, 
 329«. 
 
 north Carolina: I26», 284«; Re- 
 volt of a part of, 32; Restraint 
 on legislative authority in, 
 162, 164, 165; Delays in adopt- 
 ing Constitution, 294K; Blend- 
 ing of governmental powers 
 in, 326; Jury trial in, 562. 
 
 Northern Confederacy: New Eng- 
 land project for, 6»; States 
 probably composing, 80. 
 
 Northern States: Most formida- 
 ble in strength, 25; Friendli- 
 ness of Russia to, during 
 Civil War, 26« ; Seamen 
 chiefly drawn from, 69; Nul- 
 lification of Fugitive Slave 
 Law by, ioi» ; Object to 
 Louisiana purchase, 285«. 
 
 Northwest Ordinance : see Ordi- 
 nance of 1787. 
 
 Nullification: Of National laws 
 and measures, ioi« ; South 
 Carolinian, 129K; Of income- 
 tax by East, 129;? ; S. C. 
 Ordinance of, 6go; Jackson's 
 proclamation concerning, 692; 
 Alleged constitutionality of, 
 692, 693 ; Logical result of, 
 694; In effect, a State veto on 
 National law, 695-697 ; In- 
 compatible with Union, 696; 
 Impossibility of nation sub- 
 mitting to, 703 ; Introduces 
 rule by minority, 704. 
 
 Kama: 237. 
 
 Oath (see also Allegiance'): Why 
 State officials should take, to 
 support Constitution, 302 ; 
 Probable disregard by State 
 officials of National, 314; Of 
 the President, 613^, 728; Of 
 the public officers, 6201:, 732; 
 Proposed amendment con- 
 cerning, 645; Proposed S. C, 
 to oppose National acts, 
 691. 
 
 Office: Seeking of, by "best 
 men," I4« ; Fixed term of, 
 230, 230«, 23i«; Influence 
 of term of, 479 ; Produces 
 non-elastic element, 479». 
 
 Office- holder) (see Civil Service): 
 Tendency of, to become proxy 
 rather than trustee, i5k; Pe- 
 culiar deference of, toward 
 instituted authority, 141; Rel- 
 ative smallness of number 
 of Federal, over State, 307; 
 Natural endeavor to increase 
 their own prerogatives, 344«; 
 Supposed senatorial predilec- 
 tion for, 443; Excluded from 
 Electoral College, 464; Will 
 not be able to influence choice 
 of President, 464 ; Dreaded 
 multiplication of, under new 
 government, 678 ; Proposed 
 amendment concerning limi- 
 tation on foreign titles and 
 offices of, 633, 634; Proposed 
 amendment concerning mem- 
 bers of Congress becoming, 
 637,644,648; Proposed amend- 
 ment compelling, to be citi- 
 zens, 643, 689. 
 
 Olmstead Case: State resistance 
 in, ioi«. 
 
 Opportunism: Importance of 
 utilizing, 429. 
 
 Ordinance of 1787: Guaranty of 
 republican government by, 
 I25«; Congress exceeded its 
 powers in passing, 244; An 
 act of incorporation by the 
 government, 668. 
 
 Paper Money (see also Bills of 
 Credit; Greenbacks; Legal 
 Tender): Misuse of power to 
 create, ix; Great loss to 
 America through, 296; Dis- 
 honesty of, 296; Continental 
 power secured by, in Revo- 
 lution, 311; Maryland's refu- 
 sal to issue, 424; Proposed 
 amendment concerning, 651; 
 Can it be made a legal ten- 
 der? 736. 
 
 Pardon: Presidential power of, 
 459, 497; In Great Britain, 
 459; Importance of , in check- 
 ing insurrection and rebel- 
 lion, 498; If lodged in legis- 
 lature, will always be dila- 
 tory, 498 ; Best lodged in 
 hands of single official, 498; 
 
774 
 
 TNDEX. 
 
 Paidon — Continued. 
 
 Advantage of prompt action 
 in, 499; President may grant, 
 613^, 728 ; Proposed amend- 
 ment concerning, 644. 
 
 Parliament: Corruption of, 265; 
 Royal power over, 461, 462. 
 
 FartiBanship: Introduction of, 
 in civil service, 512K. 
 
 Party Feeling: Misfortune of, 
 228. 
 
 Patents: Povirer of Congress to 
 protect, 280,281; To be grant- 
 ed to inventors, 6o5f, 724. 
 
 Peace: Paradox of perpetual, 
 29; True interest of all na- 
 tions, 30. 
 
 Peace Conference: Amendments 
 to Constitution proposed by, 
 718-720. 
 
 Pennsylvania, i27», 382; The 
 ultra - democratic party in, 
 3«; Disturbances in, over 
 Wyoming, 33, 35; A probable 
 member of Northern Confed- 
 eracy, 80 ; Resistance of, to 
 excise lavps, ioi»; Action of 
 Governor of, in Olmstead 
 case, ioib; Clause in Bill of 
 Rights dealing with armies, 
 160; Restraint on legislative 
 authority in, 162, 164, 165; 
 Blending of governmental 
 powers in, 324; Encroach- 
 ment of legislative power 
 in, 332, 340; Number of rep- 
 resentatives in the more 
 numerous branch in legis- 
 lature of, 367; Provision con- 
 cerning impeachments in, 441 ; 
 Proposition from the mi- 
 nority of Convention of, 523, 
 568, 567; Jury trial in, 562 
 
 Pensions: Inexpediency of, in 
 republics, 530. 
 
 People (see also American Peo- 
 ple): Government eventually 
 conforms to, vii; Rights of, 
 a specious plea of dema- 
 gogues, 4; Safety of, the 
 chief cause of instituting 
 government, 12; Seldom per- 
 severe in erroneous opin- 
 ions, 12; Vet remote from 
 perfect virtue, 82; Modern 
 
 People — Continued. 
 
 representation of, 48; Con- 
 trolling influe'nce of, in repub- 
 lics, 196; Impious doctrine 
 that they were made for 
 kings, 304; The good of, the 
 supreme object of govern- 
 ment, 304; An instable gov- 
 ernment loses attachment of, 
 416; Representation of, in 
 ancient republics, 421; Com- 
 monly intend the public 
 good, 476; Liability to error, 
 476, 477; Executive should 
 be complaisant to, 477; 
 Legislative power fancy they 
 are the, 478; Right of, to 
 abolish and form govern- 
 ments, 712. 
 
 Pericles: His personal motives 
 injurious to his country, 28. 
 
 Personal liberty Laws: Recom- 
 mendation to Northern States 
 to repeal, 718. 
 
 Personal Property Tax (see also 
 Taxation): Too invisible, 75; 
 Difficulty of collecting, 78 ; 
 Only politic in cities, 78. 
 
 Petition: Right of, 622^:, 725. 
 
 Phidias, 28. 
 
 Philadelphia, 382. 
 
 Fhocians: Unrulv conduct of, 
 111. 
 
 Pickering, Judge, 529». 
 
 Piracy: Congress to prescribe 
 punishment for, 6o5<r, 724. 
 
 Pitt, William: His bill to regu- 
 late trade relations, I32«. 
 
 Poland: Her government, 118, 
 246; An example of a govern- 
 ment over local sovereigns, 
 118 ; An evil of the Polish 
 Diet, 503. 
 
 Politics: Absurd to make prose- 
 lytes by force, 4; Science of, 
 greatly improved in modern 
 times, 48. 
 
 Poll Tax: see Capitation Tax. 
 
 Pompadour, Madame de, 29. 
 
 Popular Assemblies: Difficulty of 
 securing harmony in, 95; 
 Distrust of people of, 164. 
 
 Population (see also Direct Taxes; 
 Slave Representation) : As a 
 basis for taxation, 127. 
 
INDEX. 
 
 775 
 
 Portugal, 13. 
 
 Fosse Comitatus: No provision 
 in Constitution concerning, 
 181. 
 
 Post Offices and post roads, es- 
 tablishing of, 6o5f, 724. 
 
 Post Boads [see also Public Roads; 
 Roads) : Harmless national 
 power over, 279, 28i». 
 
 Power {see also Departments of 
 Power): Difficulty of appor- 
 tionment between privilege 
 and, 162; Always the rival 
 of power, 177; Definition of, 
 202; Always involves possi- 
 ble abuses, 260, 261; A 
 maxim that the greater the, 
 the shorter the duration, 853; 
 Proposed amendment con- 
 cerning reserved, 632, 633, 
 634. 637, 638, 639, 650, 651, 
 657, 679, 680, 702, 713; Gov- 
 ernmental, implied as well as 
 expressed, 657; A third form 
 of, is resulting, 657. 
 
 Presents from foreign powers 
 to public officers prohibited, 
 toic, 725. 
 
 President (see also Appointment; 
 Executive, U. S. ; Pardon ; 
 Treaties ; Veto) : System of 
 electing, xii; War powers of, 
 XV ; Defective system of 
 choosing, xvi; Encroachment 
 upon appointment of, by 
 Congress, xvi; Elected by 
 people, xvii, 700; Dispropor- 
 tioned popularity of, xvii ; 
 Safety of popular choice of, 
 xvii; Has not endeavored to 
 perpetuate himself in office, 
 xvii ; Assumption of new 
 powers, xvii ; Congressional 
 interference in election of, 
 328» ; Congressional inter- 
 ference in power of appoint- 
 ment, 329K ; Congressional 
 endeavor to neutralize veto 
 power of, 329»; Unlikelihood 
 that he will corrupt House 
 of Representatives, 370; Gen- 
 eral survey of, 447-517; Ex- 
 aggeration of the authority 
 vested in him, 447; Appoint- 
 ing power of, 449,463, 605; 
 
 President — Continued. 
 
 Cannot appoint senators, 449; 
 System ot appointing, 461 ; 
 Non-criticism of mode of ap- 
 pointing, 451; Defect of sys- 
 tem of appointment, 45i«, 
 452k; a selective choice of, 
 established, 452; Election of, 
 guarded from intrigue and 
 corruption, 463; Office-hold- 
 ers cannot participate in elec- 
 tion of, 464 ; Necessity that 
 he shall be independent of 
 all but people, 454; System of 
 appointment secures man of 
 merit, 465; Election of, by 
 House of Representatives 
 when Electoral College does 
 not give clear majority, 456; 
 System of single, 457; Term 
 of office, 457, 476, 479; Com- 
 pared with king of England, 
 467-465; Compared with gov- 
 ernor of New York, 457-468 ; 
 Re-eligibility of, 457,481; His 
 qualified negative on bills, 
 468, 489; Liable to impeach- 
 ment, 468 ; Commander of 
 national forces, 459; Power 
 of pardon, 459, 497 ; Recom- 
 mendations to Congress, 459; 
 Power to convene and ad- 
 journ Congress, 469 ; Com- 
 mand of militia, 459; Treaty 
 power of, 461 ; To receive 
 ambassadors, 463, 516; Means 
 of giving energy to, 467; 
 Objections to a plural Exec- 
 utive, 468-475; The term 
 of four years defended, 478- 
 480; Should be responsive to 
 people, but not to legislature, 
 477 ; His re-eligibility de- 
 fended, 481-487; Danger of 
 instability in the system of 
 administration, 481, 486; Fre- 
 quent changes in, will prod- 
 uce changes of office-holders, 
 482; Term of, in Confederate 
 States, 482»; Growth of anti- 
 third term idea, 482K ; Re- 
 eligibility as a bribe to good 
 conduct, 483 ; Danger from 
 ex-Presidents, 484, 485; Seri- 
 ous danger involved in limi- 
 
7;6' 
 
 INDEX. 
 
 President — Continued. 
 
 tation on the re-election of, 
 486 ; Evil of necessitating a 
 change in, 486; Exclusion of 
 popular President a first step 
 to force, 487; Salary of, must 
 not be at discretion of legis- 
 lature, 488; Constitutional 
 clause relating to salary, 489; 
 An additional security against 
 the enacting of improper 
 laws, 490, 491 ; War powers 
 of, 496»; Command over Na- 
 tional forces, 496; His power 
 of requiring the opinions in 
 writing of the heads of the 
 executive departments, 496; 
 Objection to share in treaty- 
 making power of, 499; Trea- 
 ties should not be trusted 
 solely to, 501 ; Will always 
 be a respectable man, 506; 
 Argument that he should 
 have sole power of filling 
 offices, 507; Secures legisla- 
 tion by gifts of offices, 507, 
 609 ; Unlikelihood that his 
 nominations will be over- 
 ruled, 508; Possible favorit- 
 ism in appointments, 508, 
 509; The Senate a check on 
 removals by, 511; Appoint- 
 ment power gives him undue 
 influence over Senate, 512; 
 Remaining powers of, 816; 
 Power to give information to 
 Congress, 516; Power to con- 
 vene Congress, 516; Consti- 
 tutional clauses relating to, 
 tooc, bole, 6i2c, 613c, 6141:, 
 626c- ; Proposed amendment 
 concerning limited term of, 
 638, 644, 649; Proposed 
 amendment concerning com- 
 mand of national forces by, 
 644 ; The veto his shield 
 against Congress, 654; Pro- 
 posed amendment concerning 
 re-eligibility of, 689 ; State 
 alternation of : Proposed 
 amendment concerning, 689; 
 System of electing, 700; 
 Term of six years for Confed- 
 erate, 727; Not re-eligible, 
 727; Of the Confederate Con- 
 
 Fresident — Continued. 
 
 stitution, 727-729; Must have 
 been fourteen years a citizen, 
 728. 
 Press, Liberty of : Not guaran- 
 teed in Constitution of New 
 York, 574 ; Impossibility of 
 definition of, 674 ; Amend- 
 ment concerning, 574»; The 
 sedition law in relation to, 
 574«; In the Civil War, 574»; 
 In Great Britain, 575« ; Se- 
 cured, ii2ic, 725 ; Proposed 
 amendment concerning, 636, 
 641, 648. 
 Frevions Question : Congressional 
 
 adoption of, I42», 
 Primary : Influence of nominat- 
 ing, 14K. 
 Private Rights (see also Con- 
 tracts ; People): Abuse of, 
 causes of our heaviest mis- 
 fortunes, 86 ; Not protected 
 in pure democracy, 60; Amer- 
 ican innovations concerning, 
 87 ; Constitutional bulwark 
 to. 296, 570. 
 Privilege : Difficulty of appor- 
 tionment between power and, 
 162 ; Privileges and immuni- 
 ties of members of Congress, 
 taic, 722. 
 Privy Council: Control of, over 
 
 colonial courts, ix. 
 Prize Cases (see also Admiralty) : 
 Juries ineligible in, 563 ; 
 Method of trying, in Great 
 Britain, 564. 
 Property : Breaks society into 
 parties, 57; Basis of, for tax- 
 ation, 127; Representation of, 
 361 ; Representation of the 
 slave, 361, 363; Importance of 
 representation of wealth, 364; 
 Congress to provide for care 
 of public, 6igc, 731; Shall not 
 be taken for public use with- 
 out just compensation, 623c, 
 726 ; Confederate Congress 
 shall pass no law impairing 
 the right of, in slaves , 725 , 730. 
 Property, Real : Difficulty of 
 valuing, for purposes of rev- 
 enue, 130; System of taxation 
 of, 222. 
 
INDEX. 
 
 777 
 
 Protection {see also Duties ; 
 Tariff ; Taxation) : National 
 taxation permits, 214; S. C. 
 nullification of, 690. 
 
 FruBsia, 13. 
 
 Public Credit: Unrestricted pow- 
 ers of taxation necessary for, 
 191. 
 
 Public Debts: see Debts, Public. 
 
 Public Improvements: see Inter- 
 nal Improvements. 
 
 Public Lands (see also Territory, 
 Public ; Western Territory) : 
 A fruitful source of contro- 
 versy, 34-36; Influence of, on 
 national politics, 34; Dispute 
 among the States over, 34 ; 
 Difficulty over, in case of 
 separation of Union, 36; Ces- 
 sions of, to Union by States, 
 86; Importance of Union for 
 the creation of new States 
 from, 86; Treaty violations 
 concerning, 89. 
 
 Public Property: see Capital, Na- 
 tional; Ports, National; Pub- 
 lic Lands. 
 
 Public Boads (see also Post Roads; 
 Roads) : National encourage- 
 ment of, 280K. 
 
 Fublins : Signature of, to Fed- 
 eralist, xxii. 
 
 Punishments: Cruel and unusual, 
 prohibited, 6241:, 726. 
 
 Quorum: If more than a major- 
 ity required, unduly increases 
 influence of minority, 390 ; 
 Experience in Pennsylvania, 
 3go«; Experience in House of 
 Representatives in counting 
 of, 390» ; Tends to increase 
 secessions, 391 ; What shall 
 be a, toic, 722 ; Of States, 
 in choosing a President by 
 House of Representatives, 
 626^-, 727. 
 
 Quotas {see also Revenue; Taxa- 
 tion): Outline of, under Con- 
 federation, I26» ; Inequality 
 of, 129 ; Imbecility produced 
 by svstem of, 134; Union only 
 possible if abandoned, 146 ; 
 System of, under Confedera- 
 tion, 188, 189 ; As a system 
 
 Quotas — Continued. 
 
 to make up national deficien- 
 cies, 190; System of, enfeebles 
 Union, 190; System of ap- 
 portioning, under Confedera- 
 tion, 593, 694 ; Proposed 
 amendment concerning, 632- 
 634. 637, 642. 
 
 Railroads : Influence of National 
 Government on, 6»; Distinc- 
 tion between regulars and 
 militia in strikes on, I7i«; 
 National encouragement of, 
 28i»; Federal control over, 
 28in. 
 
 Satifioation: Clause concerning 
 constitutional, 292, 6201:, 621^-. 
 
 Rebellion {s^e Secession ; Shays' 
 Whiskey): Proposed amend- 
 ment concerning, 649. 
 
 Receipts and Expenditures : Ac- 
 counts of, to be published, 
 608c, 725. 
 
 Records : How to be authenti- 
 cated, 6i8(r, 730. 
 
 Regrating Laws: Unjust use of, 
 
 X. 
 
 Regulars, TJ. S. (see also Army, 
 U. S.) : Less liable to excite 
 local resistance than militia, 
 17IK. 
 
 Religion : A cause of partisan- 
 ship, 57; Attacks on aliens 
 usually a cloak of intolerance 
 in, i3gK ; No law to be made 
 prohibiting free exercise of, 
 621c, 725; No test as to, re- 
 quired, (r20c, 732 ; Proposed 
 amendment concerning, 633, 
 634, 636, 640, 646, 648. 
 
 Removal (see also Civil Service) : 
 Changes of President will 
 produce frequent, 482 ; The 
 Senate a check on Presi- 
 dential, 811; Alleged democ- 
 racy of, 5ii» ; Jefferson's, 
 511K; Early history of, 5i2« ; 
 Inauguration of partisan, 
 5i2»; Jackson's, 5i2«; Meth- 
 od as regards judiciary, 529; 
 Right of, 661. 
 
 Representation: European dis- 
 covery of, 83 ; Influence of 
 different interests in, 216, 
 
778 
 
 INDEX. 
 
 Bepresentation — Continued. 
 217; An absolute, altogethef 
 visionary, 216, 220 ; Imper- 
 fectly known to ancient 
 governments, 350; As devel- 
 oped in Great Britain, 350 
 Experience in Ireland, 351 
 In State governments, 3S2 
 Apportionment in relation to 
 direct taxes, 360; In relation 
 to Federal number, 361; In 
 relation to property, 361 ; 
 In relation to slaves, 361 ; 
 Partisan inaccuracy in, 
 365» ; Increase of, does 
 not necessarily increase se- 
 curity, 368 ; System of, in 
 State governments, 382; Will 
 chiefly lie between the landed 
 interests and the mercantile, 
 399; Constitutes the distinc- 
 tion between American and 
 ancient repuljlics,421; System 
 of, in ancient republics, 421, 
 422; Failureof ancient repub- 
 lics through want of, 422»; 
 No State shall be deprived of 
 equal, in Senate, 620^; Direct 
 taxation and : How appor- 
 tioned among the several 
 States, sgq^-, 6oo<r, 6291:, 688; 
 Among the several States 
 shall be according to their 
 respective numbers, 629c; 
 Proposed amendment con- 
 cerning, 632, 634, 637, 642, 
 648. 
 
 Bepreseatatives : Of p e o p 1 e , 
 changed character of, I5« ; 
 Advantages and disadvan- 
 tages of government by, 60; 
 Proportion of, 61 ; A large 
 electorate secures better, 61; 
 In republics, fancy they are 
 the people, 478, 489. 
 
 Bepresentatives, House of: Al- 
 leged smallness of, in rela- 
 tion to taxation, 216 ; Rep- 
 resentation of people in, 249; 
 Qualifications of the electors, 
 349 ; Qualifications of mem- ' 
 bers, 349, 378; Term of office, 
 350 ; Importance of experi- 
 ence to members of, 356 ; 
 Greater information required 
 
 Bepresentatives — Continued. 
 of, in National Government, 
 357; Advantage of experience 
 in members of, 359; Superior 
 influence of certain members 
 of, 359 ; Investigation of 
 elections of, 359 ; Election 
 disputes in, 360; Apportion- 
 ment of, with direct taxes, 
 360; Slave representation 
 in election of, 361; Proper 
 number of, 366; Inevitable 
 growth of, 368, 369; Possible 
 corruption of, 370; Compared 
 with Continental Congress, 
 370; Exclusion of members 
 of, from civil service, 371; 
 Too small to be properly 
 representative, 372; Extent 
 of information needed by, 
 372; Local knowledge pos- 
 sessed by members of, 872, 
 373; A safe and competent 
 guardian, 373; Charge that 
 it will be an oligarchy, 377; 
 Probable high character of 
 members of, 378; Restrained 
 by frequent elections, 379 ; 
 Will possess same interests 
 as its constituents, 379, 380; 
 Not limited to present size, 
 375; Will grow with progress 
 of population, 383 ; Growth 
 of representation as well 
 guarded as in State constitu- 
 tions, 383; The representative 
 of the people, 384; FourStates 
 will control a majority of, 
 384; Relatively greater power 
 of, as compared with Senate, 
 385; Check possessed by, on 
 Senate, 386 ; Disagreements 
 with Senate, 386«; Economy 
 of small, 389; Question as to 
 quorum, 390; Less likely 
 than local legislatures to be 
 partial to particular inter- 
 ests, 400, 401; Advantage of 
 uniformity in the time of 
 elections, 406, 407; One 
 cause of irresponsibility in, 
 4l8«; An overmatch for Sen- 
 ate, 442; Necessity for the 
 trusting of, 446; Should not be 
 associated ' in treaties, 500, 
 
INDEX. 
 
 779 
 
 Eepresentatives — Continued. 
 502 ; Proposition to siiare ap> 
 pointing power with Senate, 
 616 ; Constitutional clauses 
 concerning, 599-601C, 612c, 
 620c, 629c, 630^; Chosen by 
 people, 700; In Confederate 
 Constitution, 720-723. 
 
 Eeprieves : Granted by the 
 President, 6131:, 728. 
 
 Sepublican &overnment : Decried 
 because of ancient examples, 
 48, 82; Great modern im- 
 provements of, 49; Advan- 
 tage of enlargement of the 
 orbit of, 49; Answer to 
 Montesquieu's theory that it 
 must have a contracted ter- 
 ritory, 49; Guaranty of, by 
 nation, 125, 286-290; Would 
 not prevent States alter- 
 ing their constitutions, 126; 
 A necessity of America, 146; 
 Guaranty of, 248, 286 ; Pre- 
 supposes more good than bad 
 in man, 371; Elective object 
 of, 377; Security to, derived 
 from new constitution, 582. 
 
 Republics: Definition of,xliii,30, 
 60, 246; Usually overturned 
 by tyrants, 5; No less ad- 
 dicted to wars than mon- 
 archies, 30; Examples of an- 
 cient, as to war, 30; Genius 
 of, not pacific, 30, 31; Their 
 advantages, 60-63 ; Distinc- 
 tion from democracy, 60, 82; 
 Are small or large the more 
 advantageous ? 61, 82 ; Im- 
 aginary limit of territorial 
 sphere, 82; Natural limit of, 
 83 ; American development 
 of, 83; Tendency of the Fed- 
 eral principle to mdderation 
 in government, 112 ; Pecul- 
 iarly open to foreign corrup- 
 tion, I38»; Danger that offi- 
 cials of, will betray their 
 trusts, 139; Examples of for- 
 eign corruption in, 139; Can- 
 not be governed solely by 
 force of law, 174; Revolution 
 the scourge of petty, 176 ; 
 Strength always on the side 
 of the people in, 196; What 
 
 Bepublics — Continued. 
 
 constitutes, 246 ; Holland er- 
 roneously asserted to be a, 
 246; Venice mistermed a, 
 246; Poland possessed no 
 resemblance to, 246; Great 
 Britain a slight approxima- 
 tion to, 246 ; Governments 
 which derive their powers 
 directly or indirectly from the 
 people, 246; In United States, 
 246; Representation the fun- 
 damental principle of, 380; 
 Definition of compound, 410; 
 Officers of, not necessarily 
 faithful trustees, 412; Ruled 
 by the deliberate sense of 
 the community, 476; Checks 
 upon transient impulses in, 
 476, 477; Inexpediency of 
 pensions in, 530; Prohibition 
 of titles of nobility the cor- 
 ner-stone of, 572. 
 
 Bepublics, Ancient: Distraction 
 in, 44, 47, 48, 82 ; Vibrated 
 between tyranny and anar- 
 chy, 47, 48; Outline of, 108- 
 114; Influence of single men 
 in, 389 ; All long-lived, pos- 
 sessed senate, 420; Represen- 
 tation in, 421. 
 
 Requisitions under Confederation: 
 see Quotas. 
 
 Resolutions, Virginia and Ken- 
 tucky, 3I5«, 679, 684. 
 
 Revenue: No nation can exist 
 without, 78; Payments of 
 Federal, under Confedera- 
 tion, I26«; Desire for, will 
 prevent excessive taxation, 
 130; Nation must possess 
 full powers of raising, 146, 
 147; Bills to originate in the 
 House of Representatives, 
 boic, 723 ; Final causes for 
 raising, 674. 
 
 Revolution: The scourge of petty 
 republics, 176; Right of, 176, 
 177. 
 
 Revolution, American: Govern- 
 ments during, ix; Excessive 
 influence of land - holding 
 classes in, ix; Undue power 
 ! of legislative branch during, 
 ' ix; French influence in,i38»; 
 
78o 
 
 INDEX. 
 
 Bevolution — Continued. 
 
 Fortunate exercise of right 
 of self-government in, 858; 
 Importance of Continental 
 Government in, 311; Nature 
 of the, 316. 
 
 Bhode Island, i26», 255; Reason 
 for Anti-Federalism of, 38»; 
 Iniquitous legislation of, 40«, 
 417; Connecticut's retaliation 
 on, 40; Perverseness of, Z56« ; 
 Delay in adopting Constitu- 
 tion, 294«; Proposition to dis- 
 member, 2g4»; Maintains roy- 
 al charter as constitution, 324; 
 Factious spirit in, will work 
 its own cure, 347 ; Provision in 
 her constitution concerning 
 elections, 854; Number of rep- 
 resentatives in the more nu- 
 merous branch of her legisla- 
 ture, 367; Result of short term 
 in, 417. 
 
 Bights: see Private Rights, 
 
 Bights of Man: see Man; People. 
 
 Biver and Harbor Bill: History 
 of National, 28i». 
 
 BoadB (see also Post Roads', Pub- 
 lic Roads): Improvements in, 
 if country is united, 85, 
 
 Borne, 30, 31, 420 ; Conquests 
 made by, in the character of 
 allies, 26; Case of divided sov- 
 ereignty in, 207; Military suc- 
 cess of, 263; Senate of, 420; 
 The tribunes of, 421, 425; Re- 
 sort to dictatorship in, 466; 
 Plural executive of, 468; Evils 
 arising from her having plural 
 consuls and tribunes, 468 ; 
 Danger from decemvirs, 474. 
 
 Bomulus, 237. 
 
 Bussia, 26», 
 
 Batherforth'a Institutes, 577. 
 
 St. Lawrence; American exclu- 
 sion from, 19. 
 
 Samians: Capture of the cify of, 
 28. 
 
 Saxony: Forced to join German 
 Empire, 99». 
 
 Soipio, 31. 
 
 Scotland: Clanship in, 107, 
 
 Searches and Seizures: Security 
 against, 622ir, 726. 
 
 Secession : Of southern New 
 York, xxvi; 26« ; Jefferson's 
 views on, 6«; Logical result 
 of, 6« ; Threats of, 6» ; Lin- 
 coln's view of, 23«; Right of 
 a party to revoke a compact, 
 91, 143; Popular attitude 
 towards Confederate, I7i«; 
 Creation of West Virginia as 
 a result of, 284»; Of States 
 from Confederation, 292, 293; 
 Of South Carolina, 293«; Of 
 Southern States, 293»; S. C. 
 threat of, 692; Not a consti- 
 tutional right, 700; A breach 
 of contract, 701; A right of 
 revolution, 701; Readjust- 
 ment impossible if carried 
 out, 703; S. C. ordinance of, 
 711. 
 
 Sectional Controversy: Project 
 of separate confederacies in 
 connection with, 6«; Local 
 spirit in, 3i3«. 
 
 Sectional Interests: Distinctions 
 in Union no greater than in 
 each state, 6» ; Influence of, 
 6» ; As to public debt, 38 ; 
 Attitude towards tariff, 38»; 
 Interference of, in elections, 
 364; Lincoln the expression 
 of, 715. 
 
 Sedition: National Government 
 better able to cope with, 171. 
 
 Sedition Law: Unconstitutional- 
 ity of, 680, 685. 
 
 Senate: Influence of new States 
 in, xvi; Effect of indirect 
 delegation of, xvi; Tendency 
 to extravagance in, xvi; Pe- 
 culiar merit of, 170; Less apt 
 to be tainted by faction, 170; 
 Develppment of basis of rep- 
 resentation in, 234»; Rep- 
 resentation of States in, 
 249; Equality of suffrage 
 shall not be amended in, 291; 
 A palladium of the residuary 
 State sovereignty, 291; Un- 
 likelihood that it will corrupt 
 House of Representatives, 
 370; Fear of adverse coalition 
 in, to will of people, 885; The 
 weaker of the two branches, 
 385; Unlikelihood that it will 
 
INDEX. 
 
 781 
 
 Senate — Continued, 
 
 oppose increased representa- 
 tion, 386; Check possessed 
 by House of Representatives 
 on, 386; Disagreements with 
 House of Representatives, 
 386«; Quotation from Bryce 
 concerning, 387K; Possibility 
 of States declining the ap- 
 pointment of, 394; Term of 
 office makes laches by the 
 States unimportant and inef- 
 fective, 895; Certain to check 
 undue interference in elec- 
 tions, 398, 399; Qualifications 
 for, 408; System of appoint- 
 ment, 409; Equality of repre- 
 sentation in, 409 ; A com- 
 promise between large and 
 small States, 409; A prey to 
 vested interests, 4og»; A con- 
 stitutional recognition of re- 
 siduary State sovereignty, 
 410; Results of equal repre- 
 sentation in, 4io«; A check 
 on hasty legislation, 411; The 
 check of, will sometimes be 
 injurious, 411; Number of 
 members of, 412; Advantage 
 by furnishing a dual body, 
 412; Superior knowledge due 
 to length of service, 413; Ad- 
 vantage possessed by length 
 of term, 413, 414; Will pos- 
 sess more sense of a nationa' 
 character, 416, 417 ; Will be 
 attentive to judgment of other 
 nations, 417 ; A defense to 
 the people against their own 
 errors and illusions, 419; En- 
 during republics possessed, 
 420; Not likely to become a 
 tyrannical aristocracy, 423 ; 
 Impossibility that it can cor- 
 rupt all other branches of 
 government, 423; Compared 
 with Senate of Maryland, 
 424; Weakness of, as a dele- 
 gated body, 426; Treaty-mak- 
 ing power of, 426; Provision 
 for the biennial succession of 
 one third of new senators, 
 428; Viewed as a court of im- 
 peachment, 433-446; Im- 
 peachment power of, 433,436; 
 
 Senate — Continued, 
 
 Proposition to unite Supreme 
 Court with, in impeachments, 
 437 ; No .objection that im- 
 peachment power is judicial, 
 440 ; Too great powers of, 
 441; Overmatched by House 
 of Representatives, 442; Pre- 
 judices in favor of office- 
 holders unfits it for impeach- 
 ment, 443; Share of, in ap- 
 pointments, 444; "Courtesy" 
 
 ' in,444«; Impossible that two 
 thirds will be corrupt, 446; 
 Its own judge in impeach- 
 ment cases arising from 
 treaties, 446; Power of filling 
 vacancies in, 449; Should not 
 have sole power to form 
 treaties, 601 ; Objection to 
 two thirds of, ratifying trea- 
 ties, 503; Evil of requiring 
 majority of total number, 604 ; 
 Objection that it should not 
 be concerned in appoint- 
 ments, 507, 508; Unlikelihood 
 that it will reject Presidential 
 nominations, 508; Why join- 
 ed with President in appoint- 
 ments, 508; A proper check 
 on Presidential favoritism in 
 appointments, 608, 509; Pos- 
 sibility that the President 
 can corrupt, by offices, 509; 
 Excluded from offices, 610 ; 
 A check on Presidential re- 
 movals, 511 ; Appointment 
 power gives President undue 
 influence over, 512; A special 
 reason for lodging impeach- 
 ment with, 643 ; Constitu- 
 tional clauses concerning, 
 5g9f-6oicr, 613^, i)i\c, 620c, 
 630c ; Shall not try impeach- 
 ments: Proposed amendment 
 concerning, 639, 644; In Con- 
 federate Constitution, 721- 
 
 723, 727- 
 Shays' Bebellion, x, xi, 29, 33; 
 Causes of, 29 ; Failure of 
 Confederation to quell, 125; 
 Conduct of Massachusetts 
 regarding, 160, 175; Need of 
 National aid in quelling, 
 288. 
 
782 
 
 INDEX. 
 
 Ship-building: The wood of the 
 Southern States preferable 
 for, 68. 
 
 Slave Law, Fugitive : Nullified 
 in Northern States, ioi», 714; 
 Under Missouri Compromise, 
 689; Declaration in favor of 
 such laws as, 718. 
 
 Slave States: Project for South- 
 ern Confederacy, 6«. 
 
 Slave Trade: Limit of prohibi- 
 tion of, 273; Clause in Con- 
 stitution result of compro-- 
 mise, 273»; A deal between 
 the navigating and Southern 
 States concerning, 273«, 274^; 
 A barbarous traffic, 274 ; 
 America leads the way in the 
 abolition of, 274; Unfair con- 
 structions given to constitu- 
 tional clause concerning, 274; 
 Laws for suppression of, 
 should be made effectual, 718, 
 720; Forbidden in Confeder- 
 ate Constitution, 725. 
 
 Slavery: Profit of, to breeding 
 States, 274«; Selfish action of 
 States concerning, 274»; Un- 
 der Missouri Co^npromise, 
 6S9; Geographical limitation 
 to extension of, 689, 716 ; 
 Recognition of, south of 36° 
 30, 689, 716. 718; Shall not be 
 interfered with by Congress, 
 716, 719; Each new State to 
 decide upon, 716, 719; In Dis- 
 trict of Columbia, 716; Pro- 
 posed amendments concern- 
 ing not to be alterable, 717, 
 720. 
 
 Slaves {see also Federal Number)'. 
 In relation to minority rights, 
 xiii; Representation, xxxvii, 
 861, 688; The importation of 
 them after the year 1808 pro- 
 hibited, 273; Especial danger 
 of, to domestic peace from, 
 290; Defence of the provision 
 of the Constitution combining 
 them with free citizens as a 
 ratio of taxation, 360-366; 
 Considered as property, 361; 
 Possess the mixed character 
 of persons and property, 361; 
 Representation of, a compro- 
 
 Slaves — Continued. 
 
 mise, 363; Admission to citi- 
 zenship, 363; Value of, as a 
 representation of property, 
 364 ; Can they become citi- 
 zens ? 709, 715 ; Right of prop- 
 erty in, recognized by Consti- 
 tution, 714; Transportation 
 of, not to be hindered, 717, 
 719 ; No law to impair the 
 right of property in, 725. 
 
 Smuggling: Exorbitant duties 
 produce, 214. 
 
 Society (see also Citizens; Faction; 
 Human Nature ; Majority ; 
 Man; Minority; Naturaliza- 
 tion ; People) : Inseparable 
 maladies of, 174; Necessity 
 of guarding minority from 
 majority, 346. 
 
 Socrates, 368. 
 
 Solon, 421. 
 
 South American BepublicB: Ineffi- 
 cacy of Bill of Rights in, 
 55K- 
 
 South Carolina, I26«; Attempted 
 nullification of National law 
 in, ioi« ; Troops embodied 
 by, ioi»; Army embodied by, 
 in 1832, 158K; Absolute juris- 
 diction of National Govern- 
 ment over forts in, 283«; 
 Notification to, that an attack 
 on Fort Sumter is an act of 
 war, 283« ; Convention of 
 1832, 3I5» ; Convention of 
 1861, 3i6»; Blending of gov- 
 ernmental powers in, 326 ; 
 Provision concerning elec- 
 tions in, 354 ; Number of 
 representatives in the more 
 numerous branch of legis- 
 lature of, 367 ; Provision con- 
 cerning impeachments, 441; 
 Jury trial in, 562 ; Ordinance 
 of Nullification, 690; Analysis 
 of Ordinance of Nullification, 
 696 ; Declaration of Inde- 
 pendence, 711 ; Ordinance of 
 Secession, 711. 
 
 Southern States : Danger to, from 
 " Northern Hive," 26; Naval 
 stores in, 68; Nullification of 
 revenue laws in, ioi« ; View 
 of, on slave representation. 
 
INDEX. 
 
 783 
 
 Southern iiz^Xi— Continued. 
 361 ; Suppression of negro 
 vote in, 363K. 
 
 Sovereign : How far United 
 States Government is, 708 
 736._ 
 
 Sovereignty : In relation to legal 
 tender, xiv; Impossible dual, 
 90; Under feudal system, 106, 
 107; Over sovereigns an im- 
 possibility, 123 ; Reserved 
 rights of, 198; Concurrent 
 jurisdiction involves division 
 of, 200; Case of divided, in 
 Roman republic, 207 ; Dif- 
 ficulty of marking line be- 
 tween State and General, 232; 
 An inherent qualify of, 545; 
 Nature of, 655; Division of, 
 in U. S., 656, 661; Powers of, 
 702; The punishment of trea- 
 son resides in, 702 ; States 
 have parted with essential 
 parts of, 702 ; The right to 
 make money, a, power of, 
 737. 
 
 Spain : 13, 32?: ; Experience 
 when divided, 26; American 
 feeling against, 7o»; Plottings 
 of, in West, 138«; Menace of 
 American colonies of, to U. 
 S., 153, 155, 156. 
 
 Spanish Main: Illicit trade with, 
 
 32». 
 
 Sparta, 30, 31, 420; Rivalry with 
 Athens, 110 ; The Ephori of, 
 421, 426. 
 
 Speculator : Unstable laws the 
 opportunity of, 415. 
 
 Speech, Freedom of, 62if, 725 ; 
 Proposed amendment con- 
 cerning, 636, 647. 
 
 Spirits (see also Excises) : Pos- 
 sible revenue from, 77. 
 
 Stadthelder : Power of Dutch, 
 120. 
 
 Standing Army : see Armies^ 
 Standing. 
 
 State Constitutions : How far re- 
 publican, 246, 247; Result of 
 leaving them supreme, 301; 
 Inevitable disagreement with 
 National constitution and 
 laws, 301; Great differences 
 among, 301, 302; Blending of 
 
 State Constitutions — Continued. 
 powers in, 323-326; Bear the 
 marks of haste and inexpe- 
 rience, 326; Growth of repre- 
 sentation under, 384; Courts 
 of last resort under, 539. 
 
 State Elections : System of, 404- 
 406. 
 
 State Governments : Oppression 
 by, viii, xi; Check on, by Na- 
 tional Government, viii ; Im- 
 portant and sovereign pow- 
 ers left to, 53; Defect in, 55K; 
 Natural rivals of General 
 Government, 108; Likelihood 
 that the National Govern- 
 ment will be better admin- 
 istered, 170 ; Protection of, 
 by nation, 175; Checked by 
 National Government, 177; 
 Advantage of, as a check on 
 National usurpations, 177; 
 Batteries against National 
 Government, I78« ; Orig- 
 inally invested with com- 
 plete sovereignty, 196 ; Dis- 
 position to encroacli on 
 National Government, 196 ; 
 Danger that they will sap 
 Union, 203; Improbability of 
 danger to, from National Gov- 
 ernment, 305 ; Advantages 
 of, as compared with National 
 Government, 306, 313 ; An 
 essential part of the National 
 government, 307, 312; Pow- 
 ers of, numerous and indefi- 
 nite, 309; Most important in 
 times of peace, 309 ; Predi- 
 lection of people for, 310, 
 311; Evil of local spirit in, 
 313 ; Legislative encroach- 
 ments by, 331; National Gov- 
 ernment no more ignorant 
 than, 576 ; In their proper 
 function sovereign, 656. 
 
 State law : Alteration of, by 
 laws of Union, 662. 
 
 State Legislatures : Contempt 
 of, X ; Seek outside pro- 
 tection, xi ; Why Senators 
 chosen by, xii ; Curtailment 
 of powers of, xii ; Distrust 
 of, 164; Jealous watchfulness 
 on National Government, 166; 
 
784 
 
 INDEX. 
 
 State LegislatnreB — Continued. 
 Peculiarly fitted to discover 
 National usurpations, 178; 
 Will unite to protect their 
 common liberty, 178; Pro- 
 tests against National Gov- 
 ernment, I78»; Adopted Ar- 
 ticles of Confederation, 292; 
 Not capable of declaring 
 secession, 293«; Will sound 
 the alarm to the people of 
 Federal usurpation, 300; Dan- 
 ger of leaving exclusive reg- 
 ulation of National elections 
 to, 892, 393; Federal courts 
 must control, 531; Occupa- 
 tion of, with National con- 
 cerns, 580; Possess power of 
 amending National Constitu- 
 tion, 587; Will be barriers 
 against encroachment of Na- 
 tional authority, 587. 
 
 State Officeholders: Probable dis- 
 regard of National oath by, 
 314. 
 
 State Folitica: Influence of Na- 
 tional on, 3». 
 
 State Rights: Difficulty of dis- 
 criminating from National, 
 232. 
 
 State Sovereignty {see also Sov- 
 ereignty): Impossible in Na- 
 tional union, 90; Destroyed 
 by a National compact, 91, 
 143; Cases of alienation of, 
 198; Attempt to reconcile Na- 
 tional with, 277; The Senate 
 a palladium of residuary, 
 291; Disproved by their own 
 action, 2g3«; The good of 
 the people sufficient reason 
 for sacrifice of, 304; No 
 genuine attempt to maintain, 
 3l6«; The Senate a recogni- 
 tion of residuary, 410; One 
 quality of, 546; Possible col- 
 lection of debts through U.S. 
 courts, 545, 646; Under Con- 
 federation, 591; Proposed 
 amendment concerning, 632- 
 634, 637. 639, 648, 650; Defi- 
 nition of, 656; Assertion of, 
 679; Jeopardized by Federal 
 acts, 682-684; Proposed in- 
 crease of, by Hartford Con- 
 
 State Sovereignty — Continued. 
 vention, 688; National coer- 
 cion and, 692; Surrender of, 
 to secure union, 695; Unlijn- 
 ited, an assertion that we are 
 not a nation, 700; Alleged 
 limited, 702 ; States do not 
 possess the essential parts 
 of, 702 ; Exercise of, 712 ; 
 Recognized by British treaty 
 of 1783, 712. 
 
 States, Citizens of: Not neces- 
 sarily citizens of U. S., 710. 
 
 States, Doubtful: Use of cam- 
 paign funds in, 364n. 
 
 States, Frontier: More likely to 
 be involved in disputes, 16; 
 Importance of union to, 85. 
 
 States, Individual: Powers 
 taken from, xii; Resistance 
 to National judiciary, xiv; 
 Coalition of small, xvi; In- 
 fluence of small, in Senate, 
 xvi; The thirteen, too great 
 for one government, 6; 
 Treaty difficulties arising 
 from thirteen sovereign, 14; 
 Selfish interests of, in rela- 
 tion to foreign treaties, 15; 
 Governments of, unable to 
 enforce regard of treaties, 15; 
 Result of thirteen sovereign, 
 21; Neutralizing of some, by 
 foreign powers, 21; Difiicul- 
 ties involved in any foreign 
 conflict, 21; Dangers of dis- 
 sensions among, 27, 92; Ab- 
 surdity of peace in disunited, 
 29; Vicinity constitutes them 
 natural enemies, 33; Induce- 
 ments to make war on each 
 other, 33; Territorial disputes 
 among, 34; Commercial jeal- 
 ousy among, 36; Jealousy of 
 New York of small, 37; Dif- 
 ferent views among, con- 
 cerning public debt, 88; Sub- 
 ject to same vicissitudes as 
 all nations, 41; War between, 
 peculiarly distressing, 41; 
 Standing armies will result 
 from disunion of, 48, 44; 
 Disunion of, will lead to 
 European despotism, 44 ; 
 Restraints on, imposed by 
 
INDEX. 
 
 785 
 
 states — Continued. 
 
 Federal Constitution, 55«; 
 Tendency to faction in, 63; 
 Importance of unrestrained 
 intercourse between, 69; Un- 
 likelihood of intimate inter- 
 course between, without Na- 
 tional unity, 70 ; Vain tax 
 laws of, 74; Ease of smug- 
 gling among, 78; Greater ex- 
 pense of, 79; Not too vast a 
 territory for a general gov- 
 ernment, 83; Not abolished 
 by proposed Constitution, 84; 
 A necessity to the General 
 Government, 84, 85; Impos- 
 sible to form National Gov- 
 ernment for, in their corpo- 
 rate capacity, 90; Distinction 
 between their corporate and 
 individual capacity, 90; Ob- 
 serve or disregard requisi- 
 tions of Congress at their 
 pleasure, 91; A simple alli- 
 ance between, more honest 
 than a pretended confedera- 
 tion, 92; Inevitable opposi- 
 tion of, to National Govern- 
 ment, 94; Natural centrifugal 
 tendencies in, 94; Will un- 
 dertake to judge Federal 
 measures, 94; Experience of 
 sovereign, under Confedera- 
 tion, 9S; Non-compliance of, 
 with requisitions, 98; A 
 power to coerce, necessary 
 for National Government, 97; 
 In every dispute with Na- 
 tional Government will prob- 
 ably seek foreign alliances, 
 98; Antagonism between, un- 
 der Confederation, 98 ; Dif- 
 ficult to coerce the larger, 
 99; Possible obstruction by, 
 of National law, 100; Distinc- 
 tion between non-compliance 
 and active resistance, 100- 
 102; Resistance of decrees of 
 Supreme Court, ioi»; Fail- 
 ures of attempts to nullify 
 National laws, ioik ; Difficulty 
 of interference with National 
 law, 102 ; National Govern- 
 ment will not absorb powers 
 of, 104; Likely to encroach on 
 
 States — Continued. 
 
 National Government, 104 ; 
 Unimportance of powers of, 
 104; Will possess greater de- 
 gree of influence over people, 
 105, 157; Dangerous rivals to 
 the power of the Union, 108; 
 Reserve powers of, 124 ; No 
 guaranty to governments of, 
 by Articles of Confederation, 
 124; Inordinate pride of, pre- 
 vents appeal to nation, 126; 
 Not protected against domes- 
 tic insurrection by Confed- 
 eration, 128 ; Conduct of, as 
 regards quotas, I26«; Differ- 
 ence in ability of, as to taxa- 
 tion, 128; Competition among, 
 for soldiers, 133; Attempts of, 
 todiscriminate against British 
 trade, 133; Clashing commer- 
 cial regulations of, 133; Dan- 
 gerous animosities among, 
 133; Unequal endeavors of, 
 to raise troops and money, 
 134; Equal suffrage among, a 
 defect of the Confederation, 
 134; Equality of suffrage de- 
 stroys fundamental principle 
 of republican government, 
 135 ; Majority of, contain a 
 minority of the people, 135; 
 Inevitable differences of su- 
 preme tribunals of, 140; Peace 
 of U.nion at the mercy of 
 each, 141 ; Bound to obey 
 Continental Congress in req- 
 uisitions for men and money, 
 146 ; Restraint upon, as to 
 military establishments, 152; 
 Should not be charged with 
 common defence, 156 ; Ex- 
 posed position of certain, 156; 
 Jealousy of military establish- 
 ments, 157; Prone to rival- 
 ship, 157; Debarred by Con- 
 federation from having navy 
 or army, 158 ; Raising of 
 troops by, contrary to Arti- 
 cles of Confederation, 160 ; 
 More liable than Union to 
 faction, 171; Governments of, 
 bound to enforce National 
 law, 173; Sophistry that the 
 National will destroy local 
 
786 
 
 INDEX. 
 
 States — Continued. 
 governments, 173 ; Difficulty 
 of checking usurpation in, 
 177; Failure to aid each other 
 against NationalGovernment, 
 I78« ; Should possess power 
 over internal taxes, 189, 212; 
 Limited powers of taxation 
 result in tutelage of National 
 Government to, 189; Systems 
 of requisitions upon, 190; 
 Requisitions upon, sure to 
 excite hostility against Na- 
 tional Government, 190 ; Ne- 
 cessity for revenue of, 195; 
 Must possess independent 
 means of revenue, 197; Only 
 prohibited from taxing im- 
 ports and exports, 197; Co- 
 equal authority with nation 
 over taxation, 199, 206, 212; 
 Debts of, for National pur- 
 poses, 2IIK ; Small need of 
 revenue for, 211, 224 ; Irreg- 
 ular and mutable legislation 
 of, 230 ; History of repre- 
 sentation of, in National Gov- 
 ernment, 234«; Disagreement 
 between large and small, 234; 
 Sectional and class differ- 
 ences in, 236 ; Dangerous 
 powers possessed by, 242, 
 243 ; Consolidation of the, 
 248; Each a sovereign body 
 in ratifying Constitution, 249; 
 Constitutional ratification by 
 the people acting in their cor- 
 porate capacity, 249; Repre- 
 sentation of, in Senate, 249; 
 Are National powers danger- 
 ous to jurisdiction of? 260; 
 Constitutional power to reg- 
 ulate intercourse among, 275; 
 National powers to regulate 
 commerce among, 275; Citi- 
 zenship among, 278; Guar- 
 anty of good faith between, 
 279; Treatment of loyalists 
 by, 279 ; Power of Congress 
 to admit new States into the 
 Union, 284 ; Guaranty from 
 division of, 284 ; Dispute over 
 division of, under Confedera- 
 tion, 284» ; Creation of West 
 Virginia, 284»; Possible ques- 
 
 Statea — Continued. 
 tion concerning lands of, 
 under treaty power, 285«; 
 Destruction of balance of, 
 285» ; Hamilton's proposed 
 division of, 286«; Constitu- 
 tional guaranty of republican 
 government to, 286; Protec- 
 tion from invasion or do- 
 mestic violence, 287; Pos- 
 sible National interference 
 with, 287, 288; Domestic in- 
 surrection in, may affect Na- 
 tional Government, 289; Pro- 
 vision of the Constitution, 
 concerning its ratification by 
 nine States, 292 ; Future re- 
 lations between ratifying and 
 non-ratifying, 293 ; Restric- 
 tive powers upon, 294; The 
 Federal Government partly 
 dependent upon, 802 ; Bal- 
 ance with nation well main- 
 tained, 305«; Advantage over 
 National Government in num- 
 ber of officials, 307, 308; De- 
 linquencyof, necessitates new 
 Constitution, 310; National 
 officeholders will feel pre- 
 possessions for, 313; Appeals 
 of, to other States, 315K; No 
 real attempt to create actual 
 sovereignty, 3i6« ; Advan- 
 tage of governments of, in 
 resisting National encroach- 
 ments 317, 346, 353; Con- 
 gressional electors not at the 
 mercy of, 349; Impossibility 
 of securing uniformity of 
 electors in, 349 ; Disagree- 
 ment of constitutions of, as 
 to elections, 364 ; Want of 
 influence over co-states, 364; 
 National Government not 
 dependent upon, 366 ; Pro- 
 visions of, concerning elec- 
 tions, 366-368; Variance as re- 
 gards ratio of representation, 
 867; Diversity of laws of, 373, 
 375; Provisions of, concern- 
 ing the size of electoral dis- 
 tricts, 382; Possible disagree- 
 ment between large and 
 small, as to representation, 
 384; As fair to presume 
 
INDEX. 
 
 78; 
 
 Statei — Continued. 
 
 abuses of power by the State 
 governments as by the Fed- 
 eral Government, 393 ; Un- 
 likelihood that they will 
 combine in non-appointment 
 of senators, 395 ; Exclusive 
 control of National elec^ 
 tions a possible danger, 395; 
 Possible disagreement of peo- 
 ple with, 895, 396; Share of, 
 in National Senate, 409; Un- 
 fortunate influence of, in 
 election of senators, 409« ; 
 Portion of sovereignty re- 
 maining in the, recognized 
 by the Constitution, 410 ; A 
 majority of, required for 
 National legislation, 411 ; 
 Treaty-making power will not 
 injure, 432; Provisions of the 
 constitutions of, concerning 
 impeachments, 441; NewYork 
 and New Jersey the only 
 States which have entrusted 
 the executive authority 
 wholly to single men, 468 ; 
 Executive Council in, 473 ; 
 Integrity of judiciary in, 524; 
 In controversies of, with na- 
 tion, Federal courts must be 
 arbiters, 531; Reserve powers 
 of, 532»; Intervention of Na- 
 tional courts between, 533, 
 537; Legal frauds passed by, 
 634 ; Danger of enforcing 
 public debts of, by Supreme 
 Court, 545; Difference be- 
 tween the limits of the jury 
 trial in the different, 661-563; 
 Saving to, by new govern- 
 ment, 680; Powerful individ- 
 uals in, enemies to a National 
 government, 588; Relation of, 
 to Confederation, 591 ; Full 
 faith between, 592 ; Equal 
 vote of, under Confederation, 
 592; Restrictions on, in Con- 
 federation, 592, 593 ; Consti- 
 tutional provisions concern- 
 ing, 6oo<r, toy, 6o8(r, 611c, 
 6i8f, 619^-, 620<:, 62IC, tide; 
 Equal judges with Federal 
 Government of National 
 powers, 679, 684 ; Cannot 
 
 States— Contin ued, 
 abrogate National law and 
 remain in Union, 694; Small 
 agency of, in National Gov- 
 ernment, 700; Possess no 
 power to punish treason, 702; 
 In Confederate Constitution, 
 726, 727. 730, 732. 
 
 States, New: Congressional 
 usurpation in creation of, 244; 
 Constitutional clause admit- 
 ting, 284; Lack of provision 
 in Articles of Confederation 
 concerning, 286; Obvious in- 
 terest of, as regards repre- 
 sentation, 386; Proposed 
 amendment concerning, 688; 
 Clause for admission of, into 
 Confederacy, 730. 
 
 Strict Constrnctionists (see also 
 Anti- Federalists ; State Sover- 
 eignty): Attitude of, towards 
 internal improvements, 28o«. 
 
 Sui&age: The fundamental arti- 
 cle of republican government, 
 349. 
 
 Supreme Court {see also Judiciary, 
 Federal): Process of, resisted 
 in Olmstead Case, ioi« ; In 
 Creek and Cherokee troubles, 
 ioi»; Regrettable action of, 
 as regards Electoral Com- 
 mission, 328«; Proposition to 
 give impeachment trials to, 
 435; Danger of trusting party 
 questions to, 436»; Proposi- 
 tion to unite Senate with, in 
 impeachment%437; Necessity 
 of, 689; Should it be a branch 
 of the legislature? 539; Will 
 be superior to the legislature, 
 539; Usurpations by, will be 
 remediless, 539; Original 
 jurisdiction of, 646, 646, 657; 
 Exact nature of appellate 
 jurisdiction of, 648; Will not 
 necessarily revise decisions 
 of juries as regards facts, 648; 
 In cases of concurrent Na- 
 tional and State jurisdiction, 
 548, 650-552; Does not abolish 
 trial by jury, 649, 666, 568; 
 Ultimate decision will rest 
 with, 653; Jurisdiction of, 
 divided into original and ap- 
 
;88 
 
 INDEX. 
 
 Supreme Court — Continued. 
 
 pe]late,S54; Proposed amend- 
 ment creating superior of, 
 645; Abstract of decision of: 
 In Marbury vs. Madison, 686; 
 In Dred Scott Case, 708; Na- 
 ture of duties of, 710; Share 
 of, in Electoral Commission, 
 733. 734 ; I" Third Legal- 
 tender Case, 736. 
 
 Sweden: Corruption in, the cause 
 of the sudden despotism of 
 Gustavus III., 140; Foreign 
 corruption of parties in, 140. 
 
 Swiss Confederacy: Defects of, 
 118; Held together by geo- 
 graphical position, 118; Mu- 
 tual protection in, 288. 
 
 Tamony: Quoted, 460. 
 
 Tariff, National {see also Duties; 
 Exports ; Protection ; Taxa- 
 tion') : Influence of, in secur- 
 ing ratification of Constitu- 
 tion, 38«; As a cause of sec- 
 tional ill-feeling, 38» ; At- 
 tempt of South Carolina to 
 nullify, 38«; Discontent of 
 Southern States with, 38« ; 
 Protective, not permitted by 
 Constitution, 690. 
 
 Taxation (_see also Capitation 
 Tax; Carriage Tax; Direct 
 Taxes; Duties; Excises; In- 
 come Tax; Indirect Taxes; In- 
 ternal Taxes; Land I^ax; Per- 
 sonal Property Tax; Poll Tax; 
 Quotas) : Discriminating use 
 of, viii; Succession, viii; In- 
 heritance, viii; Income, viii; 
 Destruction of ability to pay, 
 x; Temptation to apportion, 
 on minority ,68 ; Ability to pay, 
 proportioned to circulating 
 medium, 73; Commerce con- 
 tributes to ease of payment of, 
 73; Popular and unpopular, 
 74; Importance of Union to, 
 7S; On consumption largely 
 imperceptible, 75; Suggestion 
 of, on ardent spirits, 77; Pro- 
 posed basis of, 127; No gen- 
 eral rule for, 128; Inequality, 
 of, will produce eventual 
 destruction of Union, 128 ; 
 
 Taxation — Continued. 
 
 Unfair or sectional, will al- 
 ways produce disobedience 
 or evasion, 128, 129; Experi- 
 ence as regards the tariff of 
 1828-1832, I28«; On consump- 
 tion a self-levied tax, 129; 
 Experience of, as regards in- 
 come-tax of i894,i29«; System 
 of, in Turkish Empire, 188; 
 Dwindling of Confederation 
 due to want of power of, 
 188; Confederation intended 
 an unlimited power over, 188; 
 Distinction between internal 
 and external, 189, 212; Fed- 
 eral, should not be limited to 
 imposts, 189, 212; Inadequacy 
 of requisitions on the States, 
 190-192; Resources of,usually 
 equal to necessities of, 190; 
 Complete power of, allows na- 
 tion to borrow, 192; National 
 Government must possess 
 general power of, 194; Limi- 
 tations on State power of, 
 197; Danger of so vesting 
 the power denied, 197; With 
 exceptions, a concurrent 
 power of U. S. and States, 
 199; Dual, only a question of 
 expediency, 200; Limitations 
 on, result in defective tax 
 systems, 211, 213; Result of 
 limiting National Govern- 
 ment to duties, 213; Ex- 
 tremes of, pernicious, 214; 
 Excessive, forces industry 
 from natural channels, 214; 
 Interest of revenue a check 
 upon excessive, 215; Alleged 
 smallness of the House of 
 Representatives in relation 
 to, 216; Need of extensive in- 
 formation to legislate upon, 
 218 ; Contention that the 
 nation cannot use internal, 
 with advantage, 220; Meth- 
 ods of devising system of, 
 820; Distinction between di- 
 rect and indirect, 22i»; If 
 inconvenient. National Gov- 
 ernment can resort to requi- 
 sitions in lieu of internal, 223; 
 National adoption of State 
 
INDEX. 
 
 789 
 
 TaxtLtioa—Coniinued. 
 
 system of, 223; Must be uni- 
 form throughout Union, 823; 
 Spectres of double, 224 ; 
 Not necessarily increased by 
 adoption of Constitution, 225; 
 Will there be double?, 225; 
 The sinews of national de- 
 fence, 267; Provision of the 
 Constitution concerning, 297, 
 298; How far internal, 
 requires knowledge of local 
 circumstances, 373; A gen- 
 eral law of, compilable from 
 State laws, 373; Trial by 
 jury not a check upon op- 
 pressive, 559; Usually col- 
 lected by summary process, 
 659; As a means of aiding 
 domestic industry, 674; Cor- 
 rect limitation of, 674, 675; 
 Need of a bank for purposes 
 of, 675; Farming of, 676; 
 Proposed amendment con- 
 cerning, 688; Protective, not 
 perrohted by Constitution, 
 6go;, Unconstitutional em- 
 pl<?'/ ment of power of, 690, 
 69i«'. 
 
 Tax/Laws: Ineffective multipli- 
 cation of, in U. S., 74. 
 
 T'lX Officers {see also Civil Ser- 
 
 ' vice): Spectre of double sets 
 of, 224; Employment of State, 
 by nation, 225. 
 
 Taylor, John: Cited, xxxv. 
 
 Telegraph: Influence of, on Na- 
 tional Government, bn. 
 
 Temple, Sir William: Cited on 
 Belgic Confederacy, 121, 122. 
 
 Tender Laws: see Legal Tender. 
 
 Term of Office : English vs. 
 American, 230^; Influence of, 
 407; Shortness of, destroys 
 responsibility, 418. 
 
 Territorial Disputes: Clause in 
 Confederation controlling, 
 595; Proposed amendment 
 concerning, 641. 
 
 Territory: U. S., too vast for 
 one government, 6»; As a. 
 cause of dispute among 
 States and nations, 34 ; 
 Smallness of, aids usurper, 
 177; Government relatively 
 
 Territory— Continued. 
 
 weaker in large, 177; Great 
 extent of, a peculiar advan- 
 tage against foreign enemies 
 and ambitious rulers, 178; 
 Advantage of extensive, 422. 
 
 Territory, Public {see also Lands, 
 Public; Western Territory): 
 Enormous value of, 243, 244; 
 Unconstitutional action of 
 Congress over, 244; Grants 
 of, to nation, a84»; Ques- 
 tions concerning, 284», 285K; 
 Acquisition of, 285, 285«; 
 Federal adjudication of dis- 
 putes over, 534, 537; Power 
 to incorporate, 674; Rights 
 of the Southern States in, 
 716; Limitation on cession of 
 National: Proposed amend- 
 ment concerning, 637, 649; 
 New, not to be acquired by 
 U. S. without consent of a 
 majority of both slave and 
 free States, 719. 
 
 Texas, 285». 
 
 Thebans: Relations of, to Am- 
 phictyonic League, 110, 111. 
 
 Thesensi 237. 
 
 Tilden, Samuel J. , 267«. 
 
 Titles of Nobility {see Aris- 
 tocracy; Nobility; Well-born) : 
 The prohibition of , the corner- 
 stone of republican govern- 
 ment, 571. 
 
 Trade: see also Commerce; Navi- 
 gation. 
 
 Treason: Power of National 
 Government over, 283, 532, 
 571; Constitutional definition 
 of, 283; Power of pardoning, 
 459-461; President excluded 
 from pardoning, 459, 497; 
 Power of pardoning, in Great 
 Britain, 459; A crime against 
 society, 498; A power of par- 
 doning, best lodged in hands 
 of single official, 498; Pro- 
 posed amendment concern- 
 ing, 644; The punishment of, 
 the power of sovereignty 
 only, 702; States possess no 
 power to punish, 702. 
 
 Treasury Department: Necessity 
 of bank to, 655, 
 
79° 
 
 INDEX. 
 
 Treaties: Violations of, a fre- 
 quent cause of war, 13; Im- 
 possible to adjudicate, in thir- 
 teen States or in separate 
 confederacies, 14; Violation 
 of, usually local, 16; Slight 
 dependence to be placed 
 upon, 92; Lack of commercial 
 power a bar to, 131; Neces- 
 sity of supreme tribunal for 
 construing, 140; U. S.: Li- 
 able to infractions of thirteen 
 States, 141; National power 
 concerning, 271; No longer 
 can be frustrated by individ- 
 ual States, 271; States re- 
 stricted from entering into, 
 294; Power under the Con- 
 stitution concerning, 294 ; 
 Encroachment of House of 
 Representatives in, 330« ; 
 Clause in Constitution con- 
 cerning, 426; Importance of, 
 426; To be made by specially 
 able men, 438; Importance of 
 secrecy in, 429 ; Should be 
 discussed like laws, 42gK ; 
 Opportunities for favorable, 
 430; Importance of dispatch 
 in, 430; Contention that they 
 are acts of legislation, 430; 
 Objection to their being the 
 supreme law of the land, 431; 
 Contention that they should 
 be repealable at pleasure, 
 
 431 ; Possible corruption in, 
 
 432 ; Senators their own 
 judges in impeachment cases 
 originating in, 445; Presiden- 
 tial power over, 461; English 
 system of, 461 ; Objection to 
 Presidential share in, 499 ; 
 Both an executive and a leg- 
 islative act, 500; Contracts 
 with foreign powers, 500 ; 
 Senate should not have sole 
 power to form, 501; Why the 
 House of Representatives 
 ought to have no power in 
 forming, 502 ; Requisites for 
 forming, 502 ; Objection to 
 two-thirds of Senate ratify- 
 ing, 503 ; Proposed amend- 
 ment concerning, 637, 649, 
 650. 
 
 Trevett vs. Weeden : Case of, 
 40». 
 
 Trial by Jury: see Jury. 
 
 Trusteeship of Office: Steady les- 
 sening of, 15K. 
 
 Tullins HostiliuB, 237. 
 
 Turkish Empire: System of tax- 
 ation in, 188. 
 
 Tyranny : Conditions which fa- 
 vor establishment of, 177; 
 Definition of, 319 ; Annual 
 elections necessary to pre- 
 vent, 353. 
 
 Union {^see also Confederation of 
 U. S. 1781 ; Constitution, 
 Federal; Government, U. S. ; 
 United States) : Inherent be- 
 lief of American people in, 
 XXV, 9 ; Attitude of party 
 leaders toward, xxv ; Impor- 
 tance of, 1, 7, 8; Utility of, 6; 
 Interest of American people 
 in, 7; Adoption of new Con- 
 stitution or dismemberment 
 of, 7; Continental Congresses 
 in favor of, 11; Dissolution of, 
 an end to national greatness, 
 11, 88; Tends to preserve 
 national peace, 13; Best pro- 
 tection from foreign natidjns, 
 13; Capacity of, to call irtto 
 service the best talents of 
 the country, 13, 14; A bul- -•, 
 wark against foreign force 
 and influence, 13-27; A means 
 of preventing dissensions 
 among the States, 27; A safe- 
 guard against domestic in- 
 surrections and wars, 27-40, 
 47-63 ; A safeguard against 
 standing armies as conse- 
 quent on domestic insurrec- 
 tions and wars, 41-47 ; A 
 barrier -against faction and 
 insurrection, 47, 52, 54, 582; 
 Size of, has a tendency to 
 depress faction, 49, 5o»; Ob- 
 jection to territorial size of, 
 49, 82 ; Montesquieu's theory 
 really favorable to, 52; Dis- 
 tinction between Confeder- 
 acy and Consolidation, 62; 
 Peculiar advantages from 
 greatness of territory of, 62, 
 
INDEX. 
 
 ;9i 
 
 Union — Continued. 
 
 63 ; A republican remedy 
 for republican diseases, 63; 
 Importance of, in a commer- 
 cial light, 64; Will make the 
 United States the arbiter of 
 Europe in America, 66 ; In- 
 fluence of, as to revenue, 72; 
 The only possible check on 
 European greatness, 72; Ease 
 in preventing smuggling by, 
 76; Great advantage as to 
 economy, 79; Importance of, 
 to facilitate intercourse, 85; 
 Importance of, in relation to 
 new States, 85; Impossible 
 with State independence, 90; 
 Impossible to enforce, if act- 
 ing only upon States, 93 ; 
 Dissolution of, through war 
 between States and Nation, 
 98 ; Principal purposes to be 
 secured by, 144; Must aban- 
 don legislating upon States, 
 to secure/ 146; Must have 
 power to extend national 
 law to citizens, 146, 147; 
 M^4st control means of com- 
 mon defence, 156; Affection 
 of citizens towards, will be 
 strengthened by extension 
 of powers of, 172; People of, 
 will oppose State insurrec- 
 tions, 17S ; Importance of, 
 for protection of States, 175; 
 Lessens need of standing 
 army, 263 ; Results of lack 
 of, 264; Attempt to reconcile 
 State sovereignty with, 277, 
 304; Action of States in with- 
 drawing from, 293?z; The 
 Constitution contains no 
 power unnecessary for, 303; 
 Underlying sense of nation- 
 ality in, 3I5» ; Increasing 
 interest in affairs of, 358; 
 Diversity in, a great advan- 
 tage, 398; Citizens of Amer- 
 ica believe it the basis of 
 their political happiness, 578; 
 Only secured by a com- 
 promise of many interests 
 and inclinations, 584 ; De- 
 clared by Confederation to 
 be perpetual, 597; Nature of, 
 
 Union — Continued. 
 
 679; Attachment to, 684, 685; 
 Nullification aims at destruc- 
 tion of, 693; Outline history of 
 formation of, 695; Object in 
 the formation of, 695, 696; All 
 united action based on, 702. 
 
 United Netherlands, see N^ ether - 
 lands. 
 
 United States (j« also American 
 People; Confederation; Con- 
 stitution, Federal; Govern- 
 ment, U.S.; Union): Govern- 
 mental system of, prior to 
 independence of, ix; Govern- 
 ment during the Revolution, 
 ix ; Development of, xviii; 
 Too great extent of, for any 
 one government, 6, 148; In- 
 habited by one united people, 
 8; Geographical conditions of, 
 8; National elements in, 8, 9; 
 Natural union of people of, 
 8, 9; Existing treaties of, in 
 1788, 13; Commerce of, with 
 foreign countries, 13; Result 
 ofdisunionin, 23; Divisionsin, 
 favored by French, 25«; Dif- 
 ference of wars in, 41; Happy 
 insularity of, 46; Distance of 
 Europe from, 46, 263 ;European 
 colonies in America too weak 
 to be dangerous to, 46; Ex- 
 tensive military establish- 
 ments not necessary in, 46; 
 Commercial character of, 64; 
 Largest territory in the world 
 with unrestricted trade, 69«; 
 Dominance of, in America, 70«; 
 A nest for peopling all Amer- 
 ica, 7o»; Great economy in 
 prevention of smuggling, 77; 
 Happy position of, as regards 
 contraband trade, 77 ; Terri- 
 torial dimension of, 84; Com- 
 parison of extent of, with 
 European countries, 84; In the 
 last stage of national humili- 
 ation, 89; Sovereign powers 
 of, made ineffective by not ex- 
 tending to individual citizens, 
 91; Bill to regulate British 
 relations with, 132; Neces- 
 sity of military establish- 
 ments in, 153; Dangers to, 
 
792 
 
 INDEX. 
 
 United States — Continued. 
 
 from European colonies, 163; 
 Not an opulent country, 191, 
 192; Effect of fixed term 
 of office in, 230«, 231; Sec- 
 tional differences in, 285; 
 Maladies of, 240; Seizure of 
 property of, by a State, an act 
 of war, 283; Congress to make 
 rules concerning property of, 
 286; Future relation of ratify- 
 ing and non-ratifying States 
 of, 293; A compound republic, 
 346; Too great and varied to 
 make factious government 
 probable, 348; Without re- 
 spect in Europe, 414; Distinc- 
 tion between powers of, and 
 State powers, 532«; National 
 pride in, 706. 
 
 Venezuelan Controversy: Unfor- 
 tunate position toward, 7i«. 
 
 Venice, 31; Not a republic, 246. 
 
 Vermont, 284« ; Controversy 
 with New York, 36; Supported 
 by other States, 36; Rap- 
 prochement of, with Canada, 
 86; Jurisdiction of New York 
 over, 176. 
 
 Veto: In colonial period, ix ; 
 Power of separate, 313K; At- 
 tempt to neutralize value of 
 Presidential, 329K; Proposed 
 extension of, 330K ; Presi- 
 dential, 458, 489; In Great 
 Britain, 458, 492; In New 
 York State, 459; In Massa- 
 chusetts, 459; As a check on 
 improper laws, 490; A shield 
 to the Executive, 490; Use of, 
 in U. S. 490»; Use of, to 
 limit power of Congress, 490«; 
 Chief use of, in U. S., 490»; 
 Not dangerous in single man, 
 491 ; Hesitancy of English 
 king to use, 492; Danger that 
 the President will not often 
 enough use, 493; Presidential 
 popularity through use of, 
 493»; Laws can be passed 
 over, 494; System of. in New 
 York State, 494; Constitu- 
 tional clause regarding, 
 modelled on Massachusetts 
 
 Veto — Continued. 
 
 Constitution, 495; Use of, to 
 pre vent unconstitutionallaws, 
 520»; The President's shield 
 against the Legislature, 654; 
 Nullification of National law 
 amounts to a power of State, 
 
 695, 697. 
 
 Vice-President: Failure of, xvii; 
 System of electing, 456; Argu- 
 ments against need of, 456. 
 
 Virginia, i27«; Violations of 
 Bill of Rights of, 55«; Alien 
 and Sedition resolutions of, 
 ioi», 3I5», 684; Proposition 
 of, to amend the Confedera- 
 tion, 257; Peculiarly vulner- 
 able coast of, 266; Conven- 
 tion of 1861, 284»; Blending 
 of governmental powers in, 
 325; Legislative tyranny in, 
 331; Jefferson's draft of a 
 constitution for, '334; Term 
 of office in, in relation to re- 
 sistance to Great V Britain, 
 352; Was the first to espouse 
 by a public act the resolution 
 of independence, 352; .Elec- 
 tions under former govern- 
 ment of, 362; Jury triak in, 
 562. \ 
 
 War: Causes of, 13, 28; Nationi-- 
 will go to, for profit, 18; Pre- 
 tended as well as just causes 
 for, 18; Sometimes wholly 
 personal, 18; Experience of 
 ancient republics as to, 30; 
 Love of wealth as great a 
 cause of, as love of power or 
 glory, 30; Violation of con- 
 tracts a cause for, 40; Influ- 
 ence of fortifications on, 41; 
 Increases the power of exec- 
 utive, 43; Decreases legisla- 
 tive authority, 43; Unfortu- 
 nate influence of, on morals, 
 46; Refusal to allow Euro- 
 pean, to extend to America, 
 7i»; Between nation and 
 States will probably termi- 
 nate Union, 98; Science of, 
 180; Influence of, upon na- 
 tional revenue, 191; Cannot 
 be a matter of nalional op- 
 
INDEX. 
 
 793 
 
 War — Continued. 
 
 tion, 209; Passions for, reign 
 in the human breast, 209; 
 Difficulty of constitutional 
 governments conducting, 
 
 48o«; Expenses of, under 
 Confederation, 593; Power to 
 declare: Proposed amend- 
 ment concerning, 643, 689. 
 
 War Powers: Presidential as- 
 sumption respecting, xv ; 
 Presidential, 4g6«. 
 
 Wars, Indian: Usually due to 
 conduct of individual States, 
 16. 
 
 Washington, City of: see Capital, 
 National. 
 
 Washington, George, 5I2», 520«; 
 Cited, xxi. 
 
 Wealth, National: Depends on 
 infinite variety of causes, 128; 
 Not likely to be unduly 
 r^epresented in National Gov- 
 ernment, 399; Well diffused 
 throug-h country, 402. 
 
 Weights and Measures: National 
 power to regulate, 277. 
 
 Well-Wn: Absurdity that the 
 National Government will 
 fs^vor, 399 ; Well diffused 
 through the country, 402. 
 
 Western Lakes: Navigation of, 67. 
 Western Posts: Great importance 
 
 of certain, 155. 
 Western States: Grievance of, 
 
 concerning Mississippi, 6k. 
 Western Territory {see also Terri-, 
 
 tory. Public): Necessity of 
 
 garrisons for, 164. 
 West India Trade: Enjoyment of 
 
 privileges of, 66. 
 West Indies: European holding 
 
 of, a source of possible dan- 
 ger, 153. 
 West Virginia, 284». 
 Whiskey Insurrection, 75«, ioim. 
 Wolsey, Cardinal: Influence of 
 
 ambition of, 29. 
 Woman: Influence of, in public 
 
 affairs, 29. 
 Wood, Fernando, 284». 
 World: Natural geographical 
 
 divisions of, 70. 
 Wyoming: Contest'over, 33, 35; 
 
 Dispute forces Pennsylvania 
 
 to raise troops, 160, 175. 
 
 Yates, Abraham : Quoted, 495. 
 
 Yates, Robert: Withdraws from 
 Convention, xx; Writes let- 
 ters of Brutus, xxi, xxiii, xxx. 
 
 Zaieucus, 237. 
 
"Timely, manly, thorougkired, and emineKtly suggestive.''— Atlaktic Monthly. 
 Sixteenth Edition of a New York Novel. 
 
 THE HON. PETER STIRLING 
 
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JOHNSTON'S (ALEXANDER) HISTORIES. 
 
 History of the United States. For Schooli. With an 
 introductory History of the Discovery and English Coloniza- 
 tion of North America. With Maps, Plans, Illustrations, and 
 Questions. By Alexander Johnston, Professor in Princeton 
 College, author of a " History of American Politics," etc., 
 etc. i2mo. 473 pp. Teachers' price, $i.oo; by mail, $1.15. 
 Allowance for old book, 30 cents. 
 
 "A history of the Nation, with an introductory sketch of discovery 
 and colonization, and not, as so many text-books are, a history of the 
 colonial period, with an appendix on national development^^ 
 
 In his preface the author says: — "There are already in existence 
 books in abundance which tell stories in the manner attractive to pupils 
 at the most imaginative period of life ; and the pupil's mind, if properly 
 directed by the teacher, will turn to them naturally and derive more 
 satisfaction and instruction from them than can be gained from any 
 school history of usable compass. It hardly seems wise for a school 
 history to force itself into a hopeless competition in a field which 
 has already been so fully pre-empted. History is a task and a method 
 of mental discipline ; our school histories attempt to rwitiVc it'oi ho 
 one attempts to relieve grammar or ari*''^ ,iic*,-'65"!story telling. The 
 reason generally advanced for the transfer of the stirring stories of The 
 past out of the reading book or general reading into the school hW 
 tories is that they stimulate the minds of pupils to an emulation of the 
 great deeds which are narrated. In isolated cases the reason may b« 
 valid ; there may have been cases in which the mind of the pupil ^ 
 been thus stimulated with useful effect. But the mass of pupils 
 no opportunity to exhibit any such result ; their need is to lea— 
 the history of the past how best to perform the simple ana 
 duties of good citizenship. \ 
 
 " The design of this book then, is to group those events which ■''^J 
 likely to shed light on the responsibilities of the citizen to th&.r~S? 
 or future, and to give the student the light in conftetJl^n with the 
 event. In this process the effort has been made with caution and with 
 a studied simplicity of language, to interest the pupil in the wonderful 
 development of the United States and the difficult economic problems 
 which have grown out of it. And in every place where it has seemed pos- 
 sible, the attention of the pupil has been directed to the peculiar circum- 
 tances and limitations of the time under consideration, and to the idea 
 of growth to be attained by a comparison with'the present. For much 
 the same reasons, other topics, not essential to the main subject, such 
 as the tribal institutions of the Aborigines, and the Spanish conquests 
 of Mexico and Peru, have been left untouched. And, in narrating the 
 wars of the United States, while the effort has been made to give the 
 pupil a definite idea of the purposes, plans, and results of campaigns, 
 it has not seemed best to cumber the narration with a catalogue of 
 engagements and commanders, whose very names are only a spring of 
 confusion to the mind of the pupiL" 
 
JOHNSTON'S (A.) HISTORIES.— (a>«rt««^</.) 
 
 The book is in use in over Three Hundred leading schools^ from a 
 few of which reports are printedbeloWy in connection with decided ex- 
 pressions of opinion from prominent specialists. Both the Harvard 
 University and the University of Michigan catalogues suggest the 
 book to students presenting themselves for admission. 
 
 From Mr, John Fiske, the well-known writer and lecturer on 
 United States History .' — Incomparably the best short history of the 
 United States with which I am acquainted. 
 
 From R, Hudson, Professor of History in University of Michigan^ 
 Ann Arbor } — I regard Johnston's " History of the United States," 
 as the best text-book for use in High Schools that has yet been pub- 
 lished. 
 
 From Dr. A. B. Hart, Instructor in History in Harvard Uni- 
 versity: — ^The " History," so far eis I have examined it, seems de- 
 cidedly the best school history of the United States which has appeared. 
 
 From Moses Coit Tyler, Professor of History, Cornell Univer- 
 sity : — Its great feature — that of subordinating our colonial history to 
 our national history — ^is certainly wise and beneficial, if not carried 
 too far ; while its terse but always clear language, and the force with 
 which it puts forward the essential facts in each historic situation, make 
 it an effective text-book. 
 
 From WooDROW Wilson, Professor in Bryn Mawr College : — Its 
 special excellence, in my eyes, is its subordination of "drum and 
 trumpet" lo those questions, constitutional and social, which have 
 given drum and trumpet their occasional employment. 
 
 From James Monroe, Professor in Oberlin College : — I approve of 
 the substitution of important facts, political, military, or economic — in 
 other words, of real history — for the romantic stories that have filled so 
 large a space in our school-books. On the whole, I know of no school 
 history of the United States which includes so much that is necessary 
 to know, and excludes so much that is not. 
 
 From J. Macy, Professor of History, Iowa College : — I have ex- 
 amined Prof. Johnston's " History of the United States," and have used 
 it in my classes, and it seems to me, on the whole, the most satisfactory 
 school history with which I am acquainted. 
 
 From Geo. W. Knight, Professor in Ohio State University : — 
 Nearly a year's use vrith classes has conclusively proved to me that my 
 first estimate of the book was correct. It is, I think, decidedly the best 
 book in the field for thorough class-work in United States history. One 
 of the valuable features of the work is the prominent cind lucid treat- 
 ment of the political history of the country. Another is the condensa- 
 tion of the colonial history into shorter space than in any other book. 
 It might be still further condensed, I think, with advantage. The book 
 has proved more satisfactory in all regards than any we have previously 
 used. 
 
 From Charles H, Livermore, Teacher in Hopkins Grammar 
 School, New Haven, Ct. .' — After using Johnston's " History of the 
 United States " in the class-room for one year, I am able to commend 
 it as the best text-book of the kind which I have found. 
 
Eighth Impression of a Remarkable New Romance. 
 By E. L. VoYNiCH. i2mo, cloth. $1.25. 
 
 New York Tribune: " He shows us the veritable conspir- 
 aCor of history, who plotted like a human being and not like 
 an operatic bandit. . . It is a thrilling book and absolutely 
 sober, . . * The Gadfly ' is an original and impressive being. 
 
 New York Times: "Paradox worked up with intense 
 dramatic effect is the salient feature of 'The Gadfly'. . . 
 shows a wonderfully strong hand, and descriptive powers 
 which are rare ... a very remarkable romance." 
 
 The Dial: "One of the most interesting phases of 
 the history of Nineteenth Century Europe. The story of the 
 Italian revolutionary movement ... is full of such inci- 
 dents as the novelist most desires . . . this novel is one of 
 the strongest of the year, vivid in conception, and dramatic 
 in execution, flUed with intense human feeling, and worked 
 up to a tremendously impressive climax." 
 
 The Critic : '*An historical novel permeated with a deep 
 religious interest in which from fii^t to last the story is dom- 
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 the imagination," 
 
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 This is the crowning merit of this book," 
 
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 to welcome a new and intense writer ... a profound psycho- 
 logical study ... a powerful climax. Yet, however much 
 the imagination be used, the author will be found to rise be- 
 yond it; the scene at High Mass on the feast of Corpus Christi 
 being one of the most powerful in English fiction." 
 
 The Independent: " We have read this peculiar romance 
 with breathless interest ... a romance of revolutionary ex- 
 periences in Italy; lifelike, stirring, picturesque, a story of 
 passion, sacrifice, and tragic energy." 
 
 The Literary World : ^ "A powerful and picturesque 
 story— a canvas glowing with color and life — the few striking 
 characters stand out in firm, resolute outlines. We heartily 
 commend * The Gadfly.* " 
 
 The Chicago Post: " A powerful story, and, unlike others 
 of its kind, holds the reader s attention strictly to the end." 
 
 The Chicago Times-Herald: "'The Gadfly' is a tre- 
 mendous story. It goes on like a whirlwind, gathering force 
 as it rushes." 
 
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