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The Federalist Papers

By Alexander Hamilton, James Madison & John Jay

FEDERALIST. No. 1

General Introduction

For the Independent Journal.

HAMILTON

To the People of the State of New York:

AFTER an unequivocal experience of the inefficacy of the

subsisting federal government, you are called upon to deliberate on

a new Constitution for the United States of America. The subject

speaks its own importance; comprehending in its consequences

nothing less than the existence of the UNION, the safety and welfare

of the parts of which it is composed, the fate of an empire in many

respects the most interesting in the world. It has been frequently

remarked that it seems to have been reserved to the people of this

country, by their conduct and example, to decide the important

question, whether societies of men are really capable or not of

establishing good government from reflection and choice, or whether

they are forever destined to depend for their political

constitutions on accident and force. If there be any truth in the

remark, the crisis at which we are arrived may with propriety be

regarded as the era in which that decision is to be made; and a

wrong election of the part we shall act may, in this view, deserve

to be considered as the general misfortune of mankind.

This idea will add the inducements of philanthropy to those of

patriotism, to heighten the solicitude which all considerate and

good men must feel for the event. Happy will it be if our choice

should be directed by a judicious estimate of our true interests,

unperplexed and unbiased by considerations not connected with the

public good. But this is a thing more ardently to be wished than

seriously to be expected. The plan offered to our deliberations

affects too many particular interests, innovates upon too many local

institutions, not to involve in its discussion a variety of objects

foreign to its merits, and of views, passions and prejudices little

favorable to the discovery of truth.

Among the most formidable of the obstacles which the new

Constitution will have to encounter may readily be distinguished the

obvious interest of a certain class of men in every State to resist

all changes which may hazard a diminution of the power, emolument,

and consequence of the offices they hold under the State

establishments; and the perverted ambition of another class of men,

who will either hope to aggrandize themselves by the confusions of

their country, or will flatter themselves with fairer prospects of

elevation from the subdivision of the empire into several partial

confederacies than from its union under one government.

It is not, however, my design to dwell upon observations of this

nature. I am well aware that it would be disingenuous to resolve

indiscriminately the opposition of any set of men (merely because

their situations might subject them to suspicion) into interested or

ambitious views. Candor will oblige us to admit that even such men

may be actuated by upright intentions; and it cannot be doubted

that much of the opposition which has made its appearance, or may

hereafter make its appearance, will spring from sources, blameless

at least, if not respectable--the honest errors of minds led astray

by preconceived jealousies and fears. So numerous indeed and so

powerful are the causes which serve to give a false bias to the

judgment, that we, upon many occasions, see wise and good men on the

wrong as well as on the right side of questions of the first

magnitude to society. This circumstance, if duly attended to, would

furnish a lesson of moderation to those who are ever so much

persuaded of their being in the right in any controversy. And a

further reason for caution, in this respect, might be drawn from the

reflection that we are not always sure that those who advocate the

truth are influenced by purer principles than their antagonists.

Ambition, avarice, personal animosity, party opposition, and many

other motives not more laudable than these, are apt to operate as

well upon those who support as those who oppose the right side of a

question. Were there not even these inducements to moderation,

nothing could be more ill-judged than that intolerant spirit which

has, at all times, characterized political parties. For in

politics, as in religion, it is equally absurd to aim at making

proselytes by fire and sword. Heresies in either can rarely be

cured by persecution.

And yet, however just these sentiments will be allowed to be, we

have already sufficient indications that it will happen in this as

in all former cases of great national discussion. A torrent of

angry and malignant passions will be let loose. To judge from the

conduct of the opposite parties, we shall be led to conclude that

they will mutually hope to evince the justness of their opinions,

and to increase the number of their converts by the loudness of

their declamations and the bitterness of their invectives. An

enlightened zeal for the energy and efficiency of government will be

stigmatized as the offspring of a temper fond of despotic power and

hostile to the principles of liberty. An over-scrupulous jealousy

of danger to the rights of the people, which is more commonly the

fault of the head than of the heart, will be represented as mere

pretense and artifice, the stale bait for popularity at the expense

of the public good. It will be forgotten, on the one hand, that

jealousy is the usual concomitant of love, and that the noble

enthusiasm of liberty is apt to be infected with a spirit of narrow

and illiberal distrust. On the other hand, it will be equally

forgotten that the vigor of government is essential to the security

of liberty; that, in the contemplation of a sound and well-informed

judgment, their interest can never be separated; and that a

dangerous ambition more often lurks behind the specious mask of zeal

for the rights of the people than under the forbidden appearance of

zeal for the firmness and efficiency of government. History will

teach us that the former has been found a much more certain road to

the introduction of despotism than the latter, and that of those men

who have overturned the liberties of republics, the greatest number

have begun their career by paying an obsequious court to the people;

commencing demagogues, and ending tyrants.

In the course of the preceding observations, I have had an eye,

my fellow-citizens, to putting you upon your guard against all

attempts, from whatever quarter, to influence your decision in a

matter of the utmost moment to your welfare, by any impressions

other than those which may result from the evidence of truth. You

will, no doubt, at the same time, have collected from the general

scope of them, that they proceed from a source not unfriendly to the

new Constitution. Yes, my countrymen, I own to you that, after

having given it an attentive consideration, I am clearly of opinion

it is your interest to adopt it. I am convinced that this is the

safest course for your liberty, your dignity, and your happiness. I

affect not reserves which I do not feel. I will not amuse you with

an appearance of deliberation when I have decided. I frankly

acknowledge to you my convictions, and I will freely lay before you

the reasons on which they are founded. The consciousness of good

intentions disdains ambiguity. I shall not, however, multiply

professions on this head. My motives must remain in the depository

of my own breast. My arguments will be open to all, and may be

judged of by all. They shall at least be offered in a spirit which

will not disgrace the cause of truth.

I propose, in a series of papers, to discuss the following

interesting particulars:

THE UTILITY OF THE UNION TO YOUR POLITICAL PROSPERITY

THE INSUFFICIENCY OF THE PRESENT CONFEDERATION

TO PRESERVE THAT UNION THE NECESSITY OF A GOVERNMENT AT LEAST

EQUALLY ENERGETIC WITH THE ONE PROPOSED, TO THE ATTAINMENT OF THIS

OBJECT THE CONFORMITY OF THE PROPOSED CONSTITUTION TO THE TRUE

PRINCIPLES OF REPUBLICAN GOVERNMENT

ITS ANALOGY TO YOUR OWN STATE CONSTITUTION

and lastly, THE ADDITIONAL SECURITY WHICH ITS

ADOPTION WILL AFFORD TO THE PRESERVATION OF THAT SPECIES OF

GOVERNMENT, TO LIBERTY, AND TO PROPERTY.

In the progress of this discussion I shall endeavor to give a

satisfactory answer to all the objections which shall have made

their appearance, that may seem to have any claim to your attention.

It may perhaps be thought superfluous to offer arguments to

prove the utility of the UNION, a point, no doubt, deeply engraved

on the hearts of the great body of the people in every State, and

one, which it may be imagined, has no adversaries. But the fact is,

that we already hear it whispered in the private circles of those

who oppose the new Constitution, that the thirteen States are of too

great extent for any general system, and that we must of necessity

resort to separate confederacies of distinct portions of the

whole.1 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.

1 The same idea, tracing the arguments to their consequences, is

held out in several of the late publications against the new

Constitution.

 

 

FEDERALIST No. 2

Concerning Dangers from Foreign Force and Influence

For the Independent Journal.

JAY

To the People of the State of New York:

WHEN the people of America reflect that they are now called upon

to decide a question, which, in its consequences, must prove one of

the most important that ever engaged their attention, the propriety

of their taking a very comprehensive, as well as a very serious,

view of it, will be evident.

Nothing is more certain than the indispensable necessity of

government, and it is equally undeniable, that whenever and however

it is instituted, the people must cede to it some of their natural

rights in order to vest it with requisite powers. It is well worthy

of consideration therefore, whether it would conduce more to the

interest of the people of America that they should, to all general

purposes, be one nation, under one federal government, or that they

should divide themselves into separate confederacies, and give to

the head of each the same kind of powers which they are advised to

place in one national government.

It has until lately been a received and uncontradicted opinion

that the prosperity of the people of America depended on their

continuing firmly united, and the wishes, prayers, and efforts of

our best and wisest citizens have been constantly directed to that

object. But politicians now appear, who insist that this opinion is

erroneous, and that instead of looking for safety and happiness in

union, we ought to seek it in a division of the States into distinct

confederacies or sovereignties. However extraordinary this new

doctrine may appear, it nevertheless has its advocates; and certain

characters who were much opposed to it formerly, are at present of

the number. Whatever may be the arguments or inducements which have

wrought this change in the sentiments and declarations of these

gentlemen, it certainly would not be wise in the people at large to

adopt these new political tenets without being fully convinced that

they are founded in truth and sound policy.

It has often given me pleasure to observe that independent

America was not composed of detached and distant territories, but

that one connected, fertile, widespreading country was the portion

of our western sons of liberty. Providence has in a particular

manner blessed it with a variety of soils and productions, and

watered it with innumerable streams, for the delight and

accommodation of its inhabitants. A succession of navigable waters

forms a kind of chain round its borders, as if to bind it together;

while the most noble rivers in the world, running at convenient

distances, present them with highways for the easy communication of

friendly aids, and the mutual transportation and exchange of their

various commodities.

With equal pleasure I have as often taken notice that Providence

has been pleased to give this one connected country to one united

people--a people descended from the same ancestors, speaking the same

language, professing the same religion, attached to the same

principles of government, very similar in their manners and customs,

and who, by their joint counsels, arms, and efforts, fighting side

by side throughout a long and bloody war, have nobly established

general liberty and independence.

This country and this people seem to have been made for each

other, and it appears as if it was the design of Providence, that an

inheritance so proper and convenient for a band of brethren, united

to each other by the strongest ties, should never be split into a

number of unsocial, jealous, and alien sovereignties.

Similar sentiments have hitherto prevailed among all orders and

denominations of men among us. To all general purposes we have

uniformly been one people each individual citizen everywhere

enjoying the same national rights, privileges, and protection. As a

nation we have made peace and war; as a nation we have vanquished

our common enemies; as a nation we have formed alliances, and made

treaties, and entered into various compacts and conventions with

foreign states.

A strong sense of the value and blessings of union induced the

people, at a very early period, to institute a federal government to

preserve and perpetuate it. They formed it almost as soon as they

had a political existence; nay, at a time when their habitations

were in flames, when many of their citizens were bleeding, and when

the progress of hostility and desolation left little room for those

calm and mature inquiries and reflections which must ever precede

the formation of a wise and wellbalanced 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 pursuaded that ample

security for both could only be found in a national government more

wisely framed, they as with one voice, convened the late convention

at Philadelphia, to take that important subject under consideration.

This convention composed of men who possessed the confidence of

the people, and many of whom had become highly distinguished by

their patriotism, virtue and wisdom, in times which tried the minds

and hearts of men, undertook the arduous task. In the mild season

of peace, with minds unoccupied by other subjects, they passed many

months in cool, uninterrupted, and daily consultation; and finally,

without having been awed by power, or influenced by any passions

except love for their country, they presented and recommended to the

people the plan produced by their joint and very unanimous councils.

Admit, for so is the fact, that this plan is only RECOMMENDED,

not imposed, yet let it be remembered that it is neither recommended

to BLIND approbation, nor to BLIND reprobation; but to that sedate

and candid consideration which the magnitude and importance of the

subject demand, and which it certainly ought to receive. But this

(as was remarked in the foregoing number of this paper) is more to

be wished than expected, that it may be so considered and examined.

Experience on a former occasion teaches us not to be too sanguine

in such hopes. It is not yet forgotten that well-grounded

apprehensions of imminent danger induced the people of America to

form the memorable Congress of 1774. That body recommended certain

measures to their constituents, and the event proved their wisdom;

yet it is fresh in our memories how soon the press began to teem

with pamphlets and weekly papers against those very measures. Not

only many of the officers of government, who obeyed the dictates of

personal interest, but others, from a mistaken estimate of

consequences, or the undue influence of former attachments, or whose

ambition aimed at objects which did not correspond with the public

good, were indefatigable in their efforts to pursuade the people to

reject the advice of that patriotic Congress. Many, indeed, were

deceived and deluded, but the great majority of the people reasoned

and decided judiciously; and happy they are in reflecting that they

did so.

They considered that the Congress was composed of many wise and

experienced men. That, being convened from different parts of the

country, they brought with them and communicated to each other a

variety of useful information. That, in the course of the time they

passed together in inquiring into and discussing the true interests

of their country, they must have acquired very accurate knowledge on

that head. That they were individually interested in the public

liberty and prosperity, and therefore that it was not less their

inclination than their duty to recommend only such measures as,

after the most mature deliberation, they really thought prudent and

advisable.

These and similar considerations then induced the people to rely

greatly on the judgment and integrity of the Congress; and they

took their advice, notwithstanding the various arts and endeavors

used to deter them from it. But if the people at large had reason

to confide in the men of that Congress, few of whom had been fully

tried or generally known, still greater reason have they now to

respect the judgment and advice of the convention, for it is well

known that some of the most distinguished members of that Congress,

who have been since tried and justly approved for patriotism and

abilities, and who have grown old in acquiring political

information, were also members of this convention, and carried into

it their accumulated knowledge and experience.

It is worthy of remark that not only the first, but every

succeeding Congress, as well as the late convention, have invariably

joined with the people in thinking that the prosperity of America

depended on its Union. To preserve and perpetuate it was the great

object of the people in forming that convention, and it is also the

great object of the plan which the convention has advised them to

adopt. With what propriety, therefore, or for what good purposes,

are attempts at this particular period made by some men to

depreciate the importance of the Union? Or why is it suggested that

three or four confederacies would be better than one? I am

persuaded in my own mind that the people have always thought right

on this subject, and that their universal and uniform attachment to

the cause of the Union rests on great and weighty reasons, which I

shall endeavor to develop and explain in some ensuing papers. They

who promote the idea of substituting a number of distinct

confederacies in the room of the plan of the convention, seem

clearly to foresee that the rejection of it would put the

continuance of the Union in the utmost jeopardy. That certainly

would be the case, and I sincerely wish that it may be as clearly

foreseen by every good citizen, that whenever the dissolution of the

Union arrives, America will have reason to exclaim, in the words of

the poet: ``FAREWELL! A LONG FAREWELL TO ALL MY GREATNESS.''

PUBLIUS.

 

FEDERALIST No. 3

The Same Subject Continued

(Concerning Dangers From Foreign Force and Influence)

For the Independent Journal.

JAY

To the People of the State of New York:

IT IS not a new observation that the people of any country (if,

like the Americans, intelligent and wellinformed) seldom adopt and

steadily persevere for many years in an erroneous opinion respecting

their interests. That consideration naturally tends to create great

respect for the high opinion which the people of America have so

long and uniformly entertained of the importance of their continuing

firmly united under one federal government, vested with sufficient

powers for all general and national purposes.

The more attentively I consider and investigate the reasons

which appear to have given birth to this opinion, the more I become

convinced that they are cogent and conclusive.

Among the many objects to which a wise and free people find it

necessary to direct their attention, that of providing for their

SAFETY seems to be the first. The SAFETY of the people doubtless

has relation to a great variety of circumstances and considerations,

and consequently affords great latitude to those who wish to define

it precisely and comprehensively.

At present I mean only to consider it as it respects security

for the preservation of peace and tranquillity, as well as against

dangers from FOREIGN ARMS AND INFLUENCE, as from dangers of the LIKE

KIND arising from domestic causes. As the former of these comes

first in order, it is proper it should be the first discussed. Let

us therefore proceed to examine whether the people are not right in

their opinion that a cordial Union, under an efficient national

government, affords them the best security that can be devised

against HOSTILITIES from abroad.

The number of wars which have happened or will happen in the

world will always be found to be in proportion to the number and

weight of the causes, whether REAL or PRETENDED, which PROVOKE or

INVITE them. If this remark be just, it becomes useful to inquire

whether so many JUST causes of war are likely to be given by UNITED

AMERICA as by DISUNITED America; for if it should turn out that

United America will probably give the fewest, then it will follow

that in this respect the Union tends most to preserve the people in

a state of peace with other nations.

The JUST causes of war, for the most part, arise either from

violation of treaties or from direct violence. America has already

formed treaties with no less than six foreign nations, and all of

them, except Prussia, are maritime, and therefore able to annoy and

injure us. She has also extensive commerce with Portugal, Spain,

and Britain, and, with respect to the two latter, has, in addition,

the circumstance of neighborhood to attend to.

It is of high importance to the peace of America that she

observe the laws of nations towards all these powers, and to me it

appears evident that this will be more perfectly and punctually done

by one national government than it could be either by thirteen

separate States or by three or four distinct confederacies.

Because when once an efficient national government is

established, the best men in the country will not only consent to

serve, but also will generally be appointed to manage it; for,

although town or country, or other contracted influence, may place

men in State assemblies, or senates, or courts of justice, or

executive departments, yet more general and extensive reputation for

talents and other qualifications will be necessary to recommend men

to offices under the national government,--especially as it will have

the widest field for choice, and never experience that want of

proper persons which is not uncommon in some of the States. Hence,

it will result that the administration, the political counsels, and

the judicial decisions of the national government will be more wise,

systematical, and judicious than those of individual States, and

consequently more satisfactory with respect to other nations, as

well as more SAFE with respect to us.

Because, under the national government, treaties and articles of

treaties, as well as the laws of nations, will always be expounded

in one sense and executed in the same manner,--whereas, adjudications

on the same points and questions, in thirteen States, or in three or

four confederacies, will not always accord or be consistent; and

that, as well from the variety of independent courts and judges

appointed by different and independent governments, as from the

different local laws and interests which may affect and influence

them. The wisdom of the convention, in committing such questions to

the jurisdiction and judgment of courts appointed by and responsible

only to one national government, cannot be too much commended.

Because the prospect of present loss or advantage may often

tempt the governing party in one or two States to swerve from good

faith and justice; but those temptations, not reaching the other

States, and consequently having little or no influence on the

national government, the temptation will be fruitless, and good

faith and justice be preserved. The case of the treaty of peace

with Britain adds great weight to this reasoning.

Because, even if the governing party in a State should be

disposed to resist such temptations, yet as such temptations may,

and commonly do, result from circumstances peculiar to the State,

and may affect a great number of the inhabitants, the governing

party may not always be able, if willing, to prevent the injustice

meditated, or to punish the aggressors. But the national

government, not being affected by those local circumstances, will

neither be induced to commit the wrong themselves, nor want power or

inclination to prevent or punish its commission by others.

So far, therefore, as either designed or accidental violations

of treaties and the laws of nations afford JUST causes of war, they

are less to be apprehended under one general government than under

several lesser ones, and in that respect the former most favors the

SAFETY of the people.

As to those just causes of war which proceed from direct and

unlawful violence, it appears equally clear to me that one good

national government affords vastly more security against dangers of

that sort than can be derived from any other quarter.

Because such violences are more frequently caused by the

passions and interests of a part than of the whole; of one or two

States than of the Union. Not a single Indian war has yet been

occasioned by aggressions of the present federal government, feeble

as it is; but there are several instances of Indian hostilities

having been provoked by the improper conduct of individual States,

who, either unable or unwilling to restrain or punish offenses, have

given occasion to the slaughter of many innocent inhabitants.

The neighborhood of Spanish and British territories, bordering

on some States and not on others, naturally confines the causes of

quarrel more immediately to the borderers. The bordering States, if

any, will be those who, under the impulse of sudden irritation, and

a quick sense of apparent interest or injury, will be most likely,

by direct violence, to excite war with these nations; and nothing

can so effectually obviate that danger as a national government,

whose wisdom and prudence will not be diminished by the passions

which actuate the parties immediately interested.

But not only fewer just causes of war will be given by the

national government, but it will also be more in their power to

accommodate and settle them amicably. They will be more temperate

and cool, and in that respect, as well as in others, will be more in

capacity to act advisedly than the offending State. The pride of

states, as well as of men, naturally disposes them to justify all

their actions, and opposes their acknowledging, correcting, or

repairing their errors and offenses. The national government, in

such cases, will not be affected by this pride, but will proceed

with moderation and candor to consider and decide on the means most

proper to extricate them from the difficulties which threaten them.

Besides, it is well known that acknowledgments, explanations,

and compensations are often accepted as satisfactory from a strong

united nation, which would be rejected as unsatisfactory if offered

by a State or confederacy of little consideration or power.

In the year 1685, the state of Genoa having offended Louis XIV.,

endeavored to appease him. He demanded that they should send their

Doge, or chief magistrate, accompanied by four of their

senators, to FRANCE, to ask his pardon and receive his terms. They

were obliged to submit to it for the sake of peace. Would he on any

occasion either have demanded or have received the like humiliation

from Spain, or Britain, or any other POWERFUL nation?

PUBLIUS.

 

FEDERALIST No. 4

The Same Subject Continued

(Concerning Dangers From Foreign Force and Influence)

For the Independent Journal.

JAY

To the People of the State of New York:

MY LAST paper assigned several reasons why the safety of the

people would be best secured by union against the danger it may be

exposed to by JUST causes of war given to other nations; and those

reasons show that such causes would not only be more rarely given,

but would also be more easily accommodated, by a national government

than either by the State governments or the proposed little

confederacies.

But the safety of the people of America against dangers from

FOREIGN force depends not only on their forbearing to give JUST

causes of war to other nations, but also on their placing and

continuing themselves in such a situation as not to INVITE hostility

or insult; for it need not be observed that there are PRETENDED as

well as just causes of war.

It is too true, however disgraceful it may be to human nature,

that nations in general will make war whenever they have a prospect

of getting anything by it; nay, absolute monarchs will often make

war when their nations are to get nothing by it, but for the

purposes and objects merely personal, such as thirst for military

glory, revenge for personal affronts, ambition, or private compacts

to aggrandize or support their particular families or partisans.

These and a variety of other motives, which affect only the mind of

the sovereign, often lead him to engage in wars not sanctified by

justice or the voice and interests of his people. But, independent

of these inducements to war, which are more prevalent in absolute

monarchies, but which well deserve our attention, there are others

which affect nations as often as kings; and some of them will on

examination be found to grow out of our relative situation and

circumstances.

With France and with Britain we are rivals in the fisheries, and

can supply their markets cheaper than they can themselves,

notwithstanding any efforts to prevent it by bounties on their own

or duties on foreign fish.

With them and with most other European nations we are rivals in

navigation and the carrying trade; and we shall deceive ourselves

if we suppose that any of them will rejoice to see it flourish;

for, as our carrying trade cannot increase without in some degree

diminishing theirs, it is more their interest, and will be more

their policy, to restrain than to promote it.

In the trade to China and India, we interfere with more than one

nation, inasmuch as it enables us to partake in advantages which

they had in a manner monopolized, and as we thereby supply ourselves

with commodities which we used to purchase from them.

The extension of our own commerce in our own vessels cannot give

pleasure to any nations who possess territories on or near this

continent, because the cheapness and excellence of our productions,

added to the circumstance of vicinity, and the enterprise and

address of our merchants and navigators, will give us a greater

share in the advantages which those territories afford, than

consists with the wishes or policy of their respective sovereigns.

Spain thinks it convenient to shut the Mississippi against us on

the one side, and Britain excludes us from the Saint Lawrence on the

other; nor will either of them permit the other waters which are

between them and us to become the means of mutual intercourse and

traffic.

From these and such like considerations, which might, if

consistent with prudence, be more amplified and detailed, it is easy

to see that jealousies and uneasinesses may gradually slide into the

minds and cabinets of other nations, and that we are not to expect

that they should regard our advancement in union, in power and

consequence by land and by sea, with an eye of indifference and

composure.

The people of America are aware that inducements to war may

arise out of these circumstances, as well as from others not so

obvious at present, and that whenever such inducements may find fit

time and opportunity for operation, pretenses to color and justify

them will not be wanting. Wisely, therefore, do they consider union

and a good national government as necessary to put and keep them in

SUCH A SITUATION as, instead of INVITING war, will tend to repress

and discourage it. That situation consists in the best possible

state of defense, and necessarily depends on the government, the

arms, and the resources of the country.

As the safety of the whole is the interest of the whole, and

cannot be provided for without government, either one or more or

many, let us inquire whether one good government is not, relative to

the object in question, more competent than any other given number

whatever.

One government can collect and avail itself of the talents and

experience of the ablest men, in whatever part of the Union they may

be found. It can move on uniform principles of policy. It can

harmonize, assimilate, and protect the several parts and members,

and extend the benefit of its foresight and precautions to each. In

the formation of treaties, it will regard the interest of the whole,

and the particular interests of the parts as connected with that of

the whole. It can apply the resources and power of the whole to the

defense of any particular part, and that more easily and

expeditiously than State governments or separate confederacies can

possibly do, for want of concert and unity of system. It can place

the militia under one plan of discipline, and, by putting their

officers in a proper line of subordination to the Chief Magistrate,

will, as it were, consolidate them into one corps, and thereby

render them more efficient than if divided into thirteen or into

three or four distinct independent companies.

What would the militia of Britain be if the English militia

obeyed the government of England, if the Scotch militia obeyed the

government of Scotland, and if the Welsh militia obeyed the

government of Wales? Suppose an invasion; would those three

governments (if they agreed at all) be able, with all their

respective forces, to operate against the enemy so effectually as

the single government of Great Britain would?

We have heard much of the fleets of Britain, and the time may

come, if we are wise, when the fleets of America may engage

attention. But if one national government, had not so regulated the

navigation of Britain as to make it a nursery for seamen--if one

national government had not called forth all the national means and

materials for forming fleets, their prowess and their thunder would

never have been celebrated. Let England have its navigation and

fleet--let Scotland have its navigation and fleet--let Wales have its

navigation and fleet--let Ireland have its navigation and fleet--let

those four of the constituent parts of the British empire be be

under four independent governments, and it is easy to perceive how

soon they would each dwindle into comparative insignificance.

Apply these facts to our own case. Leave America divided into

thirteen or, if you please, into three or four independent

governments--what armies could they raise and pay--what fleets could

they ever hope to have? If one was attacked, would the others fly

to its succor, and spend their blood and money in its defense?

Would there be no danger of their being flattered into neutrality

by its specious promises, or seduced by a too great fondness for

peace to decline hazarding their tranquillity and present safety for

the sake of neighbors, of whom perhaps they have been jealous, and

whose importance they are content to see diminished? Although such

conduct would not be wise, it would, nevertheless, be natural. The

history of the states of Greece, and of other countries, abounds

with such instances, and it is not improbable that what has so often

happened would, under similar circumstances, happen again.

But admit that they might be willing to help the invaded State

or confederacy. How, and when, and in what proportion shall aids of

men and money be afforded? Who shall command the allied armies, and

from which of them shall he receive his orders? Who shall settle

the terms of peace, and in case of disputes what umpire shall decide

between them and compel acquiescence? Various difficulties and

inconveniences would be inseparable from such a situation; whereas

one government, watching over the general and common interests, and

combining and directing the powers and resources of the whole, would

be free from all these embarrassments, and conduce far more to the

safety of the people.

But whatever may be our situation, whether firmly united under

one national government, or split into a number of confederacies,

certain it is, that foreign nations will know and view it exactly as

it is; and they will act toward us accordingly. If they see that

our national government is efficient and well administered, our

trade prudently regulated, our militia properly organized and

disciplined, our resources and finances discreetly managed, our

credit re-established, our people free, contented, and united, they

will be much more disposed to cultivate our friendship than provoke

our resentment. If, on the other hand, they find us either

destitute of an effectual government (each State doing right or

wrong, as to its rulers may seem convenient), or split into three or

four independent and probably discordant republics or confederacies,

one inclining to Britain, another to France, and a third to Spain,

and perhaps played off against each other by the three, what a poor,

pitiful figure will America make in their eyes! How liable would

she become not only to their contempt but to their outrage, and how

soon would dear-bought experience proclaim that when a people or

family so divide, it never fails to be against themselves.

PUBLIUS.

 

FEDERALIST No. 5

The Same Subject Continued

(Concerning Dangers From Foreign Force and Influence)

For the Independent Journal.

JAY

To the People of the State of New York:

QUEEN ANNE, in her letter of the 1st July, 1706, to the Scotch

Parliament, makes some observations on the importance of the UNION

then forming between England and Scotland, which merit our attention.

I shall present the public with one or two extracts from it: ``An

entire and perfect union will be the solid foundation of lasting

peace: It will secure your religion, liberty, and property; remove

the animosities amongst yourselves, and the jealousies and

differences betwixt our two kingdoms. It must increase your

strength, riches, and trade; and by this union the whole island,

being joined in affection and free from all apprehensions of

different interest, will be ENABLED TO RESIST ALL ITS ENEMIES.''

``We most earnestly recommend to you calmness and unanimity in this

great and weighty affair, that the union may be brought to a happy

conclusion, being the only EFFECTUAL way to secure our present and

future happiness, and disappoint the designs of our and your

enemies, who will doubtless, on this occasion, USE THEIR UTMOST

ENDEAVORS TO PREVENT OR DELAY THIS UNION.''

It was remarked in the preceding paper, that weakness and

divisions at home would invite dangers from abroad; and that

nothing would tend more to secure us from them than union, strength,

and good government within ourselves. This subject is copious and

cannot easily be exhausted.

The history of Great Britain is the one with which we are in

general the best acquainted, and it gives us many useful lessons.

We may profit by their experience without paying the price which it

cost them. Although it seems obvious to common sense that the

people of such an island should be but one nation, yet we find that

they were for ages divided into three, and that those three were

almost constantly embroiled in quarrels and wars with one another.

Notwithstanding their true interest with respect to the continental

nations was really the same, yet by the arts and policy and

practices of those nations, their mutual jealousies were perpetually

kept inflamed, and for a long series of years they were far more

inconvenient and troublesome than they were useful and assisting to

each other.

Should the people of America divide themselves into three or

four nations, would not the same thing happen? Would not similar

jealousies arise, and be in like manner cherished? Instead of their

being ``joined in affection'' and free from all apprehension of

different ``interests,'' envy and jealousy would soon extinguish

confidence and affection, and the partial interests of each

confederacy, instead of the general interests of all America, would

be the only objects of their policy and pursuits. Hence, like most

other BORDERING nations, they would always be either involved in

disputes and war, or live in the constant apprehension of them.

The most sanguine advocates for three or four confederacies

cannot reasonably suppose that they would long remain exactly on an

equal footing in point of strength, even if it was possible to form

them so at first; but, admitting that to be practicable, yet what

human contrivance can secure the continuance of such equality?

Independent of those local circumstances which tend to beget and

increase power in one part and to impede its progress in another, we

must advert to the effects of that superior policy and good

management which would probably distinguish the government of one

above the rest, and by which their relative equality in strength and

consideration would be destroyed. For it cannot be presumed that

the same degree of sound policy, prudence, and foresight would

uniformly be observed by each of these confederacies for a long

succession of years.

Whenever, and from whatever causes, it might happen, and happen

it would, that any one of these nations or confederacies should rise

on the scale of political importance much above the degree of her

neighbors, that moment would those neighbors behold her with envy

and with fear. Both those passions would lead them to countenance,

if not to promote, whatever might promise to diminish her

importance; and would also restrain them from measures calculated

to advance or even to secure her prosperity. Much time would not be

necessary to enable her to discern these unfriendly dispositions.

She would soon begin, not only to lose confidence in her neighbors,

but also to feel a disposition equally unfavorable to them.

Distrust naturally creates distrust, and by nothing is good-will

and kind conduct more speedily changed than by invidious jealousies

and uncandid imputations, whether expressed or implied.

The North is generally the region of strength, and many local

circumstances render it probable that the most Northern of the

proposed confederacies would, at a period not very distant, be

unquestionably more formidable than any of the others. No sooner

would this become evident than the NORTHERN HIVE would excite the

same ideas and sensations in the more southern parts of America

which it formerly did in the southern parts of Europe. Nor does it

appear to be a rash conjecture that its young swarms might often be

tempted to gather honey in the more blooming fields and milder air

of their luxurious and more delicate neighbors.

They who well consider the history of similar divisions and

confederacies will find abundant reason to apprehend that those in

contemplation would in no other sense be neighbors than as they

would be borderers; that they would neither love nor trust one

another, but on the contrary would be a prey to discord, jealousy,

and mutual injuries; in short, that they would place us exactly in

the situations in which some nations doubtless wish to see us, viz.,

FORMIDABLE ONLY TO EACH OTHER.

From these considerations it appears that those gentlemen are

greatly mistaken who suppose that alliances offensive and defensive

might be formed between these confederacies, and would produce that

combination and union of wills of arms and of resources, which would

be necessary to put and keep them in a formidable state of defense

against foreign enemies.

When did the independent states, into which Britain and Spain

were formerly divided, combine in such alliance, or unite their

forces against a foreign enemy? The proposed confederacies will be

DISTINCT NATIONS. Each of them would have its commerce with

foreigners to regulate by distinct treaties; and as their

productions and commodities are different and proper for different

markets, so would those treaties be essentially different.

Different commercial concerns must create different interests, and

of course different degrees of political attachment to and

connection with different foreign nations. Hence it might and

probably would happen that the foreign nation with whom the SOUTHERN

confederacy might be at war would be the one with whom the NORTHERN

confederacy would be the most desirous of preserving peace and

friendship. An alliance so contrary to their immediate interest

would not therefore be easy to form, nor, if formed, would it be

observed and fulfilled with perfect good faith.

Nay, it is far more probable that in America, as in Europe,

neighboring nations, acting under the impulse of opposite interests

and unfriendly passions, would frequently be found taking different

sides. Considering our distance from Europe, it would be more

natural for these confederacies to apprehend danger from one another

than from distant nations, and therefore that each of them should be

more desirous to guard against the others by the aid of foreign

alliances, than to guard against foreign dangers by alliances

between themselves. And here let us not forget how much more easy

it is to receive foreign fleets into our ports, and foreign armies

into our country, than it is to persuade or compel them to depart.

How many conquests did the Romans and others make in the characters

of allies, and what innovations did they under the same character

introduce into the governments of those whom they pretended to

protect.

Let candid men judge, then, whether the division of America into

any given number of independent sovereignties would tend to secure

us against the hostilities and improper interference of foreign

nations.

PUBLIUS.

 

FEDERALIST No. 6

Concerning Dangers from Dissensions Between the States

For the Independent Journal.

HAMILTON

To the People of the State of New York:

THE three last numbers of this paper have been dedicated to an

enumeration of the dangers to which we should be exposed, in a state

of disunion, from the arms and arts of foreign nations. I shall now

proceed to delineate dangers of a different and, perhaps, still more

alarming kind--those which will in all probability flow from

dissensions between the States themselves, and from domestic

factions and convulsions. These have been already in some instances

slightly anticipated; but they deserve a more particular and more

full investigation.

A man must be far gone in Utopian speculations who can seriously

doubt that, if these States should either be wholly disunited, or

only united in partial confederacies, the subdivisions into which

they might be thrown would have frequent and violent contests with

each other. To presume a want of motives for such contests as an

argument against their existence, would be to forget that men are

ambitious, vindictive, and rapacious. To look for a continuation of

harmony between a number of independent, unconnected sovereignties

in the same neighborhood, would be to disregard the uniform course

of human events, and to set at defiance the accumulated experience

of ages.

The causes of hostility among nations are innumerable. There

are some which have a general and almost constant operation upon the

collective bodies of society. Of this description are the love of

power or the desire of pre-eminence and dominion--the jealousy of

power, or the desire of equality and safety. There are others which

have a more circumscribed though an equally operative influence

within their spheres. Such are the rivalships and competitions of

commerce between commercial nations. And there are others, not less

numerous than either of the former, which take their origin entirely

in private passions; in the attachments, enmities, interests,

hopes, and fears of leading individuals in the communities of which

they are members. Men of this class, whether the favorites of a

king or of a people, have in too many instances abused the

confidence they possessed; and assuming the pretext of some public

motive, have not scrupled to sacrifice the national tranquillity to

personal advantage or personal gratification.

The celebrated Pericles, in compliance with the resentment of a

prostitute,1 at the expense of much of the blood and treasure of

his countrymen, attacked, vanquished, and destroyed the city of the

SAMNIANS. The same man, stimulated by private pique against the

MEGARENSIANS,2 another nation of Greece, or to avoid a

prosecution with which he was threatened as an accomplice of a

supposed theft of the statuary Phidias,3 or to get rid of the

accusations prepared to be brought against him for dissipating the

funds of the state in the purchase of popularity,4 or from a

combination of all these causes, was the primitive author of that

famous and fatal war, distinguished in the Grecian annals by the

name of the PELOPONNESIAN war; which, after various vicissitudes,

intermissions, and renewals, terminated in the ruin of the Athenian

commonwealth.

The ambitious cardinal, who was prime minister to Henry VIII.,

permitting his vanity to aspire to the triple crown,5

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,6 the

petulance of another,7 and the cabals of a third,8 had in

the contemporary policy, ferments, and pacifications, of a

considerable part of Europe, are topics that have been too often

descanted upon not to be generally known.

To multiply examples of the agency of personal considerations in

the production of great national events, either foreign or domestic,

according to their direction, would be an unnecessary waste of time.

Those who have but a superficial acquaintance with the sources from

which they are to be drawn, will themselves recollect a variety of

instances; and those who have a tolerable knowledge of human nature

will not stand in need of such lights to form their opinion either

of the reality or extent of that agency. Perhaps, however, a

reference, tending to illustrate the general principle, may with

propriety be made to a case which has lately happened among

ourselves. If Shays had not been a DESPERATE DEBTOR, it is much to

be doubted whether Massachusetts would have been plunged into a

civil war.

But notwithstanding the concurring testimony of experience, in

this particular, there are still to be found visionary or designing

men, who stand ready to advocate the paradox of perpetual peace

between the States, though dismembered and alienated from each other.

The genius of republics (say they) is pacific; the spirit of

commerce has a tendency to soften the manners of men, and to

extinguish those inflammable humors which have so often kindled into

wars. Commercial republics, like ours, will never be disposed to

waste themselves in ruinous contentions with each other. They will

be governed by mutual interest, and will cultivate a spirit of

mutual amity and concord.

Is it not (we may ask these projectors in politics) the true

interest of all nations to cultivate the same benevolent and

philosophic spirit? If this be their true interest, have they in

fact pursued it? Has it not, on the contrary, invariably been found

that momentary passions, and immediate interest, have a more active

and imperious control over human conduct than general or remote

considerations of policy, utility or justice? Have republics in

practice been less addicted to war than monarchies? Are not the

former administered by MEN as well as the latter? Are there not

aversions, predilections, rivalships, and desires of unjust

acquisitions, that affect nations as well as kings? Are not popular

assemblies frequently subject to the impulses of rage, resentment,

jealousy, avarice, and of other irregular and violent propensities?

Is it not well known that their determinations are often governed

by a few individuals in whom they place confidence, and are, of

course, liable to be tinctured by the passions and views of those

individuals? Has commerce hitherto done anything more than change

the objects of war? Is not the love of wealth as domineering and

enterprising a passion as that of power or glory? Have there not

been as many wars founded upon commercial motives since that has

become the prevailing system of nations, as were before occasioned

by the cupidity of territory or dominion? Has not the spirit of

commerce, in many instances, administered new incentives to the

appetite, both for the one and for the other? Let experience, the

least fallible guide of human opinions, be appealed to for an answer

to these inquiries.

Sparta, Athens, Rome, and Carthage were all republics; two of

them, Athens and Carthage, of the commercial kind. Yet were they as

often engaged in wars, offensive and defensive, as the neighboring

monarchies of the same times. Sparta was little better than a

wellregulated camp; and Rome was never sated of carnage and

conquest.

Carthage, though a commercial republic, was the aggressor in the

very war that ended in her destruction. Hannibal had carried her

arms into the heart of Italy and to the gates of Rome, before

Scipio, in turn, gave him an overthrow in the territories of

Carthage, and made a conquest of the commonwealth.

Venice, in later times, figured more than once in wars of

ambition, till, becoming an object to the other Italian states, Pope

Julius II. found means to accomplish that formidable league,9

which gave a deadly blow to the power and pride of this haughty

republic.

The provinces of Holland, till they were overwhelmed in debts

and taxes, took a leading and conspicuous part in the wars of Europe.

They had furious contests with England for the dominion of the

sea, and were among the most persevering and most implacable of the

opponents of Louis XIV.

In the government of Britain the representatives of the people

compose one branch of the national legislature. Commerce has been

for ages the predominant pursuit of that country. Few nations,

nevertheless, have been more frequently engaged in war; and the

wars in which that kingdom has been engaged have, in numerous

instances, proceeded from the people.

There have been, if I may so express it, almost as many popular

as royal wars. The cries of the nation and the importunities of

their representatives have, upon various occasions, dragged their

monarchs into war, or continued them in it, contrary to their

inclinations, and sometimes contrary to the real interests of the

State. In that memorable struggle for superiority between the rival

houses of AUSTRIA and BOURBON, which so long kept Europe in a flame,

it is well known that the antipathies of the English against the

French, seconding the ambition, or rather the avarice, of a favorite

leader,10 protracted the war beyond the limits marked out by

sound policy, and for a considerable time in opposition to the views

of the court.

The wars of these two last-mentioned nations have in a great

measure grown out of commercial considerations,--the desire of

supplanting and the fear of being supplanted, either in particular

branches of traffic or in the general advantages of trade and

navigation.

From this summary of what has taken place in other countries,

whose situations have borne the nearest resemblance to our own, what

reason can we have to confide in those reveries which would seduce

us into an expectation of peace and cordiality between the members

of the present confederacy, in a state of separation? Have we not

already seen enough of the fallacy and extravagance of those idle

theories which have amused us with promises of an exemption from the

imperfections, weaknesses and evils incident to society in every

shape? Is it not time to awake from the deceitful dream of a golden

age, and to adopt as a practical maxim for the direction of our

political conduct that we, as well as the other inhabitants of the

globe, are yet remote from the happy empire of perfect wisdom and

perfect virtue?

Let the point of extreme depression to which our national

dignity and credit have sunk, let the inconveniences felt everywhere

from a lax and ill administration of government, let the revolt of a

part of the State of North Carolina, the late menacing disturbances

in Pennsylvania, and the actual insurrections and rebellions in

Massachusetts, declare--!

So far is the general sense of mankind from corresponding with

the tenets of those who endeavor to lull asleep our apprehensions of

discord and hostility between the States, in the event of disunion,

that it has from long observation of the progress of society become

a sort of axiom in politics, that vicinity or nearness of situation,

constitutes nations natural enemies. An intelligent writer

expresses himself on this subject to this effect: ``NEIGHBORING

NATIONS (says he) are naturally enemies of each other unless their

common weakness forces them to league in a CONFEDERATE REPUBLIC, and

their constitution prevents the differences that neighborhood

occasions, extinguishing that secret jealousy which disposes all

states to aggrandize themselves at the expense of their

neighbors.''11 This passage, at the same time, points out the

EVIL and suggests the REMEDY.

PUBLIUS.

1 Aspasia, vide ``Plutarch's Life of Pericles.''

2 Ibid.

3 Ibid.

4 ] Ibid. Phidias was supposed to have stolen some public

gold, with the connivance of Pericles, for the embellishment of the

statue of Minerva.

5 P Worn by the popes.

6 Madame de Maintenon.

7 Duchess of Marlborough.

8 Madame de Pompadour.

9 The League of Cambray, comprehending the Emperor, the King of

France, the King of Aragon, and most of the Italian princes and

states.

10 The Duke of Marlborough.

11 Vide ``Principes des Negociations'' par 1'Abbe de Mably.

 

FEDERALIST. No. 7

The Same Subject Continued

(Concerning Dangers from Dissensions Between the States)

For the Independent Journal.

HAMILTON

To the People of the State of New York:

IT IS sometimes asked, with an air of seeming triumph, what

inducements could the States have, if disunited, to make war upon

each other? It would be a full answer to this question to

say--precisely the same inducements which have, at different times,

deluged in blood all the nations in the world. But, unfortunately

for us, the question admits of a more particular answer. There are

causes of differences within our immediate contemplation, of the

tendency of which, even under the restraints of a federal

constitution, we have had sufficient experience to enable us to form

a judgment of what might be expected if those restraints were

removed.

Territorial disputes have at all times been found one of the

most fertile sources of hostility among nations. Perhaps the

greatest proportion of wars that have desolated the earth have

sprung from this origin. This cause would exist among us in full

force. We have a vast tract of unsettled territory within the

boundaries of the United States. There still are discordant and

undecided claims between several of them, and the dissolution of the

Union would lay a foundation for similar claims between them all.

It is well known that they have heretofore had serious and animated

discussion concerning the rights to the lands which were ungranted

at the time of the Revolution, and which usually went under the name

of crown lands. The States within the limits of whose colonial

governments they were comprised have claimed them as their property,

the others have contended that the rights of the crown in this

article devolved upon the Union; especially as to all that part of

the Western territory which, either by actual possession, or through

the submission of the Indian proprietors, was subjected to the

jurisdiction of the king of Great Britain, till it was relinquished

in the treaty of peace. This, it has been said, was at all events

an acquisition to the Confederacy by compact with a foreign power.

It has been the prudent policy of Congress to appease this

controversy, by prevailing upon the States to make cessions to the

United States for the benefit of the whole. This has been so far

accomplished as, under a continuation of the Union, to afford a

decided prospect of an amicable termination of the dispute. A

dismemberment of the Confederacy, however, would revive this

dispute, and would create others on the same subject. At present, a

large part of the vacant Western territory is, by cession at least,

if not by any anterior right, the common property of the Union. If

that were at an end, the States which made the cession, on a

principle of federal compromise, would be apt when the motive of the

grant had ceased, to reclaim the lands as a reversion. The other

States would no doubt insist on a proportion, by right of

representation. Their argument would be, that a grant, once made,

could not be revoked; and that the justice of participating in

territory acquired or secured by the joint efforts of the

Confederacy, remained undiminished. If, contrary to probability, it

should be admitted by all the States, that each had a right to a

share of this common stock, there would still be a difficulty to be

surmounted, as to a proper rule of apportionment. Different

principles would be set up by different States for this purpose;

and as they would affect the opposite interests of the parties,

they might not easily be susceptible of a pacific adjustment.

In the wide field of Western territory, therefore, we perceive

an ample theatre for hostile pretensions, without any umpire or

common judge to interpose between the contending parties. To reason

from the past to the future, we shall have good ground to apprehend,

that the sword would sometimes be appealed to as the arbiter of

their differences. The circumstances of the dispute between

Connecticut and Pennsylvania, respecting the land at Wyoming,

admonish us not to be sanguine in expecting an easy accommodation of

such differences. The articles of confederation obliged the parties

to submit the matter to the decision of a federal court. The

submission was made, and the court decided in favor of Pennsylvania.

But Connecticut gave strong indications of dissatisfaction with

that determination; nor did she appear to be entirely resigned to

it, till, by negotiation and management, something like an

equivalent was found for the loss she supposed herself to have

sustained. Nothing here said is intended to convey the slightest

censure on the conduct of that State. She no doubt sincerely

believed herself to have been injured by the decision; and States,

like individuals, acquiesce with great reluctance in determinations

to their disadvantage.

Those who had an opportunity of seeing the inside of the

transactions which attended the progress of the controversy between

this State and the district of Vermont, can vouch the opposition we

experienced, as well from States not interested as from those which

were interested in the claim; and can attest the danger to which

the peace of the Confederacy might have been exposed, had this State

attempted to assert its rights by force. Two motives preponderated

in that opposition: one, a jealousy entertained of our future

power; and the other, the interest of certain individuals of

influence in the neighboring States, who had obtained grants of

lands under the actual government of that district. Even the States

which brought forward claims, in contradiction to ours, seemed more

solicitous to dismember this State, than to establish their own

pretensions. These were New Hampshire, Massachusetts, and

Connecticut. New Jersey and Rhode Island, upon all occasions,

discovered a warm zeal for the independence of Vermont; and

Maryland, till alarmed by the appearance of a connection between

Canada and that State, entered deeply into the same views. These

being small States, saw with an unfriendly eye the perspective of

our growing greatness. In a review of these transactions we may

trace some of the causes which would be likely to embroil the States

with each other, if it should be their unpropitious destiny to

become disunited.

The competitions of commerce would be another fruitful source of

contention. The States less favorably circumstanced would be

desirous of escaping from the disadvantages of local situation, and

of sharing in the advantages of their more fortunate neighbors.

Each State, or separate confederacy, would pursue a system of

commercial policy peculiar to itself. This would occasion

distinctions, preferences, and exclusions, which would beget

discontent. The habits of intercourse, on the basis of equal

privileges, to which we have been accustomed since the earliest

settlement of the country, would give a keener edge to those causes

of discontent than they would naturally have independent of this

circumstance. WE SHOULD BE READY TO DENOMINATE INJURIES THOSE

THINGS WHICH WERE IN REALITY THE JUSTIFIABLE ACTS OF INDEPENDENT

SOVEREIGNTIES CONSULTING A DISTINCT INTEREST. The spirit of

enterprise, which characterizes the commercial part of America, has

left no occasion of displaying itself unimproved. It is not at all

probable that this unbridled spirit would pay much respect to those

regulations of trade by which particular States might endeavor to

secure exclusive benefits to their own citizens. The infractions of

these regulations, on one side, the efforts to prevent and repel

them, on the other, would naturally lead to outrages, and these to

reprisals and wars.

The opportunities which some States would have of rendering

others tributary to them by commercial regulations would be

impatiently submitted to by the tributary States. The relative

situation of New York, Connecticut, and New Jersey would afford an

example of this kind. New York, from the necessities of revenue,

must lay duties on her importations. A great part of these duties

must be paid by the inhabitants of the two other States in the

capacity of consumers of what we import. New York would neither be

willing nor able to forego this advantage. Her citizens would not

consent that a duty paid by them should be remitted in favor of the

citizens of her neighbors; nor would it be practicable, if there

were not this impediment in the way, to distinguish the customers in

our own markets. Would Connecticut and New Jersey long submit to be

taxed by New York for her exclusive benefit? Should we be long

permitted to remain in the quiet and undisturbed enjoyment of a

metropolis, from the possession of which we derived an advantage so

odious to our neighbors, and, in their opinion, so oppressive?

Should we be able to preserve it against the incumbent weight of

Connecticut on the one side, and the co-operating pressure of New

Jersey on the other? These are questions that temerity alone will

answer in the affirmative.

The public debt of the Union would be a further cause of

collision between the separate States or confederacies. The

apportionment, in the first instance, and the progressive

extinguishment afterward, would be alike productive of ill-humor and

animosity. How would it be possible to agree upon a rule of

apportionment satisfactory to all? There is scarcely any that can

be proposed which is entirely free from real objections. These, as

usual, would be exaggerated by the adverse interest of the parties.

There are even dissimilar views among the States as to the general

principle of discharging the public debt. Some of them, either less

impressed with the importance of national credit, or because their

citizens have little, if any, immediate interest in the question,

feel an indifference, if not a repugnance, to the payment of the

domestic debt at any rate. These would be inclined to magnify the

difficulties of a distribution. Others of them, a numerous body of

whose citizens are creditors to the public beyond proportion of the

State in the total amount of the national debt, would be strenuous

for some equitable and effective provision. The procrastinations of

the former would excite the resentments of the latter. The

settlement of a rule would, in the meantime, be postponed by real

differences of opinion and affected delays. The citizens of the

States interested would clamour; foreign powers would urge for the

satisfaction of their just demands, and the peace of the States

would be hazarded to the double contingency of external invasion and

internal contention.

Suppose the difficulties of agreeing upon a rule surmounted, and

the apportionment made. Still there is great room to suppose that

the rule agreed upon would, upon experiment, be found to bear harder

upon some States than upon others. Those which were sufferers by it

would naturally seek for a mitigation of the burden. The others

would as naturally be disinclined to a revision, which was likely to

end in an increase of their own incumbrances. Their refusal would

be too plausible a pretext to the complaining States to withhold

their contributions, not to be embraced with avidity; and the

non-compliance of these States with their engagements would be a

ground of bitter discussion and altercation. If even the rule

adopted should in practice justify the equality of its principle,

still delinquencies in payments on the part of some of the States

would result from a diversity of other causes--the real deficiency of

resources; the mismanagement of their finances; accidental

disorders in the management of the government; and, in addition to

the rest, the reluctance with which men commonly part with money for

purposes that have outlived the exigencies which produced them, and

interfere with the supply of immediate wants. Delinquencies, from

whatever causes, would be productive of complaints, recriminations,

and quarrels. There is, perhaps, nothing more likely to disturb the

tranquillity of nations than their being bound to mutual

contributions for any common object that does not yield an equal and

coincident benefit. For it is an observation, as true as it is

trite, that there is nothing men differ so readily about as the

payment of money.

Laws in violation of private contracts, as they amount to

aggressions on the rights of those States whose citizens are injured

by them, may be considered as another probable source of hostility.

We are not authorized to expect that a more liberal or more

equitable spirit would preside over the legislations of the

individual States hereafter, if unrestrained by any additional

checks, than we have heretofore seen in too many instances

disgracing their several codes. We have observed the disposition to

retaliation excited in Connecticut in consequence of the enormities

perpetrated by the Legislature of Rhode Island; and we reasonably

infer that, in similar cases, under other circumstances, a war, not

of PARCHMENT, but of the sword, would chastise such atrocious

breaches of moral obligation and social justice.

The probability of incompatible alliances between the different

States or confederacies and different foreign nations, and the

effects of this situation upon the peace of the whole, have been

sufficiently unfolded in some preceding papers. From the view they

have exhibited of this part of the subject, this conclusion is to be

drawn, that America, if not connected at all, or only by the feeble

tie of a simple league, offensive and defensive, would, by the

operation of such jarring alliances, be gradually entangled in all

the pernicious labyrinths of European politics and wars; and by the

destructive contentions of the parts into which she was divided,

would be likely to become a prey to the artifices and machinations

of powers equally the enemies of them all. Divide et

impera1 must be the motto of every nation that either hates or

fears us.2 PUBLIUS.

1 Divide and command.

2 In order that the whole subject of these papers may as soon as

possible be laid before the public, it is proposed to publish them

four times a week--on Tuesday in the New York Packet and on

Thursday in the Daily Advertiser.

 

FEDERALIST No. 8

The Consequences of Hostilities Between the States

From the New York Packet.

Tuesday, November 20, 1787.

HAMILTON

To the People of the State of New York:

ASSUMING it therefore as an established truth that the several

States, in case of disunion, or such combinations of them as might

happen to be formed out of the wreck of the general Confederacy,

would be subject to those vicissitudes of peace and war, of

friendship and enmity, with each other, which have fallen to the lot

of all neighboring nations not united under one government, let us

enter into a concise detail of some of the consequences that would

attend such a situation.

War between the States, in the first period of their separate

existence, would be accompanied with much greater distresses than it

commonly is in those countries where regular military establishments

have long obtained. The disciplined armies always kept on foot on

the continent of Europe, though they bear a malignant aspect to

liberty and economy, have, notwithstanding, been productive of the

signal advantage of rendering sudden conquests impracticable, and of

preventing that rapid desolation which used to mark the progress of

war prior to their introduction. The art of fortification has

contributed to the same ends. The nations of Europe are encircled

with chains of fortified places, which mutually obstruct invasion.

Campaigns are wasted in reducing two or three frontier garrisons,

to gain admittance into an enemy's country. Similar impediments

occur at every step, to exhaust the strength and delay the progress

of an invader. Formerly, an invading army would penetrate into the

heart of a neighboring country almost as soon as intelligence of its

approach could be received; but now a comparatively small force of

disciplined troops, acting on the defensive, with the aid of posts,

is able to impede, and finally to frustrate, the enterprises of one

much more considerable. The history of war, in that quarter of the

globe, is no longer a history of nations subdued and empires

overturned, but of towns taken and retaken; of battles that decide

nothing; of retreats more beneficial than victories; of much

effort and little acquisition.

In this country the scene would be altogether reversed. The

jealousy of military establishments would postpone them as long as

possible. The want of fortifications, leaving the frontiers of one

state open to another, would facilitate inroads. The populous

States would, with little difficulty, overrun their less populous

neighbors. Conquests would be as easy to be made as difficult to be

retained. War, therefore, would be desultory and predatory.

PLUNDER and devastation ever march in the train of irregulars. The

calamities of individuals would make the principal figure in the

events which would characterize our military exploits.

This picture is not too highly wrought; though, I confess, it

would not long remain a just one. Safety from external danger is

the most powerful director of national conduct. Even the ardent

love of liberty will, after a time, give way to its dictates. The

violent destruction of life and property incident to war, the

continual effort and alarm attendant on a state of continual danger,

will compel nations the most attached to liberty to resort for

repose and security to institutions which have a tendency to destroy

their civil and political rights. To be more safe, they at length

become willing to run the risk of being less free.

The institutions chiefly alluded to are STANDING ARMIES and the

correspondent appendages of military establishments. Standing

armies, it is said, are not provided against in the new

Constitution; and it is therefore inferred that they may exist

under it.1 Their existence, however, from the very terms of the

proposition, is, at most, problematical and uncertain. But standing

armies, it may be replied, must inevitably result from a dissolution

of the Confederacy. Frequent war and constant apprehension, which

require a state of as constant preparation, will infallibly produce

them. The weaker States or confederacies would first have recourse

to them, to put themselves upon an equality with their more potent

neighbors. They would endeavor to supply the inferiority of

population and resources by a more regular and effective system of

defense, by disciplined troops, and by fortifications. They would,

at the same time, be necessitated to strengthen the executive arm of

government, in doing which their constitutions would acquire a

progressive direction toward monarchy. It is of the nature of war

to increase the executive at the expense of the legislative

authority.

The expedients which have been mentioned would soon give the

States or confederacies that made use of them a superiority over

their neighbors. Small states, or states of less natural strength,

under vigorous governments, and with the assistance of disciplined

armies, have often triumphed over large states, or states of greater

natural strength, which have been destitute of these advantages.

Neither the pride nor the safety of the more important States or

confederacies would permit them long to submit to this mortifying

and adventitious superiority. They would quickly resort to means

similar to those by which it had been effected, to reinstate

themselves in their lost pre-eminence. Thus, we should, in a little

time, see established in every part of this country the same engines

of despotism which have been the scourge of the Old World. This, at

least, would be the natural course of things; and our reasonings

will be the more likely to be just, in proportion as they are

accommodated to this standard.

These are not vague inferences drawn from supposed or

speculative defects in a Constitution, the whole power of which is

lodged in the hands of a people, or their representatives and

delegates, but they are solid conclusions, drawn from the natural

and necessary progress of human affairs.

It may, perhaps, be asked, by way of objection to this, why did

not standing armies spring up out of the contentions which so often

distracted the ancient republics of Greece? Different answers,

equally satisfactory, may be given to this question. The

industrious habits of the people of the present day, absorbed in the

pursuits of gain, and devoted to the improvements of agriculture and

commerce, are incompatible with the condition of a nation of

soldiers, which was the true condition of the people of those

republics. The means of revenue, which have been so greatly

multiplied by the increase of gold and silver and of the arts of

industry, and the science of finance, which is the offspring of

modern times, concurring with the habits of nations, have produced

an entire revolution in the system of war, and have rendered

disciplined armies, distinct from the body of the citizens, the

inseparable companions of frequent hostility.

There is a wide difference, also, between military

establishments in a country seldom exposed by its situation to

internal invasions, and in one which is often subject to them, and

always apprehensive of them. The rulers of the former can have a

good pretext, if they are even so inclined, to keep on foot armies

so numerous as must of necessity be maintained in the latter. These

armies being, in the first case, rarely, if at all, called into

activity for interior defense, the people are in no danger of being

broken to military subordination. The laws are not accustomed to

relaxations, in favor of military exigencies; the civil state

remains in full vigor, neither corrupted, nor confounded with the

principles or propensities of the other state. The smallness of the

army renders the natural strength of the community an over-match for

it; and the citizens, not habituated to look up to the military

power for protection, or to submit to its oppressions, neither love

nor fear the soldiery; they view them with a spirit of jealous

acquiescence in a necessary evil, and stand ready to resist a power

which they suppose may be exerted to the prejudice of their rights.

The army under such circumstances may usefully aid the magistrate

to suppress a small faction, or an occasional mob, or insurrection;

but it will be unable to enforce encroachments against the united

efforts of the great body of the people.

In a country in the predicament last described, the contrary of

all this happens. The perpetual menacings of danger oblige the

government to be always prepared to repel it; its armies must be

numerous enough for instant defense. The continual necessity for

their services enhances the importance of the soldier, and

proportionably degrades the condition of the citizen. The military

state becomes elevated above the civil. The inhabitants of

territories, often the theatre of war, are unavoidably subjected to

frequent infringements on their rights, which serve to weaken their

sense of those rights; and by degrees the people are brought to

consider the soldiery not only as their protectors, but as their

superiors. The transition from this disposition to that of

considering them masters, is neither remote nor difficult; but it

is very difficult to prevail upon a people under such impressions,

to make a bold or effectual resistance to usurpations supported by

the military power.

The kingdom of Great Britain falls within the first description.

An insular situation, and a powerful marine, guarding it in a great

measure against the possibility of foreign invasion, supersede the

necessity of a numerous army within the kingdom. A sufficient force

to make head against a sudden descent, till the militia could have

time to rally and embody, is all that has been deemed requisite. No

motive of national policy has demanded, nor would public opinion

have tolerated, a larger number of troops upon its domestic

establishment. There has been, for a long time past, little room

for the operation of the other causes, which have been enumerated as

the consequences of internal war. This peculiar felicity of

situation has, in a great degree, contributed to preserve the

liberty which that country to this day enjoys, in spite of the

prevalent venality and corruption. If, on the contrary, Britain had

been situated on the continent, and had been compelled, as she would

have been, by that situation, to make her military establishments at

home coextensive with those of the other great powers of Europe,

she, like them, would in all probability be, at this day, a victim

to the absolute power of a single man. 'T is possible, though not

easy, that the people of that island may be enslaved from other

causes; but it cannot be by the prowess of an army so

inconsiderable as that which has been usually kept up within the

kingdom.

If we are wise enough to preserve the Union we may for ages

enjoy an advantage similar to that of an insulated situation.

Europe is at a great distance from us. Her colonies in our

vicinity will be likely to continue too much disproportioned in

strength to be able to give us any dangerous annoyance. Extensive

military establishments cannot, in this position, be necessary to

our security. But if we should be disunited, and the integral parts

should either remain separated, or, which is most probable, should

be thrown together into two or three confederacies, we should be, in

a short course of time, in the predicament of the continental powers

of Europe --our liberties would be a prey to the means of defending

ourselves against the ambition and jealousy of each other.

This is an idea not superficial or futile, but solid and weighty.

It deserves the most serious and mature consideration of every

prudent and honest man of whatever party. If such men will make a

firm and solemn pause, and meditate dispassionately on the

importance of this interesting idea; if they will contemplate it in

all its attitudes, and trace it to all its consequences, they will

not hesitate to part with trivial objections to a Constitution, the

rejection of which would in all probability put a final period to

the Union. The airy phantoms that flit before the distempered

imaginations of some of its adversaries would quickly give place to

the more substantial forms of dangers, real, certain, and formidable.

PUBLIUS.

1 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.

 

FEDERALIST No. 9

The Union as a Safeguard Against Domestic Faction and Insurrection

For the Independent Journal.

HAMILTON

To the People of the State of New York:

A FIRM Union will be of the utmost moment to the peace and

liberty of the States, as a barrier against domestic faction and

insurrection. It is impossible to read the history of the petty

republics of Greece and Italy without feeling sensations of horror

and disgust at the distractions with which they were continually

agitated, and at the rapid succession of revolutions by which they

were kept in a state of perpetual vibration between the extremes of

tyranny and anarchy. If they exhibit occasional calms, these only

serve as short-lived contrast to the furious storms that are to

succeed. If now and then intervals of felicity open to view, we

behold them with a mixture of regret, arising from the reflection

that the pleasing scenes before us are soon to be overwhelmed by the

tempestuous waves of sedition and party rage. If momentary rays of

glory break forth from the gloom, while they dazzle us with a

transient and fleeting brilliancy, they at the same time admonish us

to lament that the vices of government should pervert the direction

and tarnish the lustre of those bright talents and exalted

endowments for which the favored soils that produced them have been

so justly celebrated.

From the disorders that disfigure the annals of those republics

the advocates of despotism have drawn arguments, not only against

the forms of republican government, but against the very principles

of civil liberty. They have decried all free government as

inconsistent with the order of society, and have indulged themselves

in malicious exultation over its friends and partisans. Happily for

mankind, stupendous fabrics reared on the basis of liberty, which

have flourished for ages, have, in a few glorious instances, refuted

their gloomy sophisms. And, I trust, America will be the broad and

solid foundation of other edifices, not less magnificent, which will

be equally permanent monuments of their errors.

But it is not to be denied that the portraits they have sketched

of republican government were too just copies of the originals from

which they were taken. If it had been found impracticable to have

devised models of a more perfect structure, the enlightened friends

to liberty would have been obliged to abandon the cause of that

species of government as indefensible. The science of politics,

however, like most other sciences, has received great improvement.

The efficacy of various principles is now well understood, which

were either not known at all, or imperfectly known to the ancients.

The regular distribution of power into distinct departments; the

introduction of legislative balances and checks; the institution of

courts composed of judges holding their offices during good

behavior; the representation of the people in the legislature by

deputies of their own election: these are wholly new discoveries,

or have made their principal progress towards perfection in modern

times. They are means, and powerful means, by which the excellences

of republican government may be retained and its imperfections

lessened or avoided. To this catalogue of circumstances that tend

to the amelioration of popular systems of civil government, I shall

venture, however novel it may appear to some, to add one more, on a

principle which has been made the foundation of an objection to the

new Constitution; I mean the ENLARGEMENT of the ORBIT within which

such systems are to revolve, either in respect to the dimensions of

a single State or to the consolidation of several smaller States

into one great Confederacy. The latter is that which immediately

concerns the object under consideration. It will, however, be of

use to examine the principle in its application to a single State,

which shall be attended to in another place.

The utility of a Confederacy, as well to suppress faction and to

guard the internal tranquillity of States, as to increase their

external force and security, is in reality not a new idea. It has

been practiced upon in different countries and ages, and has

received the sanction of the most approved writers on the subject of

politics. The opponents of the plan proposed have, with great

assiduity, cited and circulated the observations of Montesquieu on

the necessity of a contracted territory for a republican government.

But they seem not to have been apprised of the sentiments of that

great man expressed in another part of his work, nor to have

adverted to the consequences of the principle to which they

subscribe with such ready acquiescence.

When Montesquieu recommends a small extent for republics, the

standards he had in view were of dimensions far short of the limits

of almost every one of these States. Neither Virginia,

Massachusetts, Pennsylvania, New York, North Carolina, nor Georgia

can by any means be compared with the models from which he reasoned

and to which the terms of his description apply. If we therefore

take his ideas on this point as the criterion of truth, we shall be

driven to the alternative either of taking refuge at once in the

arms of monarchy, or of splitting ourselves into an infinity of

little, jealous, clashing, tumultuous commonwealths, the wretched

nurseries of unceasing discord, and the miserable objects of

universal pity or contempt. Some of the writers who have come

forward on the other side of the question seem to have been aware of

the dilemma; and have even been bold enough to hint at the division

of the larger States as a desirable thing. Such an infatuated

policy, such a desperate expedient, might, by the multiplication of

petty offices, answer the views of men who possess not

qualifications to extend their influence beyond the narrow circles

of personal intrigue, but it could never promote the greatness or

happiness of the people of America.

Referring the examination of the principle itself to another

place, as has been already mentioned, it will be sufficient to

remark here that, in the sense of the author who has been most

emphatically quoted upon the occasion, it would only dictate a

reduction of the SIZE of the more considerable MEMBERS of the Union,

but would not militate against their being all comprehended in one

confederate government. And this is the true question, in the

discussion of which we are at present interested.

So far are the suggestions of Montesquieu from standing in

opposition to a general Union of the States, that he explicitly

treats of a CONFEDERATE REPUBLIC as the expedient for extending the

sphere of popular government, and reconciling the advantages of

monarchy with those of republicanism.

``It is very probable,'' (says he1) ``that mankind would

have been obliged at length to live constantly under the government

of a single person, had they not contrived a kind of constitution

that has all the internal advantages of a republican, together with

the external force of a monarchical government. I mean a

CONFEDERATE REPUBLIC.

``This form of government is a convention by which several

smaller STATES agree to become members of a larger ONE, which they

intend to form. It is a kind of assemblage of societies that

constitute a new one, capable of increasing, by means of new

associations, till they arrive to such a degree of power as to be

able to provide for the security of the united body.

``A republic of this kind, able to withstand an external force,

may support itself without any internal corruptions. The form of

this society prevents all manner of inconveniences.

``If a single member should attempt to usurp the supreme

authority, he could not be supposed to have an equal authority and

credit in all the confederate states. Were he to have too great

influence over one, this would alarm the rest. Were he to subdue a

part, that which would still remain free might oppose him with

forces independent of those which he had usurped and overpower him

before he could be settled in his usurpation.

``Should a popular insurrection happen in one of the confederate

states the others are able to quell it. Should abuses creep into

one part, they are reformed by those that remain sound. The state

may be destroyed on one side, and not on the other; the confederacy

may be dissolved, and the confederates preserve their sovereignty.

``As this government is composed of small republics, it enjoys

the internal happiness of each; and with respect to its external

situation, it is possessed, by means of the association, of all the

advantages of large monarchies.''

I have thought it proper to quote at length these interesting

passages, because they contain a luminous abridgment of the

principal arguments in favor of the Union, and must effectually

remove the false impressions which a misapplication of other parts

of the work was calculated to make. They have, at the same time, an

intimate connection with the more immediate design of this paper;

which is, to illustrate the tendency of the Union to repress

domestic faction and insurrection.

A distinction, more subtle than accurate, has been raised

between a CONFEDERACY and a CONSOLIDATION of the States. The

essential characteristic of the first is said to be, the restriction

of its authority to the members in their collective capacities,

without reaching to the individuals of whom they are composed. It

is contended that the national council ought to have no concern with

any object of internal administration. An exact equality of

suffrage between the members has also been insisted upon as a

leading feature of a confederate government. These positions are,

in the main, arbitrary; they are supported neither by principle nor

precedent. It has indeed happened, that governments of this kind

have generally operated in the manner which the distinction taken

notice of, supposes to be inherent in their nature; but there have

been in most of them extensive exceptions to the practice, which

serve to prove, as far as example will go, that there is no absolute

rule on the subject. And it will be clearly shown in the course of

this investigation that as far as the principle contended for has

prevailed, it has been the cause of incurable disorder and

imbecility in the government.

The definition of a CONFEDERATE REPUBLIC seems simply to be ``an

assemblage of societies,'' or an association of two or more states

into one state. The extent, modifications, and objects of the

federal authority are mere matters of discretion. So long as the

separate organization of the members be not abolished; so long as

it exists, by a constitutional necessity, for local purposes;

though it should be in perfect subordination to the general

authority of the union, it would still be, in fact and in theory, an

association of states, or a confederacy. The proposed Constitution,

so far from implying an abolition of the State governments, makes

them constituent parts of the national sovereignty, by allowing them

a direct representation in the Senate, and leaves in their

possession certain exclusive and very important portions of

sovereign power. This fully corresponds, in every rational import

of the terms, with the idea of a federal government.

In the Lycian confederacy, which consisted of twenty-three

CITIES or republics, the largest were entitled to THREE votes in the

COMMON COUNCIL, those of the middle class to TWO, and the smallest

to ONE. The COMMON COUNCIL had the appointment of all the judges

and magistrates of the respective CITIES. This was certainly the

most, delicate species of interference in their internal

administration; for if there be any thing that seems exclusively

appropriated to the local jurisdictions, it is the appointment of

their own officers. Yet Montesquieu, speaking of this association,

says: ``Were I to give a model of an excellent Confederate

Republic, it would be that of Lycia.'' Thus we perceive that the

distinctions insisted upon were not within the contemplation of this

enlightened civilian; and we shall be led to conclude, that they

are the novel refinements of an erroneous theory.

PUBLIUS.

1 ``Spirit of Lawa,'' vol. i., book ix., chap. i.

 

FEDERALIST No. 10

The Same Subject Continued

(The Union as a Safeguard Against Domestic Faction and Insurrection)

From the New York Packet.

Friday, November 23, 1787.

MADISON

To the People of the State of New York:

AMONG the numerous advantages promised by a well constructed

Union, none deserves to be more accurately developed than its

tendency to break and control the violence of faction. The friend

of popular governments never finds himself so much alarmed for their

character and fate, as when he contemplates their propensity to this

dangerous vice. He will not fail, therefore, to set a due value on

any plan which, without violating the principles to which he is

attached, provides a proper cure for it. The instability,

injustice, and confusion introduced into the public councils, have,

in truth, been the mortal diseases under which popular governments

have everywhere perished; as they continue to be the favorite and

fruitful topics from which the adversaries to liberty derive their

most specious declamations. The valuable improvements made by the

American constitutions on the popular models, both ancient and

modern, cannot certainly be too much admired; but it would be an

unwarrantable partiality, to contend that they have as effectually

obviated the danger on this side, as was wished and expected.

Complaints are everywhere heard from our most considerate and

virtuous citizens, equally the friends of public and private faith,

and of public and personal liberty, that our governments are too

unstable, that the public good is disregarded in the conflicts of

rival parties, and that measures are too often decided, not

according to the rules of justice and the rights of the minor party,

but by the superior force of an interested and overbearing majority.

However anxiously we may wish that these complaints had no

foundation, the evidence, of known facts will not permit us to deny

that they are in some degree true. It will be found, indeed, on a

candid review of our situation, that some of the distresses under

which we labor have been erroneously charged on the operation of our

governments; but it will be found, at the same time, that other

causes will not alone account for many of our heaviest misfortunes;

and, particularly, for that prevailing and increasing distrust of

public engagements, and alarm for private rights, which are echoed

from one end of the continent to the other. These must be chiefly,

if not wholly, effects of the unsteadiness and injustice with which

a factious spirit has tainted our public administrations.

By a faction, I understand a number of citizens, whether

amounting to a majority or a minority of the whole, who are united

and actuated by some common impulse of passion, or of interest,

adversed to the rights of other citizens, or to the permanent and

aggregate interests of the community.

There are two methods of curing the mischiefs of faction: the

one, by removing its causes; the other, by controlling its effects.

There are again two methods of removing the causes of faction:

the one, by destroying the liberty which is essential to its

existence; the other, by giving to every citizen the same opinions,

the same passions, and the same interests.

It could never be more truly said than of the first remedy, that

it was worse than the disease. Liberty is to faction what air is to

fire, an aliment without which it instantly expires. But it could

not be less folly to abolish liberty, which is essential to

political life, because it nourishes faction, than it would be to

wish the annihilation of air, which is essential to animal life,

because it imparts to fire its destructive agency.

The second expedient is as impracticable as the first would be

unwise. As long as the reason of man continues fallible, and he is

at liberty to exercise it, different opinions will be formed. As

long as the connection subsists between his reason and his

self-love, his opinions and his passions will have a reciprocal

influence on each other; and the former will be objects to which

the latter will attach themselves. The diversity in the faculties

of men, from which the rights of property originate, is not less an

insuperable obstacle to a uniformity of interests. The protection

of these faculties is the first object of government. From the

protection of different and unequal faculties of acquiring property,

the possession of different degrees and kinds of property

immediately results; and from the influence of these on the

sentiments and views of the respective proprietors, ensues a

division of the society into different interests and parties.

The latent causes of faction are thus sown in the nature of man;

and we see them everywhere brought into different degrees of

activity, according to the different circumstances of civil society.

A zeal for different opinions concerning religion, concerning

government, and many other points, as well of speculation as of

practice; an attachment to different leaders ambitiously contending

for pre-eminence and power; or to persons of other descriptions

whose fortunes have been interesting to the human passions, have, in

turn, divided mankind into parties, inflamed them with mutual

animosity, and rendered them much more disposed to vex and oppress

each other than to co-operate for their common good. So strong is

this propensity of mankind to fall into mutual animosities, that

where no substantial occasion presents itself, the most frivolous

and fanciful distinctions have been sufficient to kindle their

unfriendly passions and excite their most violent conflicts. But

the most common and durable source of factions has been the various

and unequal distribution of property. Those who hold and those who

are without property have ever formed distinct interests in society.

Those who are creditors, and those who are debtors, fall under a

like discrimination. A landed interest, a manufacturing interest, a

mercantile interest, a moneyed interest, with many lesser interests,

grow up of necessity in civilized nations, and divide them into

different classes, actuated by different sentiments and views. The

regulation of these various and interfering interests forms the

principal task of modern legislation, and involves the spirit of

party and faction in the necessary and ordinary operations of the

government.

No man is allowed to be a judge in his own cause, because his

interest would certainly bias his judgment, and, not improbably,

corrupt his integrity. With equal, nay with greater reason, a body

of men are unfit to be both judges and parties at the same time;

yet what are many of the most important acts of legislation, but so

many judicial determinations, not indeed concerning the rights of

single persons, but concerning the rights of large bodies of

citizens? And what are the different classes of legislators but

advocates and parties to the causes which they determine? Is a law

proposed concerning private debts? It is a question to which the

creditors are parties on one side and the debtors on the other.

Justice ought to hold the balance between them. Yet the parties

are, and must be, themselves the judges; and the most numerous

party, or, in other words, the most powerful faction must be

expected to prevail. Shall domestic manufactures be encouraged, and

in what degree, by restrictions on foreign manufactures? are

questions which would be differently decided by the landed and the

manufacturing classes, and probably by neither with a sole regard to

justice and the public good. The apportionment of taxes on the

various descriptions of property is an act which seems to require

the most exact impartiality; yet there is, perhaps, no legislative

act in which greater opportunity and temptation are given to a

predominant party to trample on the rules of justice. Every

shilling with which they overburden the inferior number, is a

shilling saved to their own pockets.

It is in vain to say that enlightened statesmen will be able to

adjust these clashing interests, and render them all subservient to

the public good. Enlightened statesmen will not always be at the

helm. Nor, in many cases, can such an adjustment be made at all

without taking into view indirect and remote considerations, which

will rarely prevail over the immediate interest which one party may

find in disregarding the rights of another or the good of the whole.

The inference to which we are brought is, that the CAUSES of

faction cannot be removed, and that relief is only to be sought in

the means of controlling its EFFECTS.

If a faction consists of less than a majority, relief is

supplied by the republican principle, which enables the majority to

defeat its sinister views by regular vote. It may clog the

administration, it may convulse the society; but it will be unable

to execute and mask its violence under the forms of the Constitution.

When a majority is included in a faction, the form of popular

government, on the other hand, enables it to sacrifice to its ruling

passion or interest both the public good and the rights of other

citizens. To secure the public good and private rights against the

danger of such a faction, and at the same time to preserve the

spirit and the form of popular government, is then the great object

to which our inquiries are directed. Let me add that it is the

great desideratum by which this form of government can be rescued

from the opprobrium under which it has so long labored, and be

recommended to the esteem and adoption of mankind.

By what means is this object attainable? Evidently by one of

two only. Either the existence of the same passion or interest in a

majority at the same time must be prevented, or the majority, having

such coexistent passion or interest, must be rendered, by their

number and local situation, unable to concert and carry into effect

schemes of oppression. If the impulse and the opportunity be

suffered to coincide, we well know that neither moral nor religious

motives can be relied on as an adequate control. They are not found

to be such on the injustice and violence of individuals, and lose

their efficacy in proportion to the number combined together, that

is, in proportion as their efficacy becomes needful.

From this view of the subject it may be concluded that a pure

democracy, by which I mean a society consisting of a small number of

citizens, who assemble and administer the government in person, can

admit of no cure for the mischiefs of faction. A common passion or

interest will, in almost every case, be felt by a majority of the

whole; a communication and concert result from the form of

government itself; and there is nothing to check the inducements to

sacrifice the weaker party or an obnoxious individual. Hence it is

that such democracies have ever been spectacles of turbulence and

contention; have ever been found incompatible with personal

security or the rights of property; and have in general been as

short in their lives as they have been violent in their deaths.

Theoretic politicians, who have patronized this species of

government, have erroneously supposed that by reducing mankind to a

perfect equality in their political rights, they would, at the same

time, be perfectly equalized and assimilated in their possessions,

their opinions, and their passions.

A republic, by which I mean a government in which the scheme of

representation takes place, opens a different prospect, and promises

the cure for which we are seeking. Let us examine the points in

which it varies from pure democracy, and we shall comprehend both

the nature of the cure and the efficacy which it must derive from

the Union.

The two great points of difference between a democracy and a

republic are: first, the delegation of the government, in the

latter, to a small number of citizens elected by the rest;

secondly, the greater number of citizens, and greater sphere of

country, over which the latter may be extended.

The effect of the first difference is, on the one hand, to

refine and enlarge the public views, by passing them through the

medium of a chosen body of citizens, whose wisdom may best discern

the true interest of their country, and whose patriotism and love of

justice will be least likely to sacrifice it to temporary or partial

considerations. Under such a regulation, it may well happen that

the public voice, pronounced by the representatives of the people,

will be more consonant to the public good than if pronounced by the

people themselves, convened for the purpose. On the other hand, the

effect may be inverted. Men of factious tempers, of local

prejudices, or of sinister designs, may, by intrigue, by corruption,

or by other means, first obtain the suffrages, and then betray the

interests, of the people. The question resulting is, whether small

or extensive republics are more favorable to the election of proper

guardians of the public weal; and it is clearly decided in favor of

the latter by two obvious considerations:

In the first place, it is to be remarked that, however small the

republic may be, the representatives must be raised to a certain

number, in order to guard against the cabals of a few; and that,

however large it may be, they must be limited to a certain number,

in order to guard against the confusion of a multitude. Hence, the

number of representatives in the two cases not being in proportion

to that of the two constituents, and being proportionally greater in

the small republic, it follows that, if the proportion of fit

characters be not less in the large than in the small republic, the

former will present a greater option, and consequently a greater

probability of a fit choice.

In the next place, as each representative will be chosen by a

greater number of citizens in the large than in the small republic,

it will be more difficult for unworthy candidates to practice with

success the vicious arts by which elections are too often carried;

and the suffrages of the people being more free, will be more

likely to centre in men who possess the most attractive merit and

the most diffusive and established characters.

It must be confessed that in this, as in most other cases, there

is a mean, on both sides of which inconveniences will be found to

lie. By enlarging too much the number of electors, you render the

representatives too little acquainted with all their local

circumstances and lesser interests; as by reducing it too much, you

render him unduly attached to these, and too little fit to

comprehend and pursue great and national objects. The federal

Constitution forms a happy combination in this respect; the great

and aggregate interests being referred to the national, the local

and particular to the State legislatures.

The other point of difference is, the greater number of citizens

and extent of territory which may be brought within the compass of

republican than of democratic government; and it is this

circumstance principally which renders factious combinations less to

be dreaded in the former than in the latter. The smaller the

society, the fewer probably will be the distinct parties and

interests composing it; the fewer the distinct parties and

interests, the more frequently will a majority be found of the same

party; and the smaller the number of individuals composing a

majority, and the smaller the compass within which they are placed,

the more easily will they concert and execute their plans of

oppression. Extend the sphere, and you take in a greater variety of

parties and interests; you make it less probable that a majority of

the whole will have a common motive to invade the rights of other

citizens; or if such a common motive exists, it will be more

difficult for all who feel it to discover their own strength, and to

act in unison with each other. Besides other impediments, it may be

remarked that, where there is a consciousness of unjust or

dishonorable purposes, communication is always checked by distrust

in proportion to the number whose concurrence is necessary.

Hence, it clearly appears, that the same advantage which a

republic has over a democracy, in controlling the effects of

faction, is enjoyed by a large over a small republic,--is enjoyed by

the Union over the States composing it. Does the advantage consist

in the substitution of representatives whose enlightened views and

virtuous sentiments render them superior to local prejudices and

schemes of injustice? It will not be denied that the representation

of the Union will be most likely to possess these requisite

endowments. Does it consist in the greater security afforded by a

greater variety of parties, against the event of any one party being

able to outnumber and oppress the rest? In an equal degree does the

increased variety of parties comprised within the Union, increase

this security. Does it, in fine, consist in the greater obstacles

opposed to the concert and accomplishment of the secret wishes of an

unjust and interested majority? Here, again, the extent of the

Union gives it the most palpable advantage.

The influence of factious leaders may kindle a flame within

their particular States, but will be unable to spread a general

conflagration through the other States. A religious sect may

degenerate into a political faction in a part of the Confederacy;

but the variety of sects dispersed over the entire face of it must

secure the national councils against any danger from that source. A

rage for paper money, for an abolition of debts, for an equal

division of property, or for any other improper or wicked project,

will be less apt to pervade the whole body of the Union than a

particular member of it; in the same proportion as such a malady is

more likely to taint a particular county or district, than an entire

State.

In the extent and proper structure of the Union, therefore, we

behold a republican remedy for the diseases most incident to

republican government. And according to the degree of pleasure and

pride we feel in being republicans, ought to be our zeal in

cherishing the spirit and supporting the character of Federalists.

PUBLIUS.

 

FEDERALIST No. 11

The Utility of the Union in Respect to Commercial Relations and a Navy

For the Independent Journal.

HAMILTON

To the People of the State of New York:

THE importance of the Union, in a commercial light, is one of

those points about which there is least room to entertain a

difference of opinion, and which has, in fact, commanded the most

general assent of men who have any acquaintance with the subject.

This applies as well to our intercourse with foreign countries as

with each other.

There are appearances to authorize a supposition that the

adventurous spirit, which distinguishes the commercial character of

America, has already excited uneasy sensations in several of the

maritime powers of Europe. They seem to be apprehensive of our too

great interference in that carrying trade, which is the support of

their navigation and the foundation of their naval strength. Those

of them which have colonies in America look forward to what this

country is capable of becoming, with painful solicitude. They

foresee the dangers that may threaten their American dominions from

the neighborhood of States, which have all the dispositions, and

would possess all the means, requisite to the creation of a powerful

marine. Impressions of this kind will naturally indicate the policy

of fostering divisions among us, and of depriving us, as far as

possible, of an ACTIVE COMMERCE in our own bottoms. This would

answer the threefold purpose of preventing our interference in their

navigation, of monopolizing the profits of our trade, and of

clipping the wings by which we might soar to a dangerous greatness.

Did not prudence forbid the detail, it would not be difficult to

trace, by facts, the workings of this policy to the cabinets of

ministers.

If we continue united, we may counteract a policy so unfriendly

to our prosperity in a variety of ways. By prohibitory regulations,

extending, at the same time, throughout the States, we may oblige

foreign countries to bid against each other, for the privileges of

our markets. This assertion will not appear chimerical to those who

are able to appreciate the importance of the markets of three

millions of people--increasing in rapid progression, for the most

part exclusively addicted to agriculture, and likely from local

circumstances to remain so--to any manufacturing nation; and the

immense difference there would be to the trade and navigation of

such a nation, between a direct communication in its own ships, and

an indirect conveyance of its products and returns, to and from

America, in the ships of another country. Suppose, for instance, we

had a government in America, capable of excluding Great Britain

(with whom we have at present no treaty of commerce) from all our

ports; what would be the probable operation of this step upon her

politics? Would it not enable us to negotiate, with the fairest

prospect of success, for commercial privileges of the most valuable

and extensive kind, in the dominions of that kingdom? When these

questions have been asked, upon other occasions, they have received

a plausible, but not a solid or satisfactory answer. It has been

said that prohibitions on our part would produce no change in the

system of Britain, because she could prosecute her trade with us

through the medium of the Dutch, who would be her immediate

customers and paymasters for those articles which were wanted for

the supply of our markets. But would not her navigation be

materially injured by the loss of the important advantage of being

her own carrier in that trade? Would not the principal part of its

profits be intercepted by the Dutch, as a compensation for their

agency and risk? Would not the mere circumstance of freight

occasion a considerable deduction? Would not so circuitous an

intercourse facilitate the competitions of other nations, by

enhancing the price of British commodities in our markets, and by

transferring to other hands the management of this interesting

branch of the British commerce?

A mature consideration of the objects suggested by these

questions will justify a belief that the real disadvantages to

Britain from such a state of things, conspiring with the

pre-possessions of a great part of the nation in favor of the

American trade, and with the importunities of the West India

islands, would produce a relaxation in her present system, and would

let us into the enjoyment of privileges in the markets of those

islands elsewhere, from which our trade would derive the most

substantial benefits. Such a point gained from the British

government, and which could not be expected without an equivalent in

exemptions and immunities in our markets, would be likely to have a

correspondent effect on the conduct of other nations, who would not

be inclined to see themselves altogether supplanted in our trade.

A further resource for influencing the conduct of European

nations toward us, in this respect, would arise from the

establishment of a federal navy. There can be no doubt that the

continuance of the Union under an efficient government would put it

in our power, at a period not very distant, to create a navy which,

if it could not vie with those of the great maritime powers, would

at least be of respectable weight if thrown into the scale of either

of two contending parties. This would be more peculiarly the case

in relation to operations in the West Indies. A few ships of the

line, sent opportunely to the reinforcement of either side, would

often be sufficient to decide the fate of a campaign, on the event

of which interests of the greatest magnitude were suspended. Our

position is, in this respect, a most commanding one. And if to this

consideration we add that of the usefulness of supplies from this

country, in the prosecution of military operations in the West

Indies, it will readily be perceived that a situation so favorable

would enable us to bargain with great advantage for commercial

privileges. A price would be set not only upon our friendship, but

upon our neutrality. By a steady adherence to the Union we may

hope, erelong, to become the arbiter of Europe in America, and to be

able to incline the balance of European competitions in this part of

the world as our interest may dictate.

But in the reverse of this eligible situation, we shall discover

that the rivalships of the parts would make them checks upon each

other, and would frustrate all the tempting advantages which nature

has kindly placed within our reach. In a state so insignificant our

commerce would be a prey to the wanton intermeddlings of all nations

at war with each other; who, having nothing to fear from us, would

with little scruple or remorse, supply their wants by depredations

on our property as often as it fell in their way. The rights of

neutrality will only be respected when they are defended by an

adequate power. A nation, despicable by its weakness, forfeits even

the privilege of being neutral.

Under a vigorous national government, the natural strength and

resources of the country, directed to a common interest, would

baffle all the combinations of European jealousy to restrain our

growth. This situation would even take away the motive to such

combinations, by inducing an impracticability of success. An active

commerce, an extensive navigation, and a flourishing marine would

then be the offspring of moral and physical necessity. We might

defy the little arts of the little politicians to control or vary

the irresistible and unchangeable course of nature.

But in a state of disunion, these combinations might exist and

might operate with success. It would be in the power of the

maritime nations, availing themselves of our universal impotence, to

prescribe the conditions of our political existence; and as they

have a common interest in being our carriers, and still more in

preventing our becoming theirs, they would in all probability

combine to embarrass our navigation in such a manner as would in

effect destroy it, and confine us to a PASSIVE COMMERCE. We should

then be compelled to content ourselves with the first price of our

commodities, and to see the profits of our trade snatched from us to

enrich our enemies and p rsecutors. That unequaled spirit of

enterprise, which signalizes the genius of the American merchants

and navigators, and which is in itself an inexhaustible mine of

national wealth, would be stifled and lost, and poverty and disgrace

would overspread a country which, with wisdom, might make herself

the admiration and envy of the world.

There are rights of great moment to the trade of America which

are rights of the Union--I allude to the fisheries, to the navigation

of the Western lakes, and to that of the Mississippi. The

dissolution of the Confederacy would give room for delicate

questions concerning the future existence of these rights; which

the interest of more powerful partners would hardly fail to solve to

our disadvantage. The disposition of Spain with regard to the

Mississippi needs no comment. France and Britain are concerned with

us in the fisheries, and view them as of the utmost moment to their

navigation. They, of course, would hardly remain long indifferent

to that decided mastery, of which experience has shown us to be

possessed in this valuable branch of traffic, and by which we are

able to undersell those nations in their own markets. What more

natural than that they should be disposed to exclude from the lists

such dangerous competitors?

This branch of trade ought not to be considered as a partial

benefit. All the navigating States may, in different degrees,

advantageously participate in it, and under circumstances of a

greater extension of mercantile capital, would not be unlikely to do

it. As a nursery of seamen, it now is, or when time shall have more

nearly assimilated the principles of navigation in the several

States, will become, a universal resource. To the establishment of

a navy, it must be indispensable.

To this great national object, a NAVY, union will contribute in

various ways. Every institution will grow and flourish in

proportion to the quantity and extent of the means concentred

towards its formation and support. A navy of the United States, as

it would embrace the resources of all, is an object far less remote

than a navy of any single State or partial confederacy, which would

only embrace the resources of a single part. It happens, indeed,

that different portions of confederated America possess each some

peculiar advantage for this essential establishment. The more

southern States furnish in greater abundance certain kinds of naval

stores--tar, pitch, and turpentine. Their wood for the construction

of ships is also of a more solid and lasting texture. The

difference in the duration of the ships of which the navy might be

composed, if chiefly constructed of Southern wood, would be of

signal importance, either in the view of naval strength or of

national economy. Some of the Southern and of the Middle States

yield a greater plenty of iron, and of better quality. Seamen must

chiefly be drawn from the Northern hive. The necessity of naval

protection to external or maritime commerce does not require a

particular elucidation, no more than the conduciveness of that

species of commerce to the prosperity of a navy.

An unrestrained intercourse between the States themselves will

advance the trade of each by an interchange of their respective

productions, not only for the supply of reciprocal wants at home,

but for exportation to foreign markets. The veins of commerce in

every part will be replenished, and will acquire additional motion

and vigor from a free circulation of the commodities of every part.

Commercial enterprise will have much greater scope, from the

diversity in the productions of different States. When the staple

of one fails from a bad harvest or unproductive crop, it can call to

its aid the staple of another. The variety, not less than the

value, of products for exportation contributes to the activity of

foreign commerce. It can be conducted upon much better terms with a

large number of materials of a given value than with a small number

of materials of the same value; arising from the competitions of

trade and from the fluctations of markets. Particular articles may

be in great demand at certain periods, and unsalable at others; but

if there be a variety of articles, it can scarcely happen that they

should all be at one time in the latter predicament, and on this

account the operations of the merchant would be less liable to any

considerable obstruction or stagnation. The speculative trader will

at once perceive the force of these observations, and will

acknowledge that the aggregate balance of the commerce of the United

States would bid fair to be much more favorable than that of the

thirteen States without union or with partial unions.

It may perhaps be replied to this, that whether the States are

united or disunited, there would still be an intimate intercourse

between them which would answer the same ends; this intercourse

would be fettered, interrupted, and narrowed by a multiplicity of

causes, which in the course of these papers have been amply detailed.

A unity of commercial, as well as political, interests, can only

result from a unity of government.

There are other points of view in which this subject might be

placed, of a striking and animating kind. But they would lead us

too far into the regions of futurity, and would involve topics not

proper for a newspaper discussion. I shall briefly observe, that

our situation invites and our interests prompt us to aim at an

ascendant in the system of American affairs. The world may

politically, as well as geographically, be divided into four parts,

each having a distinct set of interests. Unhappily for the other

three, Europe, by her arms and by her negotiations, by force and by

fraud, has, in different degrees, extended her dominion over them

all. Africa, Asia, and America, have successively felt her

domination. The superiority she has long maintained has tempted her

to plume herself as the Mistress of the World, and to consider the

rest of mankind as created for her benefit. Men admired as profound

philosophers have, in direct terms, attributed to her inhabitants a

physical superiority, and have gravely asserted that all animals,

and with them the human species, degenerate in America--that even

dogs cease to bark after having breathed awhile in our

atmosphere.1 Facts have too long supported these arrogant

pretensions of the Europeans. It belongs to us to vindicate the

honor of the human race, and to teach that assuming brother,

moderation. Union will enable us to do it. Disunion will will add

another victim to his triumphs. Let Americans disdain to be the

instruments of European greatness! Let the thirteen States, bound

together in a strict and indissoluble Union, concur in erecting one

great American system, superior to the control of all transatlantic

force or influence, and able to dictate the terms of the connection

between the old and the new world!

PUBLIUS.

``Recherches philosophiques sur les Americains.''

 

FEDERALIST No. 12

The Utility of the Union In Respect to Revenue

From the New York Packet.

Tuesday, November 27, 1787.

HAMILTON

To the People of the State of New York:

THE effects of Union upon the commercial prosperity of the

States have been sufficiently delineated. Its tendency to promote

the interests of revenue will be the subject of our present inquiry.

The prosperity of commerce is now perceived and acknowledged by

all enlightened statesmen to be the most useful as well as the most

productive source of national wealth, and has accordingly become a

primary object of their political cares. By multipying the means of

gratification, by promoting the introduction and circulation of the

precious metals, those darling objects of human avarice and

enterprise, it serves to vivify and invigorate the channels of

industry, and to make them flow with greater activity and

copiousness. The assiduous merchant, the laborious husbandman, the

active mechanic, and the industrious manufacturer,--all orders of

men, look forward with eager expectation and growing alacrity to

this pleasing reward of their toils. The often-agitated question

between agriculture and commerce has, from indubitable experience,

received a decision which has silenced the rivalship that once

subsisted between them, and has proved, to the satisfaction of their

friends, that their interests are intimately blended and interwoven.

It has been found in various countries that, in proportion as

commerce has flourished, land has risen in value. And how could it

have happened otherwise? Could that which procures a freer vent for

the products of the earth, which furnishes new incitements to the

cultivation of land, which is the most powerful instrument in

increasing the quantity of money in a state--could that, in fine,

which is the faithful handmaid of labor and industry, in every

shape, fail to augment that article, which is the prolific parent of

far the greatest part of the objects upon which they are exerted?

It is astonishing that so simple a truth should ever have had an

adversary; and it is one, among a multitude of proofs, how apt a

spirit of ill-informed jealousy, or of too great abstraction and

refinement, is to lead men astray from the plainest truths of reason

and conviction.

The ability of a country to pay taxes must always be

proportioned, in a great degree, to the quantity of money in

circulation, and to the celerity with which it circulates.

Commerce, contributing to both these objects, must of necessity

render the payment of taxes easier, and facilitate the requisite

supplies to the treasury. The hereditary dominions of the Emperor

of Germany contain a great extent of fertile, cultivated, and

populous territory, a large proportion of which is situated in mild

and luxuriant climates. In some parts of this territory are to be

found the best gold and silver mines in Europe. And yet, from the

want of the fostering influence of commerce, that monarch can boast

but slender revenues. He has several times been compelled to owe

obligations to the pecuniary succors of other nations for the

preservation of his essential interests, and is unable, upon the

strength of his own resources, to sustain a long or continued war.

But it is not in this aspect of the subject alone that Union

will be seen to conduce to the purpose of revenue. There are other

points of view, in which its influence will appear more immediate

and decisive. It is evident from the state of the country, from the

habits of the people, from the experience we have had on the point

itself, that it is impracticable to raise any very considerable sums

by direct taxation. Tax laws have in vain been multiplied; new

methods to enforce the collection have in vain been tried; the

public expectation has been uniformly disappointed, and the

treasuries of the States have remained empty. The popular system of

administration inherent in the nature of popular government,

coinciding with the real scarcity of money incident to a languid and

mutilated state of trade, has hitherto defeated every experiment for

extensive collections, and has at length taught the different

legislatures the folly of attempting them.

No person acquainted with what happens in other countries will

be surprised at this circumstance. In so opulent a nation as that

of Britain, where direct taxes from superior wealth must be much

more tolerable, and, from the vigor of the government, much more

practicable, than in America, far the greatest part of the national

revenue is derived from taxes of the indirect kind, from imposts,

and from excises. Duties on imported articles form a large branch

of this latter description.

In America, it is evident that we must a long time depend for

the means of revenue chiefly on such duties. In most parts of it,

excises must be confined within a narrow compass. The genius of the

people will ill brook the inquisitive and peremptory spirit of

excise laws. The pockets of the farmers, on the other hand, will

reluctantly yield but scanty supplies, in the unwelcome shape of

impositions on their houses and lands; and personal property is too

precarious and invisible a fund to be laid hold of in any other way

than by the inperceptible agency of taxes on consumption.

If these remarks have any foundation, that state of things which

will best enable us to improve and extend so valuable a resource

must be best adapted to our political welfare. And it cannot admit

of a serious doubt, that this state of things must rest on the basis

of a general Union. As far as this would be conducive to the

interests of commerce, so far it must tend to the extension of the

revenue to be drawn from that source. As far as it would contribute

to rendering regulations for the collection of the duties more

simple and efficacious, so far it must serve to answer the purposes

of making the same rate of duties more productive, and of putting it

into the power of the government to increase the rate without

prejudice to trade.

The relative situation of these States; the number of rivers

with which they are intersected, and of bays that wash there shores;

the facility of communication in every direction; the affinity of

language and manners; the familiar habits of intercourse; --all

these are circumstances that would conspire to render an illicit

trade between them a matter of little difficulty, and would insure

frequent evasions of the commercial regulations of each other. The

separate States or confederacies would be necessitated by mutual

jealousy to avoid the temptations to that kind of trade by the

lowness of their duties. The temper of our governments, for a long

time to come, would not permit those rigorous precautions by which

the European nations guard the avenues into their respective

countries, as well by land as by water; and which, even there, are

found insufficient obstacles to the adventurous stratagems of

avarice.

In France, there is an army of patrols (as they are called)

constantly employed to secure their fiscal regulations against the

inroads of the dealers in contraband trade. Mr. Neckar computes the

number of these patrols at upwards of twenty thousand. This shows

the immense difficulty in preventing that species of traffic, where

there is an inland communication, and places in a strong light the

disadvantages with which the collection of duties in this country

would be encumbered, if by disunion the States should be placed in a

situation, with respect to each other, resembling that of France

with respect to her neighbors. The arbitrary and vexatious powers

with which the patrols are necessarily armed, would be intolerable

in a free country.

If, on the contrary, there be but one government pervading all

the States, there will be, as to the principal part of our commerce,

but ONE SIDE to guard--the ATLANTIC COAST. Vessels arriving directly

from foreign countries, laden with valuable cargoes, would rarely

choose to hazard themselves to the complicated and critical perils

which would attend attempts to unlade prior to their coming into

port. They would have to dread both the dangers of the coast, and

of detection, as well after as before their arrival at the places of

their final destination. An ordinary degree of vigilance would be

competent to the prevention of any material infractions upon the

rights of the revenue. A few armed vessels, judiciously stationed

at the entrances of our ports, might at a small expense be made

useful sentinels of the laws. And the government having the same

interest to provide against violations everywhere, the co-operation

of its measures in each State would have a powerful tendency to

render them effectual. Here also we should preserve by Union, an

advantage which nature holds out to us, and which would be

relinquished by separation. The United States lie at a great

distance from Europe, and at a considerable distance from all other

places with which they would have extensive connections of foreign

trade. The passage from them to us, in a few hours, or in a single

night, as between the coasts of France and Britain, and of other

neighboring nations, would be impracticable. This is a prodigious

security against a direct contraband with foreign countries; but a

circuitous contraband to one State, through the medium of another,

would be both easy and safe. The difference between a direct

importation from abroad, and an indirect importation through the

channel of a neighboring State, in small parcels, according to time

and opportunity, with the additional facilities of inland

communication, must be palpable to every man of discernment.

It is therefore evident, that one national government would be

able, at much less expense, to extend the duties on imports, beyond

comparison, further than would be practicable to the States

separately, or to any partial confederacies. Hitherto, I believe,

it may safely be asserted, that these duties have not upon an

average exceeded in any State three per cent. In France they are

estimated to be about fifteen per cent., and in Britain they exceed

this proportion.1 There seems to be nothing to hinder their

being increased in this country to at least treble their present

amount. The single article of ardent spirits, under federal

regulation, might be made to furnish a considerable revenue. Upon a

ratio to the importation into this State, the whole quantity

imported into the United States may be estimated at four millions of

gallons; which, at a shilling per gallon, would produce two hundred

thousand pounds. That article would well bear this rate of duty;

and if it should tend to diminish the consumption of it, such an

effect would be equally favorable to the agriculture, to the

economy, to the morals, and to the health of the society. There is,

perhaps, nothing so much a subject of national extravagance as these

spirits.

What will be the consequence, if we are not able to avail

ourselves of the resource in question in its full extent? A nation

cannot long exist without revenues. Destitute of this essential

support, it must resign its independence, and sink into the degraded

condition of a province. This is an extremity to which no

government will of choice accede. Revenue, therefore, must be had

at all events. In this country, if the principal part be not drawn

from commerce, it must fall with oppressive weight upon land. It

has been already intimated that excises, in their true

signification, are too little in unison with the feelings of the

people, to admit of great use being made of that mode of taxation;

nor, indeed, in the States where almost the sole employment is

agriculture, are the objects proper for excise sufficiently numerous

to permit very ample collections in that way. Personal estate (as

has been before remarked), from the difficulty in tracing it, cannot

be subjected to large contributions, by any other means than by

taxes on consumption. In populous cities, it may be enough the

subject of conjecture, to occasion the oppression of individuals,

without much aggregate benefit to the State; but beyond these

circles, it must, in a great measure, escape the eye and the hand of

the tax-gatherer. As the necessities of the State, nevertheless,

must be satisfied in some mode or other, the defect of other

resources must throw the principal weight of public burdens on the

possessors of land. And as, on the other hand, the wants of the

government can never obtain an adequate supply, unless all the

sources of revenue are open to its demands, the finances of the

community, under such embarrassments, cannot be put into a situation

consistent with its respectability or its security. Thus we shall

not even have the consolations of a full treasury, to atone for the

oppression of that valuable class of the citizens who are employed

in the cultivation of the soil. But public and private distress

will keep pace with each other in gloomy concert; and unite in

deploring the infatuation of those counsels which led to disunion.

PUBLIUS.

1 If my memory be right they amount to twenty per cent.

 

FEDERALIST No. 13

Advantage of the Union in Respect to Economy in Government

For the Independent Journal.

HAMILTON

To the People of the State of New York:

As CONNECTED with the subject of revenue, we may with propriety

consider that of economy. The money saved from one object may be

usefully applied to another, and there will be so much the less to

be drawn from the pockets of the people. If the States are united

under one government, there will be but one national civil list to

support; if they are divided into several confederacies, there will

be as many different national civil lists to be provided for--and

each of them, as to the principal departments, coextensive with that

which would be necessary for a government of the whole. The entire

separation of the States into thirteen unconnected sovereignties is

a project too extravagant and too replete with danger to have many

advocates. The ideas of men who speculate upon the dismemberment of

the empire seem generally turned toward three confederacies--one

consisting of the four Northern, another of the four Middle, and a

third of the five Southern States. There is little probability that

there would be a greater number. According to this distribution,

each confederacy would comprise an extent of territory larger than

that of the kingdom of Great Britain. No well-informed man will

suppose that the affairs of such a confederacy can be properly

regulated by a government less comprehensive in its organs or

institutions than that which has been proposed by the convention.

When the dimensions of a State attain to a certain magnitude, it

requires the same energy of government and the same forms of

administration which are requisite in one of much greater extent.

This idea admits not of precise demonstration, because there is no

rule by which we can measure the momentum of civil power necessary

to the government of any given number of individuals; but when we

consider that the island of Britain, nearly commensurate with each

of the supposed confederacies, contains about eight millions of

people, and when we reflect upon the degree of authority required to

direct the passions of so large a society to the public good, we

shall see no reason to doubt that the like portion of power would be

sufficient to perform the same task in a society far more numerous.

Civil power, properly organized and exerted, is capable of

diffusing its force to a very great extent; and can, in a manner,

reproduce itself in every part of a great empire by a judicious

arrangement of subordinate institutions.

The supposition that each confederacy into which the States

would be likely to be divided would require a government not less

comprehensive than the one proposed, will be strengthened by another

supposition, more probable than that which presents us with three

confederacies as the alternative to a general Union. If we attend

carefully to geographical and commercial considerations, in

conjunction with the habits and prejudices of the different States,

we shall be led to conclude that in case of disunion they will most

naturally league themselves under two governments. The four Eastern

States, from all the causes that form the links of national sympathy

and connection, may with certainty be expected to unite. New York,

situated as she is, would never be unwise enough to oppose a feeble

and unsupported flank to the weight of that confederacy. There are

other obvious reasons that would facilitate her accession to it.

New Jersey is too small a State to think of being a frontier, in

opposition to this still more powerful combination; nor do there

appear to be any obstacles to her admission into it. Even

Pennsylvania would have strong inducements to join the Northern

league. An active foreign commerce, on the basis of her own

navigation, is her true policy, and coincides with the opinions and

dispositions of her citizens. The more Southern States, from

various circumstances, may not think themselves much interested in

the encouragement of navigation. They may prefer a system which

would give unlimited scope to all nations to be the carriers as well

as the purchasers of their commodities. Pennsylvania may not choose

to confound her interests in a connection so adverse to her policy.

As she must at all events be a frontier, she may deem it most

consistent with her safety to have her exposed side turned towards

the weaker power of the Southern, rather than towards the stronger

power of the Northern, Confederacy. This would give her the fairest

chance to avoid being the Flanders of America. Whatever may be the

determination of Pennsylvania, if the Northern Confederacy includes

New Jersey, there is no likelihood of more than one confederacy to

the south of that State.

Nothing can be more evident than that the thirteen States will

be able to support a national government better than one half, or

one third, or any number less than the whole. This reflection must

have great weight in obviating that objection to the proposed plan,

which is founded on the principle of expense; an objection,

however, which, when we come to take a nearer view of it, will

appear in every light to stand on mistaken ground.

If, in addition to the consideration of a plurality of civil

lists, we take into view the number of persons who must necessarily

be employed to guard the inland communication between the different

confederacies against illicit trade, and who in time will infallibly

spring up out of the necessities of revenue; and if we also take

into view the military establishments which it has been shown would

unavoidably result from the jealousies and conflicts of the several

nations into which the States would be divided, we shall clearly

discover that a separation would be not less injurious to the

economy, than to the tranquillity, commerce, revenue, and liberty of

every part.

PUBLIUS.

 

FEDERALIST No. 14

Objections to the Proposed Constitution From Extent of Territory Answered

From the New York Packet.

Friday, November 30, 1787.

MADISON

To the People of the State of New York:

WE HAVE seen the necessity of the Union, as our bulwark against

foreign danger, as the conservator of peace among ourselves, as the

guardian of our commerce and other common interests, as the only

substitute for those military establishments which have subverted

the liberties of the Old World, and as the proper antidote for the

diseases of faction, which have proved fatal to other popular

governments, and of which alarming symptoms have been betrayed by

our own. All that remains, within this branch of our inquiries, is

to take notice of an objection that may be drawn from the great

extent of country which the Union embraces. A few observations on

this subject will be the more proper, as it is perceived that the

adversaries of the new Constitution are availing themselves of the

prevailing prejudice with regard to the practicable sphere of

republican administration, in order to supply, by imaginary

difficulties, the want of those solid objections which they endeavor

in vain to find.

The error which limits republican government to a narrow

district has been unfolded and refuted in preceding papers. I

remark here only that it seems to owe its rise and prevalence

chiefly to the confounding of a republic with a democracy, applying

to the former reasonings drawn from the nature of the latter. The

true distinction between these forms was also adverted to on a

former occasion. It is, that in a democracy, the people meet and

exercise the government in person; in a republic, they assemble and

administer it by their representatives and agents. A democracy,

consequently, will be confined to a small spot. A republic may be

extended over a large region.

To this accidental source of the error may be added the artifice

of some celebrated authors, whose writings have had a great share in

forming the modern standard of political opinions. Being subjects

either of an absolute or limited monarchy, they have endeavored to

heighten the advantages, or palliate the evils of those forms, by

placing in comparison the vices and defects of the republican, and

by citing as specimens of the latter the turbulent democracies of

ancient Greece and modern Italy. Under the confusion of names, it

has been an easy task to transfer to a republic observations

applicable to a democracy only; and among others, the observation

that it can never be established but among a small number of people,

living within a small compass of territory.

Such a fallacy may have been the less perceived, as most of the

popular governments of antiquity were of the democratic species;

and even in modern Europe, to which we owe the great principle of

representation, no example is seen of a government wholly popular,

and founded, at the same time, wholly on that principle. If Europe

has the merit of discovering this great mechanical power in

government, by the simple agency of which the will of the largest

political body may be concentred, and its force directed to any

object which the public good requires, America can claim the merit

of making the discovery the basis of unmixed and extensive republics.

It is only to be lamented that any of her citizens should wish to

deprive her of the additional merit of displaying its full efficacy

in the establishment of the comprehensive system now under her

consideration.

As the natural limit of a democracy is that distance from the

central point which will just permit the most remote citizens to

assemble as often as their public functions demand, and will include

no greater number than can join in those functions; so the natural

limit of a republic is that distance from the centre which will

barely allow the representatives to meet as often as may be

necessary for the administration of public affairs. Can it be said

that the limits of the United States exceed this distance? It will

not be said by those who recollect that the Atlantic coast is the

longest side of the Union, that during the term of thirteen years,

the representatives of the States have been almost continually

assembled, and that the members from the most distant States are not

chargeable with greater intermissions of attendance than those from

the States in the neighborhood of Congress.

That we may form a juster estimate with regard to this

interesting subject, let us resort to the actual dimensions of the

Union. The limits, as fixed by the treaty of peace, are: on the

east the Atlantic, on the south the latitude of thirty-one degrees,

on the west the Mississippi, and on the north an irregular line

running in some instances beyond the forty-fifth degree, in others

falling as low as the forty-second. The southern shore of Lake Erie

lies below that latitude. Computing the distance between the

thirty-first and forty-fifth degrees, it amounts to nine hundred and

seventy-three common miles; computing it from thirty-one to

forty-two degrees, to seven hundred and sixty-four miles and a half.

Taking the mean for the distance, the amount will be eight hundred

and sixty-eight miles and three-fourths. The mean distance from the

Atlantic to the Mississippi does not probably exceed seven hundred

and fifty miles. On a comparison of this extent with that of

several countries in Europe, the practicability of rendering our

system commensurate to it appears to be demonstrable. It is not a

great deal larger than Germany, where a diet representing the whole

empire is continually assembled; or than Poland before the late

dismemberment, where another national diet was the depositary of the

supreme power. Passing by France and Spain, we find that in Great

Britain, inferior as it may be in size, the representatives of the

northern extremity of the island have as far to travel to the

national council as will be required of those of the most remote

parts of the Union.

Favorable as this view of the subject may be, some observations

remain which will place it in a light still more satisfactory.

In the first place it is to be remembered that the general

government is not to be charged with the whole power of making and

administering laws. Its jurisdiction is limited to certain

enumerated objects, which concern all the members of the republic,

but which are not to be attained by the separate provisions of any.

The subordinate governments, which can extend their care to all

those other subjects which can be separately provided for, will

retain their due authority and activity. Were it proposed by the

plan of the convention to abolish the governments of the particular

States, its adversaries would have some ground for their objection;

though it would not be difficult to show that if they were

abolished the general government would be compelled, by the

principle of self-preservation, to reinstate them in their proper

jurisdiction.

A second observation to be made is that the immediate object of

the federal Constitution is to secure the union of the thirteen

primitive States, which we know to be practicable; and to add to

them such other States as may arise in their own bosoms, or in their

neighborhoods, which we cannot doubt to be equally practicable. The

arrangements that may be necessary for those angles and fractions of

our territory which lie on our northwestern frontier, must be left

to those whom further discoveries and experience will render more

equal to the task.

Let it be remarked, in the third place, that the intercourse

throughout the Union will be facilitated by new improvements. Roads

will everywhere be shortened, and kept in better order;

accommodations for travelers will be multiplied and meliorated; an

interior navigation on our eastern side will be opened throughout,

or nearly throughout, the whole extent of the thirteen States. The

communication between the Western and Atlantic districts, and

between different parts of each, will be rendered more and more easy

by those numerous canals with which the beneficence of nature has

intersected our country, and which art finds it so little difficult

to connect and complete.

A fourth and still more important consideration is, that as

almost every State will, on one side or other, be a frontier, and

will thus find, in regard to its safety, an inducement to make some

sacrifices for the sake of the general protection; so the States

which lie at the greatest distance from the heart of the Union, and

which, of course, may partake least of the ordinary circulation of

its benefits, will be at the same time immediately contiguous to

foreign nations, and will consequently stand, on particular

occasions, in greatest need of its strength and resources. It may

be inconvenient for Georgia, or the States forming our western or

northeastern borders, to send their representatives to the seat of

government; but they would find it more so to struggle alone

against an invading enemy, or even to support alone the whole

expense of those precautions which may be dictated by the

neighborhood of continual danger. If they should derive less

benefit, therefore, from the Union in some respects than the less

distant States, they will derive greater benefit from it in other

respects, and thus the proper equilibrium will be maintained

throughout.

I submit to you, my fellow-citizens, these considerations, in

full confidence that the good sense which has so often marked your

decisions will allow them their due weight and effect; and that you

will never suffer difficulties, however formidable in appearance, or

however fashionable the error on which they may be founded, to drive

you into the gloomy and perilous scene into which the advocates for

disunion would conduct you. Hearken not to the unnatural voice

which tells you that the people of America, knit together as they

are by so many cords of affection, can no longer live together as

members of the same family; can no longer continue the mutual

guardians of their mutual happiness; can no longer be

fellowcitizens of one great, respectable, and flourishing empire.

Hearken not to the voice which petulantly tells you that the form

of government recommended for your adoption is a novelty in the

political world; that it has never yet had a place in the theories

of the wildest projectors; that it rashly attempts what it is

impossible to accomplish. No, my countrymen, shut your ears against

this unhallowed language. Shut your hearts against the poison which

it conveys; the kindred blood which flows in the veins of American

citizens, the mingled blood which they have shed in defense of their

sacred rights, consecrate their Union, and excite horror at the idea

of their becoming aliens, rivals, enemies. And if novelties are to

be shunned, believe me, the most alarming of all novelties, the most

wild of all projects, the most rash of all attempts, is that of

rendering us in pieces, in order to preserve our liberties and

promote our happiness. But why is the experiment of an extended

republic to be rejected, merely because it may comprise what is new?

Is it not the glory of the people of America, that, whilst they

have paid a decent regard to the opinions of former times and other

nations, they have not suffered a blind veneration for antiquity,

for custom, or for names, to overrule the suggestions of their own

good sense, the knowledge of their own situation, and the lessons of

their own experience? To this manly spirit, posterity will be

indebted for the possession, and the world for the example, of the

numerous innovations displayed on the American theatre, in favor of

private rights and public happiness. Had no important step been

taken by the leaders of the Revolution for which a precedent could

not be discovered, no government established of which an exact model

did not present itself, the people of the United States might, at

this moment have been numbered among the melancholy victims of

misguided councils, must at best have been laboring under the weight

of some of those forms which have crushed the liberties of the rest

of mankind. Happily for America, happily, we trust, for the whole

human race, they pursued a new and more noble course. They

accomplished a revolution which has no parallel in the annals of

human society. They reared the fabrics of governments which have no

model on the face of the globe. They formed the design of a great

Confederacy, which it is incumbent on their successors to improve

and perpetuate. If their works betray imperfections, we wonder at

the fewness of them. If they erred most in the structure of the

Union, this was the work most difficult to be executed; this is the

work which has been new modelled by the act of your convention, and

it is that act on which you are now to deliberate and to decide.

PUBLIUS.

 

FEDERALIST No. 15

The Insufficiency of the Present Confederation to Preserve the Union

For the Independent Journal.

HAMILTON

To the People of the State of New York.

IN THE course of the preceding papers, I have endeavored, my

fellow-citizens, to place before you, in a clear and convincing

light, the importance of Union to your political safety and

happiness. I have unfolded to you a complication of dangers to

which you would be exposed, should you permit that sacred knot which

binds the people of America together be severed or dissolved by

ambition or by avarice, by jealousy or by misrepresentation. In the

sequel of the inquiry through which I propose to accompany you, the

truths intended to be inculcated will receive further confirmation

from facts and arguments hitherto unnoticed. If the road over which

you will still have to pass should in some places appear to you

tedious or irksome, you will recollect that you are in quest of

information on a subject the most momentous which can engage the

attention of a free people, that the field through which you have to

travel is in itself spacious, and that the difficulties of the

journey have been unnecessarily increased by the mazes with which

sophistry has beset the way. It will be my aim to remove the

obstacles from your progress in as compendious a manner as it can be

done, without sacrificing utility to despatch.

In pursuance of the plan which I have laid down for the

discussion of the subject, the point next in order to be examined is

the ``insufficiency of the present Confederation to the preservation

of the Union.'' It may perhaps be asked what need there is of

reasoning or proof to illustrate a position which is not either

controverted or doubted, to which the understandings and feelings of

all classes of men assent, and which in substance is admitted by the

opponents as well as by the friends of the new Constitution. It

must in truth be acknowledged that, however these may differ in

other respects, they in general appear to harmonize in this

sentiment, at least, that there are material imperfections in our

national system, and that something is necessary to be done to

rescue us from impending anarchy. The facts that support this

opinion are no longer objects of speculation. They have forced

themselves upon the sensibility of the people at large, and have at

length extorted from those, whose mistaken policy has had the

principal share in precipitating the extremity at which we are

arrived, a reluctant confession of the reality of those defects in

the scheme of our federal government, which have been long pointed

out and regretted by the intelligent friends of the Union.

We may indeed with propriety be said to have reached almost the

last stage of national humiliation. There is scarcely anything that

can wound the pride or degrade the character of an independent

nation which we do not experience. Are there engagements to the

performance of which we are held by every tie respectable among men?

These are the subjects of constant and unblushing violation. Do we

owe debts to foreigners and to our own citizens contracted in a time

of imminent peril for the preservation of our political existence?

These remain without any proper or satisfactory provision for their

discharge. Have we valuable territories and important posts in the

possession of a foreign power which, by express stipulations, ought

long since to have been surrendered? These are still retained, to

the prejudice of our interests, not less than of our rights. Are we

in a condition to resent or to repel the aggression? We have

neither troops, nor treasury, nor government.1 Are we even in a

condition to remonstrate with dignity? The just imputations on our

own faith, in respect to the same treaty, ought first to be removed.

Are we entitled by nature and compact to a free participation in

the navigation of the Mississippi? Spain excludes us from it. Is

public credit an indispensable resource in time of public danger?

We seem to have abandoned its cause as desperate and irretrievable.

Is commerce of importance to national wealth? Ours is at the

lowest point of declension. Is respectability in the eyes of

foreign powers a safeguard against foreign encroachments? The

imbecility of our government even forbids them to treat with us.

Our ambassadors abroad are the mere pageants of mimic sovereignty.

Is a violent and unnatural decrease in the value of land a symptom

of national distress? The price of improved land in most parts of

the country is much lower than can be accounted for by the quantity

of waste land at market, and can only be fully explained by that

want of private and public confidence, which are so alarmingly

prevalent among all ranks, and which have a direct tendency to

depreciate property of every kind. Is private credit the friend and

patron of industry? That most useful kind which relates to

borrowing and lending is reduced within the narrowest limits, and

this still more from an opinion of insecurity than from the scarcity

of money. To shorten an enumeration of particulars which can afford

neither pleasure nor instruction, it may in general be demanded,

what indication is there of national disorder, poverty, and

insignificance that could befall a community so peculiarly blessed

with natural advantages as we are, which does not form a part of the

dark catalogue of our public misfortunes?

This is the melancholy situation to which we have been brought

by those very maxims and councils which would now deter us from

adopting the proposed Constitution; and which, not content with

having conducted us to the brink of a precipice, seem resolved to

plunge us into the abyss that awaits us below. Here, my countrymen,

impelled by every motive that ought to influence an enlightened

people, let us make a firm stand for our safety, our tranquillity,

our dignity, our reputation. Let us at last break the fatal charm

which has too long seduced us from the paths of felicity and

prosperity.

It is true, as has been before observed that facts, too stubborn

to be resisted, have produced a species of general assent to the

abstract proposition that there exist material defects in our

national system; but the usefulness of the concession, on the part

of the old adversaries of federal measures, is destroyed by a

strenuous opposition to a remedy, upon the only principles that can

give it a chance of success. While they admit that the government

of the United States is destitute of energy, they contend against

conferring upon it those powers which are requisite to supply that

energy. They seem still to aim at things repugnant and

irreconcilable; at an augmentation of federal authority, without a

diminution of State authority; at sovereignty in the Union, and

complete independence in the members. They still, in fine, seem to

cherish with blind devotion the political monster of an imperium

in imperio. This renders a full display of the principal defects

of the Confederation necessary, in order to show that the evils we

experience do not proceed from minute or partial imperfections, but

from fundamental errors in the structure of the building, which

cannot be amended otherwise than by an alteration in the first

principles and main pillars of the fabric.

The great and radical vice in the construction of the existing

Confederation is in the principle of LEGISLATION for STATES or

GOVERNMENTS, in their CORPORATE or COLLECTIVE CAPACITIES, and as

contradistinguished from the INDIVIDUALS of which they consist.

Though this principle does not run through all the powers delegated

to the Union, yet it pervades and governs those on which the

efficacy of the rest depends. Except as to the rule of appointment,

the United States has an indefinite discretion to make requisitions

for men and money; but they have no authority to raise either, by

regulations extending to the individual citizens of America. The

consequence of this is, that though in theory their resolutions

concerning those objects are laws, constitutionally binding on the

members of the Union, yet in practice they are mere recommendations

which the States observe or disregard at their option.

It is a singular instance of the capriciousness of the human

mind, that after all the admonitions we have had from experience on

this head, there should still be found men who object to the new

Constitution, for deviating from a principle which has been found

the bane of the old, and which is in itself evidently incompatible

with the idea of GOVERNMENT; a principle, in short, which, if it is

to be executed at all, must substitute the violent and sanguinary

agency of the sword to the mild influence of the magistracy.

There is nothing absurd or impracticable in the idea of a league

or alliance between independent nations for certain defined purposes

precisely stated in a treaty regulating all the details of time,

place, circumstance, and quantity; leaving nothing to future

discretion; and depending for its execution on the good faith of

the parties. Compacts of this kind exist among all civilized

nations, subject to the usual vicissitudes of peace and war, of

observance and non-observance, as the interests or passions of the

contracting powers dictate. In the early part of the present

century there was an epidemical rage in Europe for this species of

compacts, from which the politicians of the times fondly hoped for

benefits which were never realized. With a view to establishing the

equilibrium of power and the peace of that part of the world, all

the resources of negotiation were exhausted, and triple and

quadruple alliances were formed; but they were scarcely formed

before they were broken, giving an instructive but afflicting lesson

to mankind, how little dependence is to be placed on treaties which

have no other sanction than the obligations of good faith, and which

oppose general considerations of peace and justice to the impulse of

any immediate interest or passion.

If the particular States in this country are disposed to stand

in a similar relation to each other, and to drop the project of a

general DISCRETIONARY SUPERINTENDENCE, the scheme would indeed be

pernicious, and would entail upon us all the mischiefs which have

been enumerated under the first head; but it would have the merit

of being, at least, consistent and practicable Abandoning all views

towards a confederate government, this would bring us to a simple

alliance offensive and defensive; and would place us in a situation

to be alternate friends and enemies of each other, as our mutual

jealousies and rivalships, nourished by the intrigues of foreign

nations, should prescribe to us.

But if we are unwilling to be placed in this perilous situation;

if we still will adhere to the design of a national government, or,

which is the same thing, of a superintending power, under the

direction of a common council, we must resolve to incorporate into

our plan those ingredients which may be considered as forming the

characteristic difference between a league and a government; we

must extend the authority of the Union to the persons of the

citizens, --the only proper objects of government.

Government implies the power of making laws. It is essential to

the idea of a law, that it be attended with a sanction; or, in

other words, a penalty or punishment for disobedience. If there be

no penalty annexed to disobedience, the resolutions or commands

which pretend to be laws will, in fact, amount to nothing more than

advice or recommendation. This penalty, whatever it may be, can

only be inflicted in two ways: by the agency of the courts and

ministers of justice, or by military force; by the COERCION of the

magistracy, or by the COERCION of arms. The first kind can

evidently apply only to men; the last kind must of necessity, be

employed against bodies politic, or communities, or States. It is

evident that there is no process of a court by which the observance

of the laws can, in the last resort, be enforced. Sentences may be

denounced against them for violations of their duty; but these

sentences can only be carried into execution by the sword. In an

association where the general authority is confined to the

collective bodies of the communities, that compose it, every breach

of the laws must involve a state of war; and military execution

must become the only instrument of civil obedience. Such a state of

things can certainly not deserve the name of government, nor would

any prudent man choose to commit his happiness to it.

There was a time when we were told that breaches, by the States,

of the regulations of the federal authority were not to be expected;

that a sense of common interest would preside over the conduct of

the respective members, and would beget a full compliance with all

the constitutional requisitions of the Union. This language, at the

present day, would appear as wild as a great part of what we now

hear from the same quarter will be thought, when we shall have

received further lessons from that best oracle of wisdom, experience.

It at all times betrayed an ignorance of the true springs by which

human conduct is actuated, and belied the original inducements to

the establishment of civil power. Why has government been

instituted at all? Because the passions of men will not conform to

the dictates of reason and justice, without constraint. Has it been

found that bodies of men act with more rectitude or greater

disinterestedness than individuals? The contrary of this has been

inferred by all accurate observers of the conduct of mankind; and

the inference is founded upon obvious reasons. Regard to reputation

has a less active influence, when the infamy of a bad action is to

be divided among a number than when it is to fall singly upon one.

A spirit of faction, which is apt to mingle its poison in the

deliberations of all bodies of men, will often hurry the persons of

whom they are composed into improprieties and excesses, for which

they would blush in a private capacity.

In addition to all this, there is, in the nature of sovereign

power, an impatience of control, that disposes those who are

invested with the exercise of it, to look with an evil eye upon all

external attempts to restrain or direct its operations. From this

spirit it happens, that in every political association which is

formed upon the principle of uniting in a common interest a number

of lesser sovereignties, there will be found a kind of eccentric

tendency in the subordinate or inferior orbs, by the operation of

which there will be a perpetual effort in each to fly off from the

common centre. This tendency is not difficult to be accounted for.

It has its origin in the love of power. Power controlled or

abridged is almost always the rival and enemy of that power by which

it is controlled or abridged. This simple proposition will teach us

how little reason there is to expect, that the persons intrusted

with the administration of the affairs of the particular members of

a confederacy will at all times be ready, with perfect good-humor,

and an unbiased regard to the public weal, to execute the

resolutions or decrees of the general authority. The reverse of

this results from the constitution of human nature.

If, therefore, the measures of the Confederacy cannot be

executed without the intervention of the particular administrations,

there will be little prospect of their being executed at all. The

rulers of the respective members, whether they have a constitutional

right to do it or not, will undertake to judge of the propriety of

the measures themselves. They will consider the conformity of the

thing proposed or required to their immediate interests or aims;

the momentary conveniences or inconveniences that would attend its

adoption. All this will be done; and in a spirit of interested and

suspicious scrutiny, without that knowledge of national

circumstances and reasons of state, which is essential to a right

judgment, and with that strong predilection in favor of local

objects, which can hardly fail to mislead the decision. The same

process must be repeated in every member of which the body is

constituted; and the execution of the plans, framed by the councils

of the whole, will always fluctuate on the discretion of the

ill-informed and prejudiced opinion of every part. Those who have

been conversant in the proceedings of popular assemblies; who have

seen how difficult it often is, where there is no exterior pressure

of circumstances, to bring them to harmonious resolutions on

important points, will readily conceive how impossible it must be to

induce a number of such assemblies, deliberating at a distance from

each other, at different times, and under different impressions,

long to co-operate in the same views and pursuits.

In our case, the concurrence of thirteen distinct sovereign

wills is requisite, under the Confederation, to the complete

execution of every important measure that proceeds from the Union.

It has happened as was to have been foreseen. The measures of the

Union have not been executed; the delinquencies of the States have,

step by step, matured themselves to an extreme, which has, at

length, arrested all the wheels of the national government, and

brought them to an awful stand. Congress at this time scarcely

possess the means of keeping up the forms of administration, till

the States can have time to agree upon a more substantial substitute

for the present shadow of a federal government. Things did not come

to this desperate extremity at once. The causes which have been

specified produced at first only unequal and disproportionate

degrees of compliance with the requisitions of the Union. The

greater deficiencies of some States furnished the pretext of example

and the temptation of interest to the complying, or to the least

delinquent States. Why should we do more in proportion than those

who are embarked with us in the same political voyage? Why should

we consent to bear more than our proper share of the common burden?

These were suggestions which human selfishness could not withstand,

and which even speculative men, who looked forward to remote

consequences, could not, without hesitation, combat. Each State,

yielding to the persuasive voice of immediate interest or

convenience, has successively withdrawn its support, till the frail

and tottering edifice seems ready to fall upon our heads, and to

crush us beneath its ruins.

PUBLIUS.

1 ``I mean for the Union.''

 

FEDERALIST No. 16

The Same Subject Continued

(The Insufficiency of the Present Confederation to Preserve the Union)

From the New York Packet.

Tuesday, December 4, 1787.

HAMILTON

To the People of the State of New York:

THE tendency of the principle of legislation for States, or

communities, in their political capacities, as it has been

exemplified by the experiment we have made of it, is equally

attested by the events which have befallen all other governments of

the confederate kind, of which we have any account, in exact

proportion to its prevalence in those systems. The confirmations of

this fact will be worthy of a distinct and particular examination.

I shall content myself with barely observing here, that of all the

confederacies of antiquity, which history has handed down to us, the

Lycian and Achaean leagues, as far as there remain vestiges of them,

appear to have been most free from the fetters of that mistaken

principle, and were accordingly those which have best deserved, and

have most liberally received, the applauding suffrages of political

writers.

This exceptionable principle may, as truly as emphatically, be

styled the parent of anarchy: It has been seen that delinquencies

in the members of the Union are its natural and necessary offspring;

and that whenever they happen, the only constitutional remedy is

force, and the immediate effect of the use of it, civil war.

It remains to inquire how far so odious an engine of government,

in its application to us, would even be capable of answering its end.

If there should not be a large army constantly at the disposal of

the national government it would either not be able to employ force

at all, or, when this could be done, it would amount to a war

between parts of the Confederacy concerning the infractions of a

league, in which the strongest combination would be most likely to

prevail, whether it consisted of those who supported or of those who

resisted the general authority. It would rarely happen that the

delinquency to be redressed would be confined to a single member,

and if there were more than one who had neglected their duty,

similarity of situation would induce them to unite for common

defense. Independent of this motive of sympathy, if a large and

influential State should happen to be the aggressing member, it

would commonly have weight enough with its neighbors to win over

some of them as associates to its cause. Specious arguments of

danger to the common liberty could easily be contrived; plausible

excuses for the deficiencies of the party could, without difficulty,

be invented to alarm the apprehensions, inflame the passions, and

conciliate the good-will, even of those States which were not

chargeable with any violation or omission of duty. This would be

the more likely to take place, as the delinquencies of the larger

members might be expected sometimes to proceed from an ambitious

premeditation in their rulers, with a view to getting rid of all

external control upon their designs of personal aggrandizement; the

better to effect which it is presumable they would tamper beforehand

with leading individuals in the adjacent States. If associates

could not be found at home, recourse would be had to the aid of

foreign powers, who would seldom be disinclined to encouraging the

dissensions of a Confederacy, from the firm union of which they had

so much to fear. When the sword is once drawn, the passions of men

observe no bounds of moderation. The suggestions of wounded pride,

the instigations of irritated resentment, would be apt to carry the

States against which the arms of the Union were exerted, to any

extremes necessary to avenge the affront or to avoid the disgrace of

submission. The first war of this kind would probably terminate in

a dissolution of the Union.

This may be considered as the violent death of the Confederacy.

Its more natural death is what we now seem to be on the point of

experiencing, if the federal system be not speedily renovated in a

more substantial form. It is not probable, considering the genius

of this country, that the complying States would often be inclined

to support the authority of the Union by engaging in a war against

the non-complying States. They would always be more ready to pursue

the milder course of putting themselves upon an equal footing with

the delinquent members by an imitation of their example. And the

guilt of all would thus become the security of all. Our past

experience has exhibited the operation of this spirit in its full

light. There would, in fact, be an insuperable difficulty in

ascertaining when force could with propriety be employed. In the

article of pecuniary contribution, which would be the most usual

source of delinquency, it would often be impossible to decide

whether it had proceeded from disinclination or inability. The

pretense of the latter would always be at hand. And the case must

be very flagrant in which its fallacy could be detected with

sufficient certainty to justify the harsh expedient of compulsion.

It is easy to see that this problem alone, as often as it should

occur, would open a wide field for the exercise of factious views,

of partiality, and of oppression, in the majority that happened to

prevail in the national council.

It seems to require no pains to prove that the States ought not

to prefer a national Constitution which could only be kept in motion

by the instrumentality of a large army continually on foot to

execute the ordinary requisitions or decrees of the government. And

yet this is the plain alternative involved by those who wish to deny

it the power of extending its operations to individuals. Such a

scheme, if practicable at all, would instantly degenerate into a

military despotism; but it will be found in every light

impracticable. The resources of the Union would not be equal to the

maintenance of an army considerable enough to confine the larger

States within the limits of their duty; nor would the means ever be

furnished of forming such an army in the first instance. Whoever

considers the populousness and strength of several of these States

singly at the present juncture, and looks forward to what they will

become, even at the distance of half a century, will at once dismiss

as idle and visionary any scheme which aims at regulating their

movements by laws to operate upon them in their collective

capacities, and to be executed by a coercion applicable to them in

the same capacities. A project of this kind is little less romantic

than the monster-taming spirit which is attributed to the fabulous

heroes and demi-gods of antiquity.

Even in those confederacies which have been composed of members

smaller than many of our counties, the principle of legislation for

sovereign States, supported by military coercion, has never been

found effectual. It has rarely been attempted to be employed, but

against the weaker members; and in most instances attempts to

coerce the refractory and disobedient have been the signals of

bloody wars, in which one half of the confederacy has displayed its

banners against the other half.

The result of these observations to an intelligent mind must be

clearly this, that if it be possible at any rate to construct a

federal government capable of regulating the common concerns and

preserving the general tranquillity, it must be founded, as to the

objects committed to its care, upon the reverse of the principle

contended for by the opponents of the proposed Constitution. It

must carry its agency to the persons of the citizens. It must stand

in need of no intermediate legislations; but must itself be

empowered to employ the arm of the ordinary magistrate to execute

its own resolutions. The majesty of the national authority must be

manifested through the medium of the courts of justice. The

government of the Union, like that of each State, must be able to

address itself immediately to the hopes and fears of individuals;

and to attract to its support those passions which have the

strongest influence upon the human heart. It must, in short,

possess all the means, and have aright to resort to all the methods,

of executing the powers with which it is intrusted, that are

possessed and exercised by the government of the particular States.

To this reasoning it may perhaps be objected, that if any State

should be disaffected to the authority of the Union, it could at any

time obstruct the execution of its laws, and bring the matter to the

same issue of force, with the necessity of which the opposite scheme

is reproached.

The pausibility of this objection will vanish the moment we

advert to the essential difference between a mere NON-COMPLIANCE and

a DIRECT and ACTIVE RESISTANCE. If the interposition of the State

legislatures be necessary to give effect to a measure of the Union,

they have only NOT TO ACT, or to ACT EVASIVELY, and the measure is

defeated. This neglect of duty may be disguised under affected but

unsubstantial provisions, so as not to appear, and of course not to

excite any alarm in the people for the safety of the Constitution.

The State leaders may even make a merit of their surreptitious

invasions of it on the ground of some temporary convenience,

exemption, or advantage.

But if the execution of the laws of the national government

should not require the intervention of the State legislatures, if

they were to pass into immediate operation upon the citizens

themselves, the particular governments could not interrupt their

progress without an open and violent exertion of an unconstitutional

power. No omissions nor evasions would answer the end. They would

be obliged to act, and in such a manner as would leave no doubt that

they had encroached on the national rights. An experiment of this

nature would always be hazardous in the face of a constitution in

any degree competent to its own defense, and of a people enlightened

enough to distinguish between a legal exercise and an illegal

usurpation of authority. The success of it would require not merely

a factious majority in the legislature, but the concurrence of the

courts of justice and of the body of the people. If the judges were

not embarked in a conspiracy with the legislature, they would

pronounce the resolutions of such a majority to be contrary to the

supreme law of the land, unconstitutional, and void. If the people

were not tainted with the spirit of their State representatives,

they, as the natural guardians of the Constitution, would throw

their weight into the national scale and give it a decided

preponderancy in the contest. Attempts of this kind would not often

be made with levity or rashness, because they could seldom be made

without danger to the authors, unless in cases of a tyrannical

exercise of the federal authority.

If opposition to the national government should arise from the

disorderly conduct of refractory or seditious individuals, it could

be overcome by the same means which are daily employed against the

same evil under the State governments. The magistracy, being

equally the ministers of the law of the land, from whatever source

it might emanate, would doubtless be as ready to guard the national

as the local regulations from the inroads of private licentiousness.

As to those partial commotions and insurrections, which sometimes

disquiet society, from the intrigues of an inconsiderable faction,

or from sudden or occasional illhumors that do not infect the great

body of the community the general government could command more

extensive resources for the suppression of disturbances of that kind

than would be in the power of any single member. And as to those

mortal feuds which, in certain conjunctures, spread a conflagration

through a whole nation, or through a very large proportion of it,

proceeding either from weighty causes of discontent given by the

government or from the contagion of some violent popular paroxysm,

they do not fall within any ordinary rules of calculation. When

they happen, they commonly amount to revolutions and dismemberments

of empire. No form of government can always either avoid or control

them. It is in vain to hope to guard against events too mighty for

human foresight or precaution, and it would be idle to object to a

government because it could not perform impossibilities.

PUBLIUS.

 

FEDERALIST No. 17

The Same Subject Continued

(The Insufficiency of the Present Confederation to Preserve the Union)

For the Independent Journal.

HAMILTON

To the People of the State of New York:

AN OBJECTION, of a nature different from that which has been

stated and answered, in my last address, may perhaps be likewise

urged against the principle of legislation for the individual

citizens of America. It may be said that it would tend to render

the government of the Union too powerful, and to enable it to absorb

those residuary authorities, which it might be judged proper to

leave with the States for local purposes. Allowing the utmost

latitude to the love of power which any reasonable man can require,

I confess I am at a loss to discover what temptation the persons

intrusted with the administration of the general government could

ever feel to divest the States of the authorities of that

description. The regulation of the mere domestic police of a State

appears to me to hold out slender allurements to ambition.

Commerce, finance, negotiation, and war seem to comprehend all the

objects which have charms for minds governed by that passion; and

all the powers necessary to those objects ought, in the first

instance, to be lodged in the national depository. The

administration of private justice between the citizens of the same

State, the supervision of agriculture and of other concerns of a

similar nature, all those things, in short, which are proper to be

provided for by local legislation, can never be desirable cares of a

general jurisdiction. It is therefore improbable that there should

exist a disposition in the federal councils to usurp the powers with

which they are connected; because the attempt to exercise those

powers would be as troublesome as it would be nugatory; and the

possession of them, for that reason, would contribute nothing to the

dignity, to the importance, or to the splendor of the national

government.

But let it be admitted, for argument's sake, that mere

wantonness and lust of domination would be sufficient to beget that

disposition; still it may be safely affirmed, that the sense of the

constituent body of the national representatives, or, in other

words, the people of the several States, would control the

indulgence of so extravagant an appetite. It will always be far

more easy for the State governments to encroach upon the national

authorities than for the national government to encroach upon the

State authorities. The proof of this proposition turns upon the

greater degree of influence which the State governments if they

administer their affairs with uprightness and prudence, will

generally possess over the people; a circumstance which at the same

time teaches us that there is an inherent and intrinsic weakness in

all federal constitutions; and that too much pains cannot be taken

in their organization, to give them all the force which is

compatible with the principles of liberty.

The superiority of influence in favor of the particular

governments would result partly from the diffusive construction of

the national government, but chiefly from the nature of the objects

to which the attention of the State administrations would be

directed.

It is a known fact in human nature, that its affections are

commonly weak in proportion to the distance or diffusiveness of the

object. Upon the same principle that a man is more attached to his

family than to his neighborhood, to his neighborhood than to the

community at large, the people of each State would be apt to feel a

stronger bias towards their local governments than towards the

government of the Union; unless the force of that principle should

be destroyed by a much better administration of the latter.

This strong propensity of the human heart would find powerful

auxiliaries in the objects of State regulation.

The variety of more minute interests, which will necessarily

fall under the superintendence of the local administrations, and

which will form so many rivulets of influence, running through every

part of the society, cannot be particularized, without involving a

detail too tedious and uninteresting to compensate for the

instruction it might afford.

There is one transcendant advantage belonging to the province of

the State governments, which alone suffices to place the matter in a

clear and satisfactory light,--I mean the ordinary administration of

criminal and civil justice. This, of all others, is the most

powerful, most universal, and most attractive source of popular

obedience and attachment. It is that which, being the immediate and

visible guardian of life and property, having its benefits and its

terrors in constant activity before the public eye, regulating all

those personal interests and familiar concerns to which the

sensibility of individuals is more immediately awake, contributes,

more than any other circumstance, to impressing upon the minds of

the people, affection, esteem, and reverence towards the government.

This great cement of society, which will diffuse itself almost

wholly through the channels of the particular governments,

independent of all other causes of influence, would insure them so

decided an empire over their respective citizens as to render them

at all times a complete counterpoise, and, not unfrequently,

dangerous rivals to the power of the Union.

The operations of the national government, on the other hand,

falling less immediately under the observation of the mass of the

citizens, the benefits derived from it will chiefly be perceived and

attended to by speculative men. Relating to more general interests,

they will be less apt to come home to the feelings of the people;

and, in proportion, less likely to inspire an habitual sense of

obligation, and an active sentiment of attachment.

The reasoning on this head has been abundantly exemplified by

the experience of all federal constitutions with which we are

acquainted, and of all others which have borne the least analogy to

them.

Though the ancient feudal systems were not, strictly speaking,

confederacies, yet they partook of the nature of that species of

association. There was a common head, chieftain, or sovereign,

whose authority extended over the whole nation; and a number of

subordinate vassals, or feudatories, who had large portions of land

allotted to them, and numerous trains of INFERIOR vassals or

retainers, who occupied and cultivated that land upon the tenure of

fealty or obedience, to the persons of whom they held it. Each

principal vassal was a kind of sovereign, within his particular

demesnes. The consequences of this situation were a continual

opposition to authority of the sovereign, and frequent wars between

the great barons or chief feudatories themselves. The power of the

head of the nation was commonly too weak, either to preserve the

public peace, or to protect the people against the oppressions of

their immediate lords. This period of European affairs is

emphatically styled by historians, the times of feudal anarchy.

When the sovereign happened to be a man of vigorous and warlike

temper and of superior abilities, he would acquire a personal weight

and influence, which answered, for the time, the purpose of a more

regular authority. But in general, the power of the barons

triumphed over that of the prince; and in many instances his

dominion was entirely thrown off, and the great fiefs were erected

into independent principalities or States. In those instances in

which the monarch finally prevailed over his vassals, his success

was chiefly owing to the tyranny of those vassals over their

dependents. The barons, or nobles, equally the enemies of the

sovereign and the oppressors of the common people, were dreaded and

detested by both; till mutual danger and mutual interest effected a

union between them fatal to the power of the aristocracy. Had the

nobles, by a conduct of clemency and justice, preserved the fidelity

and devotion of their retainers and followers, the contests between

them and the prince must almost always have ended in their favor,

and in the abridgment or subversion of the royal authority.

This is not an assertion founded merely in speculation or

conjecture. Among other illustrations of its truth which might be

cited, Scotland will furnish a cogent example. The spirit of

clanship which was, at an early day, introduced into that kingdom,

uniting the nobles and their dependants by ties equivalent to those

of kindred, rendered the aristocracy a constant overmatch for the

power of the monarch, till the incorporation with England subdued

its fierce and ungovernable spirit, and reduced it within those

rules of subordination which a more rational and more energetic

system of civil polity had previously established in the latter

kingdom.

The separate governments in a confederacy may aptly be compared

with the feudal baronies; with this advantage in their favor, that

from the reasons already explained, they will generally possess the

confidence and good-will of the people, and with so important a

support, will be able effectually to oppose all encroachments of the

national government. It will be well if they are not able to

counteract its legitimate and necessary authority. The points of

similitude consist in the rivalship of power, applicable to both,

and in the CONCENTRATION of large portions of the strength of the

community into particular DEPOSITS, in one case at the disposal of

individuals, in the other case at the disposal of political bodies.

A concise review of the events that have attended confederate

governments will further illustrate this important doctrine; an

inattention to which has been the great source of our political

mistakes, and has given our jealousy a direction to the wrong side.

This review shall form the subject of some ensuing papers.

PUBLIUS.

 

FEDERALIST No. 18

The Same Subject Continued

(The Insufficiency of the Present Confederation to Preserve the Union)

For the Independent Journal.

HAMILTON AND MADISON

To the People of the State of New York:

AMONG the confederacies of antiquity, the most considerable was

that of the Grecian republics, associated under the Amphictyonic

council. From the best accounts transmitted of this celebrated

institution, it bore a very instructive analogy to the present

Confederation of the American States.

The members retained the character of independent and sovereign

states, and had equal votes in the federal council. This council

had a general authority to propose and resolve whatever it judged

necessary for the common welfare of Greece; to declare and carry on

war; to decide, in the last resort, all controversies between the

members; to fine the aggressing party; to employ the whole force

of the confederacy against the disobedient; to admit new members.

The Amphictyons were the guardians of religion, and of the immense

riches belonging to the temple of Delphos, where they had the right

of jurisdiction in controversies between the inhabitants and those

who came to consult the oracle. As a further provision for the

efficacy of the federal powers, they took an oath mutually to defend

and protect the united cities, to punish the violators of this oath,

and to inflict vengeance on sacrilegious despoilers of the temple.

In theory, and upon paper, this apparatus of powers seems amply

sufficient for all general purposes. In several material instances,

they exceed the powers enumerated in the articles of confederation.

The Amphictyons had in their hands the superstition of the times,

one of the principal engines by which government was then

maintained; they had a declared authority to use coercion against

refractory cities, and were bound by oath to exert this authority on

the necessary occasions.

Very different, nevertheless, was the experiment from the theory.

The powers, like those of the present Congress, were administered

by deputies appointed wholly by the cities in their political

capacities; and exercised over them in the same capacities. Hence

the weakness, the disorders, and finally the destruction of the

confederacy. The more powerful members, instead of being kept in

awe and subordination, tyrannized successively over all the rest.

Athens, as we learn from Demosthenes, was the arbiter of Greece

seventy-three years. The Lacedaemonians next governed it

twenty-nine years; at a subsequent period, after the battle of

Leuctra, the Thebans had their turn of domination.

It happened but too often, according to Plutarch, that the

deputies of the strongest cities awed and corrupted those of the

weaker; and that judgment went in favor of the most powerful party.

Even in the midst of defensive and dangerous wars with Persia

and Macedon, the members never acted in concert, and were, more or

fewer of them, eternally the dupes or the hirelings of the common

enemy. The intervals of foreign war were filled up by domestic

vicissitudes convulsions, and carnage.

After the conclusion of the war with Xerxes, it appears that the

Lacedaemonians required that a number of the cities should be turned

out of the confederacy for the unfaithful part they had acted. The

Athenians, finding that the Lacedaemonians would lose fewer

partisans by such a measure than themselves, and would become

masters of the public deliberations, vigorously opposed and defeated

the attempt. This piece of history proves at once the inefficiency

of the union, the ambition and jealousy of its most powerful

members, and the dependent and degraded condition of the rest. The

smaller members, though entitled by the theory of their system to

revolve in equal pride and majesty around the common center, had

become, in fact, satellites of the orbs of primary magnitude.

Had the Greeks, says the Abbe Milot, been as wise as they were

courageous, they would have been admonished by experience of the

necessity of a closer union, and would have availed themselves of

the peace which followed their success against the Persian arms, to

establish such a reformation. Instead of this obvious policy,

Athens and Sparta, inflated with the victories and the glory they

had acquired, became first rivals and then enemies; and did each

other infinitely more mischief than they had suffered from Xerxes.

Their mutual jealousies, fears, hatreds, and injuries ended in the

celebrated Peloponnesian war; which itself ended in the ruin and

slavery of the Athenians who had begun it.

As a weak government, when not at war, is ever agitated by

internal dissentions, so these never fail to bring on fresh

calamities from abroad. The Phocians having ploughed up some

consecrated ground belonging to the temple of Apollo, the

Amphictyonic council, according to the superstition of the age,

imposed a fine on the sacrilegious offenders. The Phocians, being

abetted by Athens and Sparta, refused to submit to the decree. The

Thebans, with others of the cities, undertook to maintain the

authority of the Amphictyons, and to avenge the violated god. The

latter, being the weaker party, invited the assistance of Philip of

Macedon, who had secretly fostered the contest. Philip gladly

seized the opportunity of executing the designs he had long planned

against the liberties of Greece. By his intrigues and bribes he won

over to his interests the popular leaders of several cities; by

their influence and votes, gained admission into the Amphictyonic

council; and by his arts and his arms, made himself master of the

confederacy.

Such were the consequences of the fallacious principle on which

this interesting establishment was founded. Had Greece, says a

judicious observer on her fate, been united by a stricter

confederation, and persevered in her union, she would never have

worn the chains of Macedon; and might have proved a barrier to the

vast projects of Rome.

The Achaean league, as it is called, was another society of

Grecian republics, which supplies us with valuable instruction.

The Union here was far more intimate, and its organization much

wiser, than in the preceding instance. It will accordingly appear,

that though not exempt from a similar catastrophe, it by no means

equally deserved it.

The cities composing this league retained their municipal

jurisdiction, appointed their own officers, and enjoyed a perfect

equality. The senate, in which they were represented, had the sole

and exclusive right of peace and war; of sending and receiving

ambassadors; of entering into treaties and alliances; of

appointing a chief magistrate or praetor, as he was called, who

commanded their armies, and who, with the advice and consent of ten

of the senators, not only administered the government in the recess

of the senate, but had a great share in its deliberations, when

assembled. According to the primitive constitution, there were two

praetors associated in the administration; but on trial a single

one was preferred.

It appears that the cities had all the same laws and customs,

the same weights and measures, and the same money. But how far this

effect proceeded from the authority of the federal council is left

in uncertainty. It is said only that the cities were in a manner

compelled to receive the same laws and usages. When Lacedaemon was

brought into the league by Philopoemen, it was attended with an

abolition of the institutions and laws of Lycurgus, and an adoption

of those of the Achaeans. The Amphictyonic confederacy, of which

she had been a member, left her in the full exercise of her

government and her legislation. This circumstance alone proves a

very material difference in the genius of the two systems.

It is much to be regretted that such imperfect monuments remain

of this curious political fabric. Could its interior structure and

regular operation be ascertained, it is probable that more light

would be thrown by it on the science of federal government, than by

any of the like experiments with which we are acquainted.

One important fact seems to be witnessed by all the historians

who take notice of Achaean affairs. It is, that as well after the

renovation of the league by Aratus, as before its dissolution by the

arts of Macedon, there was infinitely more of moderation and justice

in the administration of its government, and less of violence and

sedition in the people, than were to be found in any of the cities

exercising SINGLY all the prerogatives of sovereignty. The Abbe

Mably, in his observations on Greece, says that the popular

government, which was so tempestuous elsewhere, caused no disorders

in the members of the Achaean republic, BECAUSE IT WAS THERE

TEMPERED BY THE GENERAL AUTHORITY AND LAWS OF THE CONFEDERACY.

We are not to conclude too hastily, however, that faction did

not, in a certain degree, agitate the particular cities; much less

that a due subordination and harmony reigned in the general system.

The contrary is sufficiently displayed in the vicissitudes and fate

of the republic.

Whilst the Amphictyonic confederacy remained, that of the

Achaeans, which comprehended the less important cities only, made

little figure on the theatre of Greece. When the former became a

victim to Macedon, the latter was spared by the policy of Philip and

Alexander. Under the successors of these princes, however, a

different policy prevailed. The arts of division were practiced

among the Achaeans. Each city was seduced into a separate interest;

the union was dissolved. Some of the cities fell under the tyranny

of Macedonian garrisons; others under that of usurpers springing

out of their own confusions. Shame and oppression erelong awaken

their love of liberty. A few cities reunited. Their example was

followed by others, as opportunities were found of cutting off their

tyrants. The league soon embraced almost the whole Peloponnesus.

Macedon saw its progress; but was hindered by internal dissensions

from stopping it. All Greece caught the enthusiasm and seemed ready

to unite in one confederacy, when the jealousy and envy in Sparta

and Athens, of the rising glory of the Achaeans, threw a fatal damp

on the enterprise. The dread of the Macedonian power induced the

league to court the alliance of the Kings of Egypt and Syria, who,

as successors of Alexander, were rivals of the king of Macedon.

This policy was defeated by Cleomenes, king of Sparta, who was led

by his ambition to make an unprovoked attack on his neighbors, the

Achaeans, and who, as an enemy to Macedon, had interest enough with

the Egyptian and Syrian princes to effect a breach of their

engagements with the league.

The Achaeans were now reduced to the dilemma of submitting to

Cleomenes, or of supplicating the aid of Macedon, its former

oppressor. The latter expedient was adopted. The contests of the

Greeks always afforded a pleasing opportunity to that powerful

neighbor of intermeddling in their affairs. A Macedonian army

quickly appeared. Cleomenes was vanquished. The Achaeans soon

experienced, as often happens, that a victorious and powerful ally

is but another name for a master. All that their most abject

compliances could obtain from him was a toleration of the exercise

of their laws. Philip, who was now on the throne of Macedon, soon

provoked by his tyrannies, fresh combinations among the Greeks. The

Achaeans, though weakenened by internal dissensions and by the

revolt of Messene, one of its members, being joined by the AEtolians

and Athenians, erected the standard of opposition. Finding

themselves, though thus supported, unequal to the undertaking, they

once more had recourse to the dangerous expedient of introducing the

succor of foreign arms. The Romans, to whom the invitation was

made, eagerly embraced it. Philip was conquered; Macedon subdued.

A new crisis ensued to the league. Dissensions broke out among it

members. These the Romans fostered. Callicrates and other popular

leaders became mercenary instruments for inveigling their countrymen.

The more effectually to nourish discord and disorder the Romans

had, to the astonishment of those who confided in their sincerity,

already proclaimed universal liberty1 throughout Greece. With

the same insidious views, they now seduced the members from the

league, by representing to their pride the violation it committed on

their sovereignty. By these arts this union, the last hope of

Greece, the last hope of ancient liberty, was torn into pieces; and

such imbecility and distraction introduced, that the arms of Rome

found little difficulty in completing the ruin which their arts had

commenced. The Achaeans were cut to pieces, and Achaia loaded with

chains, under which it is groaning at this hour.

I have thought it not superfluous to give the outlines of this

important portion of history; both because it teaches more than one

lesson, and because, as a supplement to the outlines of the Achaean

constitution, it emphatically illustrates the tendency of federal

bodies rather to anarchy among the members, than to tyranny in the

head.

PUBLIUS.

1 This was but another name more specious for the independence

of the members on the federal head.

 

FEDERALIST No. 19

The Same Subject Continued

(The Insufficiency of the Present Confederation to Preserve the Union)

For the Independent Journal.

HAMILTON AND MADISON

To the People of the State of New York:

THE examples of ancient confederacies, cited in my last paper,

have not exhausted the source of experimental instruction on this

subject. There are existing institutions, founded on a similar

principle, which merit particular consideration. The first which

presents itself is the Germanic body.

In the early ages of Christianity, Germany was occupied by seven

distinct nations, who had no common chief. The Franks, one of the

number, having conquered the Gauls, established the kingdom which

has taken its name from them. In the ninth century Charlemagne, its

warlike monarch, carried his victorious arms in every direction;

and Germany became a part of his vast dominions. On the

dismemberment, which took place under his sons, this part was

erected into a separate and independent empire. Charlemagne and his

immediate descendants possessed the reality, as well as the ensigns

and dignity of imperial power. But the principal vassals, whose

fiefs had become hereditary, and who composed the national diets

which Charlemagne had not abolished, gradually threw off the yoke

and advanced to sovereign jurisdiction and independence. The force

of imperial sovereignty was insufficient to restrain such powerful

dependants; or to preserve the unity and tranquillity of the empire.

The most furious private wars, accompanied with every species of

calamity, were carried on between the different princes and states.

The imperial authority, unable to maintain the public order,

declined by degrees till it was almost extinct in the anarchy, which

agitated the long interval between the death of the last emperor of

the Suabian, and the accession of the first emperor of the Austrian

lines. In the eleventh century the emperors enjoyed full

sovereignty: In the fifteenth they had little more than the symbols

and decorations of power.

Out of this feudal system, which has itself many of the

important features of a confederacy, has grown the federal system

which constitutes the Germanic empire. Its powers are vested in a

diet representing the component members of the confederacy; in the

emperor, who is the executive magistrate, with a negative on the

decrees of the diet; and in the imperial chamber and the aulic

council, two judiciary tribunals having supreme jurisdiction in

controversies which concern the empire, or which happen among its

members.

The diet possesses the general power of legislating for the

empire; of making war and peace; contracting alliances; assessing

quotas of troops and money; constructing fortresses; regulating

coin; admitting new members; and subjecting disobedient members to

the ban of the empire, by which the party is degraded from his

sovereign rights and his possessions forfeited. The members of the

confederacy are expressly restricted from entering into compacts

prejudicial to the empire; from imposing tolls and duties on their

mutual intercourse, without the consent of the emperor and diet;

from altering the value of money; from doing injustice to one

another; or from affording assistance or retreat to disturbers of

the public peace. And the ban is denounced against such as shall

violate any of these restrictions. The members of the diet, as

such, are subject in all cases to be judged by the emperor and diet,

and in their private capacities by the aulic council and imperial

chamber.

The prerogatives of the emperor are numerous. The most

important of them are: his exclusive right to make propositions to

the diet; to negative its resolutions; to name ambassadors; to

confer dignities and titles; to fill vacant electorates; to found

universities; to grant privileges not injurious to the states of

the empire; to receive and apply the public revenues; and

generally to watch over the public safety. In certain cases, the

electors form a council to him. In quality of emperor, he possesses

no territory within the empire, nor receives any revenue for his

support. But his revenue and dominions, in other qualities,

constitute him one of the most powerful princes in Europe.

From such a parade of constitutional powers, in the

representatives and head of this confederacy, the natural

supposition would be, that it must form an exception to the general

character which belongs to its kindred systems. Nothing would be

further from the reality. The fundamental principle on which it

rests, that the empire is a community of sovereigns, that the diet

is a representation of sovereigns and that the laws are addressed to

sovereigns, renders the empire a nerveless body, incapable of

regulating its own members, insecure against external dangers, and

agitated with unceasing fermentations in its own bowels.

The history of Germany is a history of wars between the emperor

and the princes and states; of wars among the princes and states

themselves; of the licentiousness of the strong, and the oppression

of the weak; of foreign intrusions, and foreign intrigues; of

requisitions of men and money disregarded, or partially complied

with; of attempts to enforce them, altogether abortive, or attended

with slaughter and desolation, involving the innocent with the

guilty; of general inbecility, confusion, and misery.

In the sixteenth century, the emperor, with one part of the

empire on his side, was seen engaged against the other princes and

states. In one of the conflicts, the emperor himself was put to

flight, and very near being made prisoner by the elector of Saxony.

The late king of Prussia was more than once pitted against his

imperial sovereign; and commonly proved an overmatch for him.

Controversies and wars among the members themselves have been so

common, that the German annals are crowded with the bloody pages

which describe them. Previous to the peace of Westphalia, Germany

was desolated by a war of thirty years, in which the emperor, with

one half of the empire, was on one side, and Sweden, with the other

half, on the opposite side. Peace was at length negotiated, and

dictated by foreign powers; and the articles of it, to which

foreign powers are parties, made a fundamental part of the Germanic

constitution.

If the nation happens, on any emergency, to be more united by

the necessity of self-defense, its situation is still deplorable.

Military preparations must be preceded by so many tedious

discussions, arising from the jealousies, pride, separate views, and

clashing pretensions of sovereign bodies, that before the diet can

settle the arrangements, the enemy are in the field; and before the

federal troops are ready to take it, are retiring into winter

quarters.

The small body of national troops, which has been judged

necessary in time of peace, is defectively kept up, badly paid,

infected with local prejudices, and supported by irregular and

disproportionate contributions to the treasury.

The impossibility of maintaining order and dispensing justice

among these sovereign subjects, produced the experiment of dividing

the empire into nine or ten circles or districts; of giving them an

interior organization, and of charging them with the military

execution of the laws against delinquent and contumacious members.

This experiment has only served to demonstrate more fully the

radical vice of the constitution. Each circle is the miniature

picture of the deformities of this political monster. They either

fail to execute their commissions, or they do it with all the

devastation and carnage of civil war. Sometimes whole circles are

defaulters; and then they increase the mischief which they were

instituted to remedy.

We may form some judgment of this scheme of military coercion

from a sample given by Thuanus. In Donawerth, a free and imperial

city of the circle of Suabia, the Abb 300 de St. Croix enjoyed

certain immunities which had been reserved to him. In the exercise

of these, on some public occasions, outrages were committed on him

by the people of the city. The consequence was that the city was

put under the ban of the empire, and the Duke of Bavaria, though

director of another circle, obtained an appointment to enforce it.

He soon appeared before the city with a corps of ten thousand

troops, and finding it a fit occasion, as he had secretly intended

from the beginning, to revive an antiquated claim, on the pretext

that his ancestors had suffered the place to be dismembered from his

territory,1 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 heriditary dominions; and the

interest he feels in preserving a system with which his family pride

is connected, and which constitutes him the first prince in Europe;

--these causes support a feeble and precarious Union; whilst the

repellant quality, incident to the nature of sovereignty, and which

time continually strengthens, prevents any reform whatever, founded

on a proper consolidation. Nor is it to be imagined, if this

obstacle could be surmounted, that the neighboring powers would

suffer a revolution to take place which would give to the empire the

force and preeminence to which it is entitled. Foreign nations have

long considered themselves as interested in the changes made by

events in this constitution; and have, on various occasions,

betrayed their policy of perpetuating its anarchy and weakness.

If more direct examples were wanting, Poland, as a government

over local sovereigns, might not improperly be taken notice of. Nor

could any proof more striking be given of the calamities flowing

from such institutions. Equally unfit for self-government and

self-defense, it has long been at the mercy of its powerful

neighbors; who have lately had the mercy to disburden it of one

third of its people and territories.

The connection among the Swiss cantons scarcely amounts to a

confederacy; though it is sometimes cited as an instance of the

stability of such institutions.

They have no common treasury; no common troops even in war; no

common coin; no common judicatory; nor any other common mark of

sovereignty.

They are kept together by the peculiarity of their topographical

position; by their individual weakness and insignificancy; by the

fear of powerful neighbors, to one of which they were formerly

subject; by the few sources of contention among a people of such

simple and homogeneous manners; by their joint interest in their

dependent possessions; by the mutual aid they stand in need of, for

suppressing insurrections and rebellions, an aid expressly

stipulated and often required and afforded; and by the necessity of

some regular and permanent provision for accomodating disputes among

the cantons. The provision is, that the parties at variance shall

each choose four judges out of the neutral cantons, who, in case of

disagreement, choose an umpire. This tribunal, under an oath of

impartiality, pronounces definitive sentence, which all the cantons

are bound to enforce. The competency of this regulation may be

estimated by a clause in their treaty of 1683, with Victor Amadeus

of Savoy; in which he obliges himself to interpose as mediator in

disputes between the cantons, and to employ force, if necessary,

against the contumacious party.

So far as the peculiarity of their case will admit of comparison

with that of the United States, it serves to confirm the principle

intended to be established. Whatever efficacy the union may have

had in ordinary cases, it appears that the moment a cause of

difference sprang up, capable of trying its strength, it failed.

The controversies on the subject of religion, which in three

instances have kindled violent and bloody contests, may be said, in

fact, to have severed the league. The Protestant and Catholic

cantons have since had their separate diets, where all the most

important concerns are adjusted, and which have left the general

diet little other business than to take care of the common bailages.

That separation had another consequence, which merits attention.

It produced opposite alliances with foreign powers: of Berne, at

the head of the Protestant association, with the United Provinces;

and of Luzerne, at the head of the Catholic association, with

France.

PUBLIUS.

1 Pfeffel, ``Nouvel Abreg. Chronol. de l'Hist., etc.,

d'Allemagne,'' says the pretext was to indemnify himself for the

expense of the expedition.

 

FEDERALIST No. 20

The Same Subject Continued

(The Insufficiency fo the Present Confederation to Preserve the Union)

From the New York Packet.

Tuesday, December 11, 1787.

HAMILTON AND MADISON

To the People of the State of New York:

THE United Netherlands are a confederacy of republics, or rather

of aristocracies of a very remarkable texture, yet confirming all

the lessons derived from those which we have already reviewed.

The union is composed of seven coequal and sovereign states, and

each state or province is a composition of equal and independent

cities. In all important cases, not only the provinces but the

cities must be unanimous.

The sovereignty of the Union is represented by the

States-General, consisting usually of about fifty deputies appointed

by the provinces. They hold their seats, some for life, some for

six, three, and one years; from two provinces they continue in

appointment during pleasure.

The States-General have authority to enter into treaties and

alliances; to make war and peace; to raise armies and equip

fleets; to ascertain quotas and demand contributions. In all these

cases, however, unanimity and the sanction of their constituents are

requisite. They have authority to appoint and receive ambassadors;

to execute treaties and alliances already formed; to provide for

the collection of duties on imports and exports; to regulate the

mint, with a saving to the provincial rights; to govern as

sovereigns the dependent territories. The provinces are restrained,

unless with the general consent, from entering into foreign

treaties; from establishing imposts injurious to others, or

charging their neighbors with higher duties than their own subjects.

A council of state, a chamber of accounts, with five colleges of

admiralty, aid and fortify the federal administration.

The executive magistrate of the union is the stadtholder, who is

now an hereditary prince. His principal weight and influence in the

republic are derived from this independent title; from his great

patrimonial estates; from his family connections with some of the

chief potentates of Europe; and, more than all, perhaps, from his

being stadtholder in the several provinces, as well as for the

union; in which provincial quality he has the appointment of town

magistrates under certain regulations, executes provincial decrees,

presides when he pleases in the provincial tribunals, and has

throughout the power of pardon.

As stadtholder of the union, he has, however, considerable

prerogatives.

In his political capacity he has authority to settle disputes

between the provinces, when other methods fail; to assist at the

deliberations of the States-General, and at their particular

conferences; to give audiences to foreign ambassadors, and to keep

agents for his particular affairs at foreign courts.

In his military capacity he commands the federal troops,

provides for garrisons, and in general regulates military affairs;

disposes of all appointments, from colonels to ensigns, and of the

governments and posts of fortified towns.

In his marine capacity he is admiral-general, and superintends

and directs every thing relative to naval forces and other naval

affairs; presides in the admiralties in person or by proxy;

appoints lieutenant-admirals and other officers; and establishes

councils of war, whose sentences are not executed till he approves

them.

His revenue, exclusive of his private income, amounts to three

hundred thousand florins. The standing army which he commands

consists of about forty thousand men.

Such is the nature of the celebrated Belgic confederacy, as

delineated on parchment. What are the characters which practice has

stamped upon it? Imbecility in the government; discord among the

provinces; foreign influence and indignities; a precarious

existence in peace, and peculiar calamities from war.

It was long ago remarked by Grotius, that nothing but the hatred

of his countrymen to the house of Austria kept them from being

ruined by the vices of their constitution.

The union of Utrecht, says another respectable writer, reposes

an authority in the States-General, seemingly sufficient to secure

harmony, but the jealousy in each province renders the practice very

different from the theory.

The same instrument, says another, obliges each province to levy

certain contributions; but this article never could, and probably

never will, be executed; because the inland provinces, who have

little commerce, cannot pay an equal quota.

In matters of contribution, it is the practice to waive the

articles of the constitution. The danger of delay obliges the

consenting provinces to furnish their quotas, without waiting for

the others; and then to obtain reimbursement from the others, by

deputations, which are frequent, or otherwise, as they can. The

great wealth and influence of the province of Holland enable her to

effect both these purposes.

It has more than once happened, that the deficiencies had to be

ultimately collected at the point of the bayonet; a thing

practicable, though dreadful, in a confedracy where one of the

members exceeds in force all the rest, and where several of them are

too small to meditate resistance; but utterly impracticable in one

composed of members, several of which are equal to each other in

strength and resources, and equal singly to a vigorous and

persevering defense.

Foreign ministers, says Sir William Temple, who was himself a

foreign minister, elude matters taken ad referendum, by

tampering with the provinces and cities. In 1726, the treaty of

Hanover was delayed by these means a whole year. Instances of a

like nature are numerous and notorious.

In critical emergencies, the States-General are often compelled

to overleap their constitutional bounds. In 1688, they concluded a

treaty of themselves at the risk of their heads. The treaty of

Westphalia, in 1648, by which their independence was formerly and

finally recognized, was concluded without the consent of Zealand.

Even as recently as the last treaty of peace with Great Britain,

the constitutional principle of unanimity was departed from. A weak

constitution must necessarily terminate in dissolution, for want of

proper powers, or the usurpation of powers requisite for the public

safety. Whether the usurpation, when once begun, will stop at the

salutary point, or go forward to the dangerous extreme, must depend

on the contingencies of the moment. Tyranny has perhaps oftener

grown out of the assumptions of power, called for, on pressing

exigencies, by a defective constitution, than out of the full

exercise of the largest constitutional authorities.

Notwithstanding the calamities produced by the stadtholdership,

it has been supposed that without his influence in the individual

provinces, the causes of anarchy manifest in the confederacy would

long ago have dissolved it. ``Under such a government,'' says the

Abbe Mably, ``the Union could never have subsisted, if the provinces

had not a spring within themselves, capable of quickening their

tardiness, and compelling them to the same way of thinking. This

spring is the stadtholder.'' It is remarked by Sir William Temple,

``that in the intermissions of the stadtholdership, Holland, by her

riches and her authority, which drew the others into a sort of

dependence, supplied the place.''

These are not the only circumstances which have controlled the

tendency to anarchy and dissolution. The surrounding powers impose

an absolute necessity of union to a certain degree, at the same time

that they nourish by their intrigues the constitutional vices which

keep the republic in some degree always at their mercy.

The true patriots have long bewailed the fatal tendency of these

vices, and have made no less than four regular experiments by

EXTRAORDINARY ASSEMBLIES, convened for the special purpose, to apply

a remedy. As many times has their laudable zeal found it impossible

to UNITE THE PUBLIC COUNCILS in reforming the known, the

acknowledged, the fatal evils of the existing constitution. Let us

pause, my fellow-citizens, for one moment, over this melancholy and

monitory lesson of history; and with the tear that drops for the

calamities brought on mankind by their adverse opinions and selfish

passions, let our gratitude mingle an ejaculation to Heaven, for the

propitious concord which has distinguished the consultations for our

political happiness.

A design was also conceived of establishing a general tax to be

administered by the federal authority. This also had its

adversaries and failed.

This unhappy people seem to be now suffering from popular

convulsions, from dissensions among the states, and from the actual

invasion of foreign arms, the crisis of their distiny. All nations

have their eyes fixed on the awful spectacle. The first wish

prompted by humanity is, that this severe trial may issue in such a

revolution of their government as will establish their union, and

render it the parent of tranquillity, freedom and happiness: The

next, that the asylum under which, we trust, the enjoyment of these

blessings will speedily be secured in this country, may receive and

console them for the catastrophe of their own.

I make no apology for having dwelt so long on the contemplation

of these federal precedents. Experience is the oracle of truth;

and where its responses are unequivocal, they ought to be

conclusive and sacred. The important truth, which it unequivocally

pronounces in the present case, is that a sovereignty over

sovereigns, a government over governments, a legislation for

communities, as contradistinguished from individuals, as it is a

solecism in theory, so in practice it is subversive of the order and

ends of civil polity, by substituting VIOLENCE in place of LAW, or

the destructive COERCION of the SWORD in place of the mild and

salutary COERCION of the MAGISTRACY.

PUBLIUS.

 

FEDERALIST No. 21

Other Defects of the Present Confederation

For the Independent Journal.

HAMILTON

To the People of the State of New York:

HAVING in the three last numbers taken a summary review of the

principal circumstances and events which have depicted the genius

and fate of other confederate governments, I shall now proceed in

the enumeration of the most important of those defects which have

hitherto disappointed our hopes from the system established among

ourselves. To form a safe and satisfactory judgment of the proper

remedy, it is absolutely necessary that we should be well acquainted

with the extent and malignity of the disease.

The next most palpable defect of the subsisting Confederation,

is the total want of a SANCTION to its laws. The United States, as

now composed, have no powers to exact obedience, or punish

disobedience to their resolutions, either by pecuniary mulcts, by a

suspension or divestiture of privileges, or by any other

constitutional mode. There is no express delegation of authority to

them to use force against delinquent members; and if such a right

should be ascribed to the federal head, as resulting from the nature

of the social compact between the States, it must be by inference

and construction, in the face of that part of the second article, by

which it is declared, ``that each State shall retain every power,

jurisdiction, and right, not EXPRESSLY delegated to the United

States in Congress assembled.'' There is, doubtless, a striking

absurdity in supposing that a right of this kind does not exist, but

we are reduced to the dilemma either of embracing that supposition,

preposterous as it may seem, or of contravening or explaining away a

provision, which has been of late a repeated theme of the eulogies

of those who oppose the new Constitution; and the want of which, in

that plan, has been the subject of much plausible animadversion, and

severe criticism. If we are unwilling to impair the force of this

applauded provision, we shall be obliged to conclude, that the

United States afford the extraordinary spectacle of a government

destitute even of the shadow of constitutional power to enforce the

execution of its own laws. It will appear, from the specimens which

have been cited, that the American Confederacy, in this particular,

stands discriminated from every other institution of a similar kind,

and exhibits a new and unexampled phenomenon in the political world.

The want of a mutual guaranty of the State governments is

another capital imperfection in the federal plan. There is nothing

of this kind declared in the articles that compose it; and to imply

a tacit guaranty from considerations of utility, would be a still

more flagrant departure from the clause which has been mentioned,

than to imply a tacit power of coercion from the like considerations

. The want of a guaranty, though it might in its consequences

endanger the Union, does not so immediately attack its existence as

the want of a constitutional sanction to its laws.

Without a guaranty the assistance to be derived from the Union

in repelling those domestic dangers which may sometimes threaten the

existence of the State constitutions, must be renounced. Usurpation

may rear its crest in each State, and trample upon the liberties of

the people, while the national government could legally do nothing

more than behold its encroachments with indignation and regret. A

successful faction may erect a tyranny on the ruins of order and

law, while no succor could constitutionally be afforded by the Union

to the friends and supporters of the government. The tempestuous

situation from which Massachusetts has scarcely emerged, evinces

that dangers of this kind are not merely speculative. Who can

determine what might have been the issue of her late convulsions, if

the malcontents had been headed by a Caesar or by a Cromwell? Who

can predict what effect a despotism, established in Massachusetts,

would have upon the liberties of New Hampshire or Rhode Island, of

Connecticut or New York?

The inordinate pride of State importance has suggested to some

minds an objection to the principle of a guaranty in the federal

government, as involving an officious interference in the domestic

concerns of the members. A scruple of this kind would deprive us of

one of the principal advantages to be expected from union, and can

only flow from a misapprehension of the nature of the provision

itself. It could be no impediment to reforms of the State

constitution by a majority of the people in a legal and peaceable

mode. This right would remain undiminished. The guaranty could

only operate against changes to be effected by violence. Towards

the preventions of calamities of this kind, too many checks cannot

be provided. The peace of society and the stability of government

depend absolutely on the efficacy of the precautions adopted on this

head. Where the whole power of the government is in the hands of

the people, there is the less pretense for the use of violent

remedies in partial or occasional distempers of the State. The

natural cure for an ill-administration, in a popular or

representative constitution, is a change of men. A guaranty by the

national authority would be as much levelled against the usurpations

of rulers as against the ferments and outrages of faction and

sedition in the community.

The principle of regulating the contributions of the States to

the common treasury by QUOTAS is another fundamental error in the

Confederation. Its repugnancy to an adequate supply of the national

exigencies has been already pointed out, and has sufficiently

appeared from the trial which has been made of it. I speak of it

now solely with a view to equality among the States. Those who have

been accustomed to contemplate the circumstances which produce and

constitute national wealth, must be satisfied that there is no

common standard or barometer by which the degrees of it can be

ascertained. Neither the value of lands, nor the numbers of the

people, which have been successively proposed as the rule of State

contributions, has any pretension to being a just representative.

If we compare the wealth of the United Netherlands with that of

Russia or Germany, or even of France, and if we at the same time

compare the total value of the lands and the aggregate population of

that contracted district with the total value of the lands and the

aggregate population of the immense regions of either of the three

last-mentioned countries, we shall at once discover that there is no

comparison between the proportion of either of these two objects and

that of the relative wealth of those nations. If the like parallel

were to be run between several of the American States, it would

furnish a like result. Let Virginia be contrasted with North

Carolina, Pennsylvania with Connecticut, or Maryland with New

Jersey, and we shall be convinced that the respective abilities of

those States, in relation to revenue, bear little or no analogy to

their comparative stock in lands or to their comparative population.

The position may be equally illustrated by a similar process

between the counties of the same State. No man who is acquainted

with the State of New York will doubt that the active wealth of

King's County bears a much greater proportion to that of Montgomery

than it would appear to be if we should take either the total value

of the lands or the total number of the people as a criterion!

The wealth of nations depends upon an infinite variety of causes.

Situation, soil, climate, the nature of the productions, the

nature of the government, the genius of the citizens, the degree of

information they possess, the state of commerce, of arts, of

industry, these circumstances and many more, too complex, minute, or

adventitious to admit of a particular specification, occasion

differences hardly conceivable in the relative opulence and riches

of different countries. The consequence clearly is that there can

be no common measure of national wealth, and, of course, no general

or stationary rule by which the ability of a state to pay taxes can

be determined. The attempt, therefore, to regulate the

contributions of the members of a confederacy by any such rule,

cannot fail to be productive of glaring inequality and extreme

oppression.

This inequality would of itself be sufficient in America to work

the eventual destruction of the Union, if any mode of enforcing a

compliance with its requisitions could be devised. The suffering

States would not long consent to remain associated upon a principle

which distributes the public burdens with so unequal a hand, and

which was calculated to impoverish and oppress the citizens of some

States, while those of others would scarcely be conscious of the

small proportion of the weight they were required to sustain. This,

however, is an evil inseparable from the principle of quotas and

requisitions.

There is no method of steering clear of this inconvenience, but

by authorizing the national government to raise its own revenues in

its own way. Imposts, excises, and, in general, all duties upon

articles of consumption, may be compared to a fluid, which will, in

time, find its level with the means of paying them. The amount to

be contributed by each citizen will in a degree be at his own

option, and can be regulated by an attention to his resources. The

rich may be extravagant, the poor can be frugal; and private

oppression may always be avoided by a judicious selection of objects

proper for such impositions. If inequalities should arise in some

States from duties on particular objects, these will, in all

probability, be counterbalanced by proportional inequalities in

other States, from the duties on other objects. In the course of

time and things, an equilibrium, as far as it is attainable in so

complicated a subject, will be established everywhere. Or, if

inequalities should still exist, they would neither be so great in

their degree, so uniform in their operation, nor so odious in their

appearance, as those which would necessarily spring from quotas,

upon any scale that can possibly be devised.

It is a signal advantage of taxes on articles of consumption,

that they contain in their own nature a security against excess.

They prescribe their own limit; which cannot be exceeded without

defeating the end proposed, that is, an extension of the revenue.

When applied to this object, the saying is as just as it is witty,

that, ``in political arithmetic, two and two do not always make four

.'' If duties are too high, they lessen the consumption; the

collection is eluded; and the product to the treasury is not so

great as when they are confined within proper and moderate bounds.

This forms a complete barrier against any material oppression of

the citizens by taxes of this class, and is itself a natural

limitation of the power of imposing them.

Impositions of this kind usually fall under the denomination of

indirect taxes, and must for a long time constitute the chief part

of the revenue raised in this country. Those of the direct kind,

which principally relate to land and buildings, may admit of a rule

of apportionment. Either the value of land, or the number of the

people, may serve as a standard. The state of agriculture and the

populousness of a country have been considered as nearly connected

with each other. And, as a rule, for the purpose intended, numbers,

in the view of simplicity and certainty, are entitled to a

preference. In every country it is a herculean task to obtain a

valuation of the land; in a country imperfectly settled and

progressive in improvement, the difficulties are increased almost to

impracticability. The expense of an accurate valuation is, in all

situations, a formidable objection. In a branch of taxation where

no limits to the discretion of the government are to be found in the

nature of things, the establishment of a fixed rule, not

incompatible with the end, may be attended with fewer inconveniences

than to leave that discretion altogether at large.

PUBLIUS.

 

FEDERALIST No. 22

The Same Subject Continued

(Other Defects of the Present Confederation)

From the New York Packet.

Friday, December 14, 1787.

HAMILTON

To the People of the State of New York:

IN ADDITION to the defects already enumerated in the existing

federal system, there are others of not less importance, which

concur in rendering it altogether unfit for the administration of

the affairs of the Union.

The want of a power to regulate commerce is by all parties

allowed to be of the number. The utility of such a power has been

anticipated under the first head of our inquiries; and for this

reason, as well as from the universal conviction entertained upon

the subject, little need be added in this place. It is indeed

evident, on the most superficial view, that there is no object,

either as it respects the interests of trade or finance, that more

strongly demands a federal superintendence. The want of it has

already operated as a bar to the formation of beneficial treaties

with foreign powers, and has given occasions of dissatisfaction

between the States. No nation acquainted with the nature of our

political association would be unwise enough to enter into

stipulations with the United States, by which they conceded

privileges of any importance to them, while they were apprised that

the engagements on the part of the Union might at any moment be

violated by its members, and while they found from experience that

they might enjoy every advantage they desired in our markets,

without granting us any return but such as their momentary

convenience might suggest. It is not, therefore, to be wondered at

that Mr. Jenkinson, in ushering into the House of Commons a bill for

regulating the temporary intercourse between the two countries,

should preface its introduction by a declaration that similar

provisions in former bills had been found to answer every purpose to

the commerce of Great Britain, and that it would be prudent to

persist in the plan until it should appear whether the American

government was likely or not to acquire greater consistency. [1]

Several States have endeavored, by separate prohibitions,

restrictions, and exclusions, to influence the conduct of that

kingdom in this particular, but the want of concert, arising from

the want of a general authority and from clashing and dissimilar

views in the State, has hitherto frustrated every experiment of the

kind, and will continue to do so as long as the same obstacles to a

uniformity of measures continue to exist.

The interfering and unneighborly regulations of some States,

contrary to the true spirit of the Union, have, in different

instances, given just cause of umbrage and complaint to others, and

it is to be feared that examples of this nature, if not restrained

by a national control, would be multiplied and extended till they

became not less serious sources of animosity and discord than

injurious impediments to the intcrcourse between the different parts

of the Confederacy. ``The commerce of the German empire [2] is in

continual trammels from the multiplicity of the duties which the

several princes and states exact upon the merchandises passing

through their territories, by means of which the fine streams and

navigable rivers with which Germany is so happily watered are

rendered almost useless.'' Though the genius of the people of this

country might never permit this description to be strictly

applicable to us, yet we may reasonably expect, from the gradual

conflicts of State regulations, that the citizens of each would at

length come to be considered and treated by the others in no better

light than that of foreigners and aliens.

The power of raising armies, by the most obvious construction of

the articles of the Confederation, is merely a power of making

requisitions upon the States for quotas of men. This practice in

the course of the late war, was found replete with obstructions to a

vigorous and to an economical system of defense. It gave birth to a

competition between the States which created a kind of auction for

men. In order to furnish the quotas required of them, they outbid

each other till bounties grew to an enormous and insupportable size.

The hope of a still further increase afforded an inducement to

those who were disposed to serve to procrastinate their enlistment,

and disinclined them from engaging for any considerable periods.

Hence, slow and scanty levies of men, in the most critical

emergencies of our affairs; short enlistments at an unparalleled

expense; continual fluctuations in the troops, ruinous to their

discipline and subjecting the public safety frequently to the

perilous crisis of a disbanded army. Hence, also, those oppressive

expedients for raising men which were upon several occasions

practiced, and which nothing but the enthusiasm of liberty would

have induced the people to endure.

This method of raising troops is not more unfriendly to economy

and vigor than it is to an equal distribution of the burden. The

States near the seat of war, influenced by motives of

self-preservation, made efforts to furnish their quotas, which even

exceeded their abilities; while those at a distance from danger

were, for the most part, as remiss as the others were diligent, in

their exertions. The immediate pressure of this inequality was not

in this case, as in that of the contributions of money, alleviated

by the hope of a final liquidation. The States which did not pay

their proportions of money might at least be charged with their

deficiencies; but no account could be formed of the deficiencies in

the supplies of men. We shall not, however, see much reason to

reget the want of this hope, when we consider how little prospect

there is, that the most delinquent States will ever be able to make

compensation for their pecuniary failures. The system of quotas and

requisitions, whether it be applied to men or money, is, in every

view, a system of imbecility in the Union, and of inequality and

injustice among the members.

The right of equal suffrage among the States is another

exceptionable part of the Confederation. Every idea of proportion

and every rule of fair representation conspire to condemn a

principle, which gives to Rhode Island an equal weight in the scale

of power with Massachusetts, or Connecticut, or New York; and to

Deleware an equal voice in the national deliberations with

Pennsylvania, or Virginia, or North Carolina. Its operation

contradicts the fundamental maxim of republican government, which

requires that the sense of the majority should prevail. Sophistry

may reply, that sovereigns are equal, and that a majority of the

votes of the States will be a majority of confederated America. But

this kind of logical legerdemain will never counteract the plain

suggestions of justice and common-sense. It may happen that this

majority of States is a small minority of the people of

America [3]; and two thirds of the people of America could not

long be persuaded, upon the credit of artificial distinctions and

syllogistic subtleties, to submit their interests to the management

and disposal of one third. The larger States would after a while

revolt from the idea of receiving the law from the smaller. To

acquiesce in such a privation of their due importance in the

political scale, would be not merely to be insensible to the love of

power, but even to sacrifice the desire of equality. It is neither

rational to expect the first, nor just to require the last. The

smaller States, considering how peculiarly their safety and welfare

depend on union, ought readily to renounce a pretension which, if

not relinquished, would prove fatal to its duration.

It may be objected to this, that not seven but nine States, or

two thirds of the whole number, must consent to the most important

resolutions; and it may be thence inferred that nine States would

always comprehend a majority of the Union. But this does not

obviate the impropriety of an equal vote between States of the most

unequal dimensions and populousness; nor is the inference accurate

in point of fact; for we can enumerate nine States which contain

less than a majority of the people [4]; and it is constitutionally

possible that these nine may give the vote. Besides, there are

matters of considerable moment determinable by a bare majority; and

there are others, concerning which doubts have been entertained,

which, if interpreted in favor of the sufficiency of a vote of seven

States, would extend its operation to interests of the first

magnitude. In addition to this, it is to be observed that there is

a probability of an increase in the number of States, and no

provision for a proportional augmentation of the ratio of votes.

But this is not all: what at first sight may seem a remedy, is,

in reality, a poison. To give a minority a negative upon the

majority (which is always the case where more than a majority is

requisite to a decision), is, in its tendency, to subject the sense

of the greater number to that of the lesser. Congress, from the

nonattendance of a few States, have been frequently in the situation

of a Polish diet, where a single VOTE has been sufficient to put a

stop to all their movements. A sixtieth part of the Union, which is

about the proportion of Delaware and Rhode Island, has several times

been able to oppose an entire bar to its operations. This is one of

those refinements which, in practice, has an effect the reverse of

what is expected from it in theory. The necessity of unanimity in

public bodies, or of something approaching towards it, has been

founded upon a supposition that it would contribute to security.

But its real operation is to embarrass the administration, to

destroy the energy of the government, and to substitute the

pleasure, caprice, or artifices of an insignificant, turbulent, or

corrupt junto, to the regular deliberations and decisions of a

respectable majority. In those emergencies of a nation, in which

the goodness or badness, the weakness or strength of its government,

is of the greatest importance, there is commonly a necessity for

action. The public business must, in some way or other, go forward.

If a pertinacious minority can control the opinion of a majority,

respecting the best mode of conducting it, the majority, in order

that something may be done, must conform to the views of the

minority; and thus the sense of the smaller number will overrule

that of the greater, and give a tone to the national proceedings.

Hence, tedious delays; continual negotiation and intrigue;

contemptible compromises of the public good. And yet, in such a

system, it is even happy when such compromises can take place: for

upon some occasions things will not admit of accommodation; and

then the measures of government must be injuriously suspended, or

fatally defeated. It is often, by the impracticability of obtaining

the concurrence of the necessary number of votes, kept in a state of

inaction. Its situation must always savor of weakness, sometimes

border upon anarchy.

It is not difficult to discover, that a principle of this kind

gives greater scope to foreign corruption, as well as to domestic

faction, than that which permits the sense of the majority to

decide; though the contrary of this has been presumed. The mistake

has proceeded from not attending with due care to the mischiefs that

may be occasioned by obstructing the progress of government at

certain critical seasons. When the concurrence of a large number is

required by the Constitution to the doing of any national act, we

are apt to rest satisfied that all is safe, because nothing improper

will be likely TO BE DONE, but we forget how much good may be

prevented, and how much ill may be produced, by the power of

hindering the doing what may be necessary, and of keeping affairs in

the same unfavorable posture in which they may happen to stand at

particular periods.

Suppose, for instance, we were engaged in a war, in conjunction

with one foreign nation, against another. Suppose the necessity of

our situation demanded peace, and the interest or ambition of our

ally led him to seek the prosecution of the war, with views that

might justify us in making separate terms. In such a state of

things, this ally of ours would evidently find it much easier, by

his bribes and intrigues, to tie up the hands of government from

making peace, where two thirds of all the votes were requisite to

that object, than where a simple majority would suffice. In the

first case, he would have to corrupt a smaller number; in the last,

a greater number. Upon the same principle, it would be much easier

for a foreign power with which we were at war to perplex our

councils and embarrass our exertions. And, in a commercial view, we

may be subjected to similar inconveniences. A nation, with which we

might have a treaty of commerce, could with much greater facility

prevent our forming a connection with her competitor in trade,

though such a connection should be ever so beneficial to ourselves.

Evils of this description ought not to be regarded as imaginary.

One of the weak sides of republics, among their numerous

advantages, is that they afford too easy an inlet to foreign

corruption. An hereditary monarch, though often disposed to

sacrifice his subjects to his ambition, has so great a personal

interest in the government and in the external glory of the nation,

that it is not easy for a foreign power to give him an equivalent

for what he would sacrifice by treachery to the state. The world

has accordingly been witness to few examples of this species of

royal prostitution, though there have been abundant specimens of

every other kind.

In republics, persons elevated from the mass of the community,

by the suffrages of their fellow-citizens, to stations of great

pre-eminence and power, may find compensations for betraying their

trust, which, to any but minds animated and guided by superior

virtue, may appear to exceed the proportion of interest they have in

the common stock, and to overbalance the obligations of duty. Hence

it is that history furnishes us with so many mortifying examples of

the prevalency of foreign corruption in republican governments. How

much this contributed to the ruin of the ancient commonwealths has

been already delineated. It is well known that the deputies of the

United Provinces have, in various instances, been purchased by the

emissaries of the neighboring kingdoms. The Earl of Chesterfield

(if my memory serves me right), in a letter to his court, intimates

that his success in an important negotiation must depend on his

obtaining a major's commission for one of those deputies. And in

Sweden the parties were alternately bought by France and England in

so barefaced and notorious a manner that it excited universal

disgust in the nation, and was a principal cause that the most

limited monarch in Europe, in a single day, without tumult,

violence, or opposition, became one of the most absolute and

uncontrolled.

A circumstance which crowns the defects of the Confederation

remains yet to be mentioned, the want of a judiciary power. Laws

are a dead letter without courts to expound and define their true

meaning and operation. The treaties of the United States, to have

any force at all, must be considered as part of the law of the land.

Their true import, as far as respects individuals, must, like all

other laws, be ascertained by judicial determinations. To produce

uniformity in these determinations, they ought to be submitted, in

the last resort, to one SUPREME TRIBUNAL. And this tribunal ought

to be instituted under the same authority which forms the treaties

themselves. These ingredients are both indispensable. If there is

in each State a court of final jurisdiction, there may be as many

different final determinations on the same point as there are courts.

There are endless diversities in the opinions of men. We often

see not only different courts but the judges of the came court

differing from each other. To avoid the confusion which would

unavoidably result from the contradictory decisions of a number of

independent judicatories, all nations have found it necessary to

establish one court paramount to the rest, possessing a general

superintendence, and authorized to settle and declare in the last

resort a uniform rule of civil justice.

This is the more necessary where the frame of the government is

so compounded that the laws of the whole are in danger of being

contravened by the laws of the parts. In this case, if the

particular tribunals are invested with a right of ultimate

jurisdiction, besides the contradictions to be expected from

difference of opinion, there will be much to fear from the bias of

local views and prejudices, and from the interference of local

regulations. As often as such an interference was to happen, there

would be reason to apprehend that the provisions of the particular

laws might be preferred to those of the general laws; for nothing

is more natural to men in office than to look with peculiar

deference towards that authority to which they owe their official

existence. The treaties of the United States, under the present

Constitution, are liable to the infractions of thirteen different

legislatures, and as many different courts of final jurisdiction,

acting under the authority of those legislatures. The faith, the

reputation, the peace of the whole Union, are thus continually at

the mercy of the prejudices, the passions, and the interests of

every member of which it is composed. Is it possible that foreign

nations can either respect or confide in such a government? Is it

possible that the people of America will longer consent to trust

their honor, their happiness, their safety, on so precarious a

foundation?

In this review of the Confederation, I have confined myself to

the exhibition of its most material defects; passing over those

imperfections in its details by which even a great part of the power

intended to be conferred upon it has been in a great measure

rendered abortive. It must be by this time evident to all men of

reflection, who can divest themselves of the prepossessions of

preconceived opinions, that it is a system so radically vicious and

unsound, as to admit not of amendment but by an entire change in its

leading features and characters.

The organization of Congress is itself utterly improper for the

exercise of those powers which are necessary to be deposited in the

Union. A single assembly may be a proper receptacle of those

slender, or rather fettered, authorities, which have been heretofore

delegated to the federal head; but it would be inconsistent with

all the principles of good government, to intrust it with those

additional powers which, even the moderate and more rational

adversaries of the proposed Constitution admit, ought to reside in

the United States. If that plan should not be adopted, and if the

necessity of the Union should be able to withstand the ambitious

aims of those men who may indulge magnificent schemes of personal

aggrandizement from its dissolution, the probability would be, that

we should run into the project of conferring supplementary powers

upon Congress, as they are now constituted; and either the machine,

from the intrinsic feebleness of its structure, will moulder into

pieces, in spite of our ill-judged efforts to prop it; or, by

successive augmentations of its force an energy, as necessity might

prompt, we shall finally accumulate, in a single body, all the most

important prerogatives of sovereignty, and thus entail upon our

posterity one of the most execrable forms of government that human

infatuation ever contrived. Thus, we should create in reality that

very tyranny which the adversaries of the new Constitution either

are, or affect to be, solicitous to avert.

It has not a little contributed to the infirmities of the

existing federal system, that it never had a ratification by the

PEOPLE. Resting on no better foundation than the consent of the

several legislatures, it has been exposed to frequent and intricate

questions concerning the validity of its powers, and has, in some

instances, given birth to the enormous doctrine of a right of

legislative repeal. Owing its ratification to the law of a State,

it has been contended that the same authority might repeal the law

by which it was ratified. However gross a heresy it may be to

maintain that a PARTY to a COMPACT has a right to revoke that

COMPACT, the doctrine itself has had respectable advocates. The

possibility of a question of this nature proves the necessity of

laying the foundations of our national government deeper than in the

mere sanction of delegated authority. The fabric of American empire

ought to rest on the solid basis of THE CONSENT OF THE PEOPLE. The

streams of national power ought to flow immediately from that pure,

original fountain of all legitimate authority.

PUBLIUS.

FNA1-@1 This, as nearly as I can recollect, was the sense of his

speech on introducing the last bill.

FNA1-@2 Encyclopedia, article ``Empire.''

FNA1-@3 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.

FNA1-@4 Add New York and Connecticut to the foregoing seven, and they

will be less than a majority.

 

FEDERALIST No. 23

The Necessity of a Government as Energetic as the One Proposed to

the Preservation of the Union

From the New York Packet.

Tuesday, December 18, 1787.

HAMILTON

To the People of the State of New York:

THE necessity of a Constitution, at least equally energetic with

the one proposed, to the preservation of the Union, is the point at

the examination of which we are now arrived.

This inquiry will naturally divide itself into three

branches the objects to be provided for by the federal government,

the quantity of power necessary to the accomplishment of those

objects, the persons upon whom that power ought to operate. Its

distribution and organization will more properly claim our attention

under the succeeding head.

The principal purposes to be answered by union are these the

common defense of the members; the preservation of the public peace

as well against internal convulsions as external attacks; the

regulation of commerce with other nations and between the States;

the superintendence of our intercourse, political and commercial,

with foreign countries.

The authorities essential to the common defense are these: to

raise armies; to build and equip fleets; to prescribe rules for

the government of both; to direct their operations; to provide for

their support. These powers ought to exist without limitation,

BECAUSE IT IS IMPOSSIBLE TO FORESEE OR DEFINE THE EXTENT AND VARIETY

OF NATIONAL EXIGENCIES, OR THE CORRESPONDENT EXTENT AND VARIETY OF

THE MEANS WHICH MAY BE NECESSARY TO SATISFY THEM. The circumstances

that endanger the safety of nations are infinite, and for this

reason no constitutional shackles can wisely be imposed on the power

to which the care of it is committed. This power ought to be

coextensive with all the possible combinations of such

circumstances; and ought to be under the direction of the same

councils which are appointed to preside over the common defense.

This is one of those truths which, to a correct and unprejudiced

mind, carries its own evidence along with it; and may be obscured,

but cannot be made plainer by argument or reasoning. It rests upon

axioms as simple as they are universal; the MEANS ought to be

proportioned to the END; the persons, from whose agency the

attainment of any END is expected, ought to possess the MEANS by

which it is to be attained.

Whether there ought to be a federal government intrusted with

the care of the common defense, is a question in the first instance,

open for discussion; but the moment it is decided in the

affirmative, it will follow, that that government ought to be

clothed with all the powers requisite to complete execution of its

trust. And unless it can be shown that the circumstances which may

affect the public safety are reducible within certain determinate

limits; unless the contrary of this position can be fairly and

rationally disputed, it must be admitted, as a necessary

consequence, that there can be no limitation of that authority which

is to provide for the defense and protection of the community, in

any matter essential to its efficacy that is, in any matter

essential to the FORMATION, DIRECTION, or SUPPORT of the NATIONAL

FORCES.

Defective as the present Confederation has been proved to be,

this principle appears to have been fully recognized by the framers

of it; though they have not made proper or adequate provision for

its exercise. Congress have an unlimited discretion to make

requisitions of men and money; to govern the army and navy; to

direct their operations. As their requisitions are made

constitutionally binding upon the States, who are in fact under the

most solemn obligations to furnish the supplies required of them,

the intention evidently was that the United States should command

whatever resources were by them judged requisite to the ``common

defense and general welfare.'' It was presumed that a sense of

their true interests, and a regard to the dictates of good faith,

would be found sufficient pledges for the punctual performance of

the duty of the members to the federal head.

The experiment has, however, demonstrated that this expectation

was ill-founded and illusory; and the observations, made under the

last head, will, I imagine, have sufficed to convince the impartial

and discerning, that there is an absolute necessity for an entire

change in the first principles of the system; that if we are in

earnest about giving the Union energy and duration, we must abandon

the vain project of legislating upon the States in their collective

capacities; we must extend the laws of the federal government to

the individual citizens of America; we must discard the fallacious

scheme of quotas and requisitions, as equally impracticable and

unjust. The result from all this is that the Union ought to be

invested with full power to levy troops; to build and equip fleets;

and to raise the revenues which will be required for the formation

and support of an army and navy, in the customary and ordinary modes

practiced in other governments.

If the circumstances of our country are such as to demand a

compound instead of a simple, a confederate instead of a sole,

government, the essential point which will remain to be adjusted

will be to discriminate the OBJECTS, as far as it can be done, which

shall appertain to the different provinces or departments of power;

allowing to each the most ample authority for fulfilling the

objects committed to its charge. Shall the Union be constituted the

guardian of the common safety? Are fleets and armies and revenues

necessary to this purpose? The government of the Union must be

empowered to pass all laws, and to make all regulations which have

relation to them. The same must be the case in respect to commerce,

and to every other matter to which its jurisdiction is permitted to

extend. Is the administration of justice between the citizens of

the same State the proper department of the local governments?

These must possess all the authorities which are connected with

this object, and with every other that may be allotted to their

particular cognizance and direction. Not to confer in each case a

degree of power commensurate to the end, would be to violate the

most obvious rules of prudence and propriety, and improvidently to

trust the great interests of the nation to hands which are disabled

from managing them with vigor and success.

Who is likely to make suitable provisions for the public

defense, as that body to which the guardianship of the public safety

is confided; which, as the centre of information, will best

understand the extent and urgency of the dangers that threaten; as

the representative of the WHOLE, will feel itself most deeply

interested in the preservation of every part; which, from the

responsibility implied in the duty assigned to it, will be most

sensibly impressed with the necessity of proper exertions; and

which, by the extension of its authority throughout the States, can

alone establish uniformity and concert in the plans and measures by

which the common safety is to be secured? Is there not a manifest

inconsistency in devolving upon the federal government the care of

the general defense, and leaving in the State governments the

EFFECTIVE powers by which it is to be provided for? Is not a want

of co-operation the infallible consequence of such a system? And

will not weakness, disorder, an undue distribution of the burdens

and calamities of war, an unnecessary and intolerable increase of

expense, be its natural and inevitable concomitants? Have we not

had unequivocal experience of its effects in the course of the

revolution which we have just accomplished?

Every view we may take of the subject, as candid inquirers after

truth, will serve to convince us, that it is both unwise and

dangerous to deny the federal government an unconfined authority, as

to all those objects which are intrusted to its management. It will

indeed deserve the most vigilant and careful attention of the

people, to see that it be modeled in such a manner as to admit of

its being safely vested with the requisite powers. If any plan

which has been, or may be, offered to our consideration, should not,

upon a dispassionate inspection, be found to answer this

description, it ought to be rejected. A government, the

constitution of which renders it unfit to be trusted with all the

powers which a free people OUGHT TO DELEGATE TO ANY GOVERNMENT,

would be an unsafe and improper depositary of the NATIONAL INTERESTS.

Wherever THESE can with propriety be confided, the coincident

powers may safely accompany them. This is the true result of all

just reasoning upon the subject. And the adversaries of the plan

promulgated by the convention ought to have confined themselves to

showing, that the internal structure of the proposed government was

such as to render it unworthy of the confidence of the people. They

ought not to have wandered into inflammatory declamations and

unmeaning cavils about the extent of the powers. The POWERS are not

too extensive for the OBJECTS of federal administration, or, in

other words, for the management of our NATIONAL INTERESTS; nor can

any satisfactory argument be framed to show that they are chargeable

with such an excess. If it be true, as has been insinuated by some

of the writers on the other side, that the difficulty arises from

the nature of the thing, and that the extent of the country will not

permit us to form a government in which such ample powers can safely

be reposed, it would prove that we ought to contract our views, and

resort to the expedient of separate confederacies, which will move

within more practicable spheres. For the absurdity must continually

stare us in the face of confiding to a government the direction of

the most essential national interests, without daring to trust it to

the authorities which are indispensible to their proper and

efficient management. Let us not attempt to reconcile

contradictions, but firmly embrace a rational alternative.

I trust, however, that the impracticability of one general

system cannot be shown. I am greatly mistaken, if any thing of

weight has yet been advanced of this tendency; and I flatter

myself, that the observations which have been made in the course of

these papers have served to place the reverse of that position in as

clear a light as any matter still in the womb of time and experience

can be susceptible of. This, at all events, must be evident, that

the very difficulty itself, drawn from the extent of the country, is

the strongest argument in favor of an energetic government; for any

other can certainly never preserve the Union of so large an empire.

If we embrace the tenets of those who oppose the adoption of the

proposed Constitution, as the standard of our political creed, we

cannot fail to verify the gloomy doctrines which predict the

impracticability of a national system pervading entire limits of the

present Confederacy.

PUBLIUS.

 

FEDERALIST No. 24

The Powers Necessary to the Common Defense Further Considered

For the Independent Journal.

HAMILTON

To the People of the State of New York:

To THE powers proposed to be conferred upon the federal

government, in respect to the creation and direction of the national

forces, I have met with but one specific objection, which, if I

understand it right, is this, that proper provision has not been

made against the existence of standing armies in time of peace; an

objection which, I shall now endeavor to show, rests on weak and

unsubstantial foundations.

It has indeed been brought forward in the most vague and general

form, supported only by bold assertions, without the appearance of

argument; without even the sanction of theoretical opinions; in

contradiction to the practice of other free nations, and to the

general sense of America, as expressed in most of the existing

constitutions. The proprietory of this remark will appear, the

moment it is recollected that the objection under consideration

turns upon a supposed necessity of restraining the LEGISLATIVE

authority of the nation, in the article of military establishments;

a principle unheard of, except in one or two of our State

constitutions, and rejected in all the rest.

A stranger to our politics, who was to read our newspapers at

the present juncture, without having previously inspected the plan

reported by the convention, would be naturally led to one of two

conclusions: either that it contained a positive injunction, that

standing armies should be kept up in time of peace; or that it

vested in the EXECUTIVE the whole power of levying troops, without

subjecting his discretion, in any shape, to the control of the

legislature.

If he came afterwards to peruse the plan itself, he would be

surprised to discover, that neither the one nor the other was the

case; that the whole power of raising armies was lodged in the

LEGISLATURE, not in the EXECUTIVE; that this legislature was to be

a popular body, consisting of the representatives of the people

periodically elected; and that instead of the provision he had

supposed in favor of standing armies, there was to be found, in

respect to this object, an important qualification even of the

legislative discretion, in that clause which forbids the

appropriation of money for the support of an army for any longer

period than two years a precaution which, upon a nearer view of it,

will appear to be a great and real security against the keeping up

of troops without evident necessity.

Disappointed in his first surmise, the person I have supposed

would be apt to pursue his conjectures a little further. He would

naturally say to himself, it is impossible that all this vehement

and pathetic declamation can be without some colorable pretext. It

must needs be that this people, so jealous of their liberties, have,

in all the preceding models of the constitutions which they have

established, inserted the most precise and rigid precautions on this

point, the omission of which, in the new plan, has given birth to

all this apprehension and clamor.

If, under this impression, he proceeded to pass in review the

several State constitutions, how great would be his disappointment

to find that TWO ONLY of them [1] contained an interdiction of

standing armies in time of peace; that the other eleven had either

observed a profound silence on the subject, or had in express terms

admitted the right of the Legislature to authorize their existence.

Still, however he would be persuaded that there must be some

plausible foundation for the cry raised on this head. He would

never be able to imagine, while any source of information remained

unexplored, that it was nothing more than an experiment upon the

public credulity, dictated either by a deliberate intention to

deceive, or by the overflowings of a zeal too intemperate to be

ingenuous. It would probably occur to him, that he would be likely

to find the precautions he was in search of in the primitive compact

between the States. Here, at length, he would expect to meet with a

solution of the enigma. No doubt, he would observe to himself, the

existing Confederation must contain the most explicit provisions

against military establishments in time of peace; and a departure

from this model, in a favorite point, has occasioned the discontent

which appears to influence these political champions.

If he should now apply himself to a careful and critical survey

of the articles of Confederation, his astonishment would not only be

increased, but would acquire a mixture of indignation, at the

unexpected discovery, that these articles, instead of containing the

prohibition he looked for, and though they had, with jealous

circumspection, restricted the authority of the State legislatures

in this particular, had not imposed a single restraint on that of

the United States. If he happened to be a man of quick sensibility,

or ardent temper, he could now no longer refrain from regarding

these clamors as the dishonest artifices of a sinister and

unprincipled opposition to a plan which ought at least to receive a

fair and candid examination from all sincere lovers of their

country! How else, he would say, could the authors of them have

been tempted to vent such loud censures upon that plan, about a

point in which it seems to have conformed itself to the general

sense of America as declared in its different forms of government,

and in which it has even superadded a new and powerful guard unknown

to any of them? If, on the contrary, he happened to be a man of

calm and dispassionate feelings, he would indulge a sigh for the

frailty of human nature, and would lament, that in a matter so

interesting to the happiness of millions, the true merits of the

question should be perplexed and entangled by expedients so

unfriendly to an impartial and right determination. Even such a man

could hardly forbear remarking, that a conduct of this kind has too

much the appearance of an intention to mislead the people by

alarming their passions, rather than to convince them by arguments

addressed to their understandings.

But however little this objection may be countenanced, even by

precedents among ourselves, it may be satisfactory to take a nearer

view of its intrinsic merits. From a close examination it will

appear that restraints upon the discretion of the legislature in

respect to military establishments in time of peace, would be

improper to be imposed, and if imposed, from the necessities of

society, would be unlikely to be observed.

Though a wide ocean separates the United States from Europe, yet

there are various considerations that warn us against an excess of

confidence or security. On one side of us, and stretching far into

our rear, are growing settlements subject to the dominion of Britain.

On the other side, and extending to meet the British settlements,

are colonies and establishments subject to the dominion of Spain.

This situation and the vicinity of the West India Islands,

belonging to these two powers create between them, in respect to

their American possessions and in relation to us, a common interest.

The savage tribes on our Western frontier ought to be regarded as

our natural enemies, their natural allies, because they have most to

fear from us, and most to hope from them. The improvements in the

art of navigation have, as to the facility of communication,

rendered distant nations, in a great measure, neighbors. Britain

and Spain are among the principal maritime powers of Europe. A

future concert of views between these nations ought not to be

regarded as improbable. The increasing remoteness of consanguinity

is every day diminishing the force of the family compact between

France and Spain. And politicians have ever with great reason

considered the ties of blood as feeble and precarious links of

political connection. These circumstances combined, admonish us not

to be too sanguine in considering ourselves as entirely out of the

reach of danger.

Previous to the Revolution, and ever since the peace, there has

been a constant necessity for keeping small garrisons on our Western

frontier. No person can doubt that these will continue to be

indispensable, if it should only be against the ravages and

depredations of the Indians. These garrisons must either be

furnished by occasional detachments from the militia, or by

permanent corps in the pay of the government. The first is

impracticable; and if practicable, would be pernicious. The

militia would not long, if at all, submit to be dragged from their

occupations and families to perform that most disagreeable duty in

times of profound peace. And if they could be prevailed upon or

compelled to do it, the increased expense of a frequent rotation of

service, and the loss of labor and disconcertion of the industrious

pursuits of individuals, would form conclusive objections to the

scheme. It would be as burdensome and injurious to the public as

ruinous to private citizens. The latter resource of permanent corps

in the pay of the government amounts to a standing army in time of

peace; a small one, indeed, but not the less real for being small.

Here is a simple view of the subject, that shows us at once the

impropriety of a constitutional interdiction of such establishments,

and the necessity of leaving the matter to the discretion and

prudence of the legislature.

In proportion to our increase in strength, it is probable, nay,

it may be said certain, that Britain and Spain would augment their

military establishments in our neighborhood. If we should not be

willing to be exposed, in a naked and defenseless condition, to

their insults and encroachments, we should find it expedient to

increase our frontier garrisons in some ratio to the force by which

our Western settlements might be annoyed. There are, and will be,

particular posts, the possession of which will include the command

of large districts of territory, and facilitate future invasions of

the remainder. It may be added that some of those posts will be

keys to the trade with the Indian nations. Can any man think it

would be wise to leave such posts in a situation to be at any

instant seized by one or the other of two neighboring and formidable

powers? To act this part would be to desert all the usual maxims of

prudence and policy.

If we mean to be a commercial people, or even to be secure on

our Atlantic side, we must endeavor, as soon as possible, to have a

navy. To this purpose there must be dock-yards and arsenals; and

for the defense of these, fortifications, and probably garrisons.

When a nation has become so powerful by sea that it can protect its

dock-yards by its fleets, this supersedes the necessity of garrisons

for that purpose; but where naval establishments are in their

infancy, moderate garrisons will, in all likelihood, be found an

indispensable security against descents for the destruction of the

arsenals and dock-yards, and sometimes of the fleet itself.

PUBLIUS.

FNA1-@1 This statement of the matter is taken from the printed

collection of State constitutions. Pennsylvania and North Carolina

are the two which contain the interdiction in these words: ``As

standing armies in time of peace are dangerous to liberty, THEY

OUGHT NOT to be kept up.'' This is, in truth, rather a CAUTION than

a PROHIBITION. New Hampshire, Massachusetts, Delaware, and Maryland

have, in each of their bils of rights, a clause to this effect:

``Standing armies are dangerous to liberty, and ought not to be

raised or kept up WITHOUT THE CONSENT OF THE LEGISLATURE''; which

is a formal admission of the authority of the Legislature. New York

has no bills of rights, and her constitution says not a word about

the matter. No bills of rights appear annexed to the constitutions

of the other States, except the foregoing, and their constitutions

are equally silent. I am told, however that one or two States have

bills of rights which do not appear in this collection; but that

those also recognize the right of the legislative authority in this

respect.

 

FEDERALIST No. 25

The Same Subject Continued

(The Powers Necessary to the Common Defense Further Considered)

From the New York Packet.

Friday, December 21, 1787.

HAMILTON

To the People of the State of New York:

IT MAY perhaps be urged that the objects enumerated in the

preceding number ought to be provided for by the State governments,

under the direction of the Union. But this would be, in reality, an

inversion of the primary principle of our political association, as

it would in practice transfer the care of the common defense from

the federal head to the individual members: a project oppressive to

some States, dangerous to all, and baneful to the Confederacy.

The territories of Britain, Spain, and of the Indian nations in

our neighborhood do not border on particular States, but encircle

the Union from Maine to Georgia. The danger, though in different

degrees, is therefore common. And the means of guarding against it

ought, in like manner, to be the objects of common councils and of a

common treasury. It happens that some States, from local situation,

are more directly exposed. New York is of this class. Upon the

plan of separate provisions, New York would have to sustain the

whole weight of the establishments requisite to her immediate

safety, and to the mediate or ultimate protection of her neighbors.

This would neither be equitable as it respected New York nor safe

as it respected the other States. Various inconveniences would

attend such a system. The States, to whose lot it might fall to

support the necessary establishments, would be as little able as

willing, for a considerable time to come, to bear the burden of

competent provisions. The security of all would thus be subjected

to the parsimony, improvidence, or inability of a part. If the

resources of such part becoming more abundant and extensive, its

provisions should be proportionally enlarged, the other States would

quickly take the alarm at seeing the whole military force of the

Union in the hands of two or three of its members, and those

probably amongst the most powerful. They would each choose to have

some counterpoise, and pretenses could easily be contrived. In this

situation, military establishments, nourished by mutual jealousy,

would be apt to swell beyond their natural or proper size; and

being at the separate disposal of the members, they would be engines

for the abridgment or demolition of the national authcrity.

Reasons have been already given to induce a supposition that the

State governments will too naturally be prone to a rivalship with

that of the Union, the foundation of which will be the love of

power; and that in any contest between the federal head and one of

its members the people will be most apt to unite with their local

government. If, in addition to this immense advantage, the ambition

of the members should be stimulated by the separate and independent

possession of military forces, it would afford too strong a

temptation and too great a facility to them to make enterprises

upon, and finally to subvert, the constitutional authority of the

Union. On the other hand, the liberty of the people would be less

safe in this state of things than in that which left the national

forces in the hands of the national government. As far as an army

may be considered as a dangerous weapon of power, it had better be

in those hands of which the people are most likely to be jealous

than in those of which they are least likely to be jealous. For it

is a truth, which the experience of ages has attested, that the

people are always most in danger when the means of injuring their

rights are in the possession of those of whom they entertain the

least suspicion.

The framers of the existing Confederation, fully aware of the

danger to the Union from the separate possession of military forces

by the States, have, in express terms, prohibited them from having

either ships or troops, unless with the consent of Congress. The

truth is, that the existence of a federal government and military

establishments under State authority are not less at variance with

each other than a due supply of the federal treasury and the system

of quotas and requisitions.

There are other lights besides those already taken notice of, in

which the impropriety of restraints on the discretion of the

national legislature will be equally manifest. The design of the

objection, which has been mentioned, is to preclude standing armies

in time of peace, though we have never been informed how far it is

designed the prohibition should extend; whether to raising armies

as well as to KEEPING THEM UP in a season of tranquillity or not.

If it be confined to the latter it will have no precise

signification, and it will be ineffectual for the purpose intended.

When armies are once raised what shall be denominated ``keeping

them up,'' contrary to the sense of the Constitution? What time

shall be requisite to ascertain the violation? Shall it be a week,

a month, a year? Or shall we say they may be continued as long as

the danger which occasioned their being raised continues? This

would be to admit that they might be kept up IN TIME OF PEACE,

against threatening or impending danger, which would be at once to

deviate from the literal meaning of the prohibition, and to

introduce an extensive latitude of construction. Who shall judge of

the continuance of the danger? This must undoubtedly be submitted

to the national government, and the matter would then be brought to

this issue, that the national government, to provide against

apprehended danger, might in the first instance raise troops, and

might afterwards keep them on foot as long as they supposed the

peace or safety of the community was in any degree of jeopardy. It

is easy to perceive that a discretion so latitudinary as this would

afford ample room for eluding the force of the provision.

The supposed utility of a provision of this kind can only be

founded on the supposed probability, or at least possibility, of a

combination between the executive and the legislative, in some

scheme of usurpation. Should this at any time happen, how easy

would it be to fabricate pretenses of approaching danger! Indian

hostilities, instigated by Spain or Britain, would always be at hand.

Provocations to produce the desired appearances might even be

given to some foreign power, and appeased again by timely

concessions. If we can reasonably presume such a combination to

have been formed, and that the enterprise is warranted by a

sufficient prospect of success, the army, when once raised, from

whatever cause, or on whatever pretext, may be applied to the

execution of the project.

If, to obviate this consequence, it should be resolved to extend

the prohibition to the RAISING of armies in time of peace, the

United States would then exhibit the most extraordinary spectacle

which the world has yet seen, that of a nation incapacitated by its

Constitution to prepare for defense, before it was actually invaded.

As the ceremony of a formal denunciation of war has of late fallen

into disuse, the presence of an enemy within our territories must be

waited for, as the legal warrant to the government to begin its

levies of men for the protection of the State. We must receive the

blow, before we could even prepare to return it. All that kind of

policy by which nations anticipate distant danger, and meet the

gathering storm, must be abstained from, as contrary to the genuine

maxims of a free government. We must expose our property and

liberty to the mercy of foreign invaders, and invite them by our

weakness to seize the naked and defenseless prey, because we are

afraid that rulers, created by our choice, dependent on our will,

might endanger that liberty, by an abuse of the means necessary to

its preservation.

Here I expect we shall be told that the militia of the country

is its natural bulwark, and would be at all times equal to the

national defense. This doctrine, in substance, had like to have

lost us our independence. It cost millions to the United States

that might have been saved. The facts which, from our own

experience, forbid a reliance of this kind, are too recent to permit

us to be the dupes of such a suggestion. The steady operations of

war against a regular and disciplined army can only be successfully

conducted by a force of the same kind. Considerations of economy,

not less than of stability and vigor, confirm this position. The

American militia, in the course of the late war, have, by their

valor on numerous occasions, erected eternal monuments to their

fame; but the bravest of them feel and know that the liberty of

their country could not have been established by their efforts

alone, however great and valuable they were. War, like most other

things, is a science to be acquired and perfected by diligence, by

perserverance, by time, and by practice.

All violent policy, as it is contrary to the natural and

experienced course of human affairs, defeats itself. Pennsylvania,

at this instant, affords an example of the truth of this remark.

The Bill of Rights of that State declares that standing armies are

dangerous to liberty, and ought not to be kept up in time of peace.

Pennsylvania, nevertheless, in a time of profound peace, from the

existence of partial disorders in one or two of her counties, has

resolved to raise a body of troops; and in all probability will

keep them up as long as there is any appearance of danger to the

public peace. The conduct of Massachusetts affords a lesson on the

same subject, though on different ground. That State (without

waiting for the sanction of Congress, as the articles of the

Confederation require) was compelled to raise troops to quell a

domestic insurrection, and still keeps a corps in pay to prevent a

revival of the spirit of revolt. The particular constitution of

Massachusetts opposed no obstacle to the measure; but the instance

is still of use to instruct us that cases are likely to occur under

our government, as well as under those of other nations, which will

sometimes render a military force in time of peace essential to the

security of the society, and that it is therefore improper in this

respect to control the legislative discretion. It also teaches us,

in its application to the United States, how little the rights of a

feeble government are likely to be respected, even by its own

constituents. And it teaches us, in addition to the rest, how

unequal parchment provisions are to a struggle with public necessity

.

It was a fundamental maxim of the Lacedaemonian commonwealth,

that the post of admiral should not be conferred twice on the same

person. The Peloponnesian confederates, having suffered a severe

defeat at sea from the Athenians, demanded Lysander, who had before

served with success in that capacity, to command the combined fleets.

The Lacedaemonians, to gratify their allies, and yet preserve the

semblance of an adherence to their ancient institutions, had

recourse to the flimsy subterfuge of investing Lysander with the

real power of admiral, under the nominal title of vice-admiral.

This instance is selected from among a multitude that might be

cited to confirm the truth already advanced and illustrated by

domestic examples; which is, that nations pay little regard to

rules and maxims calculated in their very nature to run counter to

the necessities of society. Wise politicians will be cautious about

fettering the government with restrictions that cannot be observed,

because they know that every breach of the fundamental laws, though

dictated by necessity, impairs that sacred reverence which ought to

be maintained in the breast of rulers towards the constitution of a

country, and forms a precedent for other breaches where the same

plea of necessity does not exist at all, or is less urgent and

palpable.

PUBLIUS.

 

FEDERALIST No. 26

The Idea of Restraining the Legislative Authority in Regard to the

Common Defense Considered

For the Independent Journal.

HAMILTON

To the People of the State of New York:

IT WAS a thing hardly to be expected that in a popular

revolution the minds of men should stop at that happy mean which

marks the salutary boundary between POWER and PRIVILEGE, and

combines the energy of government with the security of private

rights. A failure in this delicate and important point is the great

source of the inconveniences we experience, and if we are not

cautious to avoid a repetition of the error, in our future attempts

to rectify and ameliorate our system, we may travel from one

chimerical project to another; we may try change after change; but

we shall never be likely to make any material change for the better.

The idea of restraining the legislative authority, in the means

of providing for the national defense, is one of those refinements

which owe their origin to a zeal for liberty more ardent than

enlightened. We have seen, however, that it has not had thus far an

extensive prevalency; that even in this country, where it made its

first appearance, Pennsylvania and North Carolina are the only two

States by which it has been in any degree patronized; and that all

the others have refused to give it the least countenance; wisely

judging that confidence must be placed somewhere; that the

necessity of doing it, is implied in the very act of delegating

power; and that it is better to hazard the abuse of that confidence

than to embarrass the government and endanger the public safety by

impolitic restrictions on the legislative authority. The opponents

of the proposed Constitution combat, in this respect, the general

decision of America; and instead of being taught by experience the

propriety of correcting any extremes into which we may have

heretofore run, they appear disposed to conduct us into others still

more dangerous, and more extravagant. As if the tone of government

had been found too high, or too rigid, the doctrines they teach are

calculated to induce us to depress or to relax it, by expedients

which, upon other occasions, have been condemned or forborne. It

may be affirmed without the imputation of invective, that if the

principles they inculcate, on various points, could so far obtain as

to become the popular creed, they would utterly unfit the people of

this country for any species of government whatever. But a danger

of this kind is not to be apprehended. The citizens of America have

too much discernment to be argued into anarchy. And I am much

mistaken, if experience has not wrought a deep and solemn conviction

in the public mind, that greater energy of government is essential

to the welfare and prosperity of the community.

It may not be amiss in this place concisely to remark the origin

and progress of the idea, which aims at the exclusion of military

establishments in time of peace. Though in speculative minds it may

arise from a contemplation of the nature and tendency of such

institutions, fortified by the events that have happened in other

ages and countries, yet as a national sentiment, it must be traced

to those habits of thinking which we derive from the nation from

whom the inhabitants of these States have in general sprung.

In England, for a long time after the Norman Conquest, the

authority of the monarch was almost unlimited. Inroads were

gradually made upon the prerogative, in favor of liberty, first by

the barons, and afterwards by the people, till the greatest part of

its most formidable pretensions became extinct. But it was not till

the revolution in 1688, which elevated the Prince of Orange to the

throne of Great Britain, that English liberty was completely

triumphant. As incident to the undefined power of making war, an

acknowledged prerogative of the crown, Charles II. had, by his own

authority, kept on foot in time of peace a body of 5,000 regular

troops. And this number James II. increased to 30,000; who were

paid out of his civil list. At the revolution, to abolish the

exercise of so dangerous an authority, it became an article of the

Bill of Rights then framed, that ``the raising or keeping a standing

army within the kingdom in time of peace, UNLESS WITH THE CONSENT OF

PARLIAMENT, was against law.''

In that kingdom, when the pulse of liberty was at its highest

pitch, no security against the danger of standing armies was thought

requisite, beyond a prohibition of their being raised or kept up by

the mere authority of the executive magistrate. The patriots, who

effected that memorable revolution, were too temperate, too

wellinformed, to think of any restraint on the legislative

discretion. They were aware that a certain number of troops for

guards and garrisons were indispensable; that no precise bounds

could be set to the national exigencies; that a power equal to

every possible contingency must exist somewhere in the government:

and that when they referred the exercise of that power to the

judgment of the legislature, they had arrived at the ultimate point

of precaution which was reconcilable with the safety of the

community.

From the same source, the people of America may be said to have

derived an hereditary impression of danger to liberty, from standing

armies in time of peace. The circumstances of a revolution

quickened the public sensibility on every point connected with the

security of popular rights, and in some instances raise the warmth

of our zeal beyond the degree which consisted with the due

temperature of the body politic. The attempts of two of the States

to restrict the authority of the legislature in the article of

military establishments, are of the number of these instances. The

principles which had taught us to be jealous of the power of an

hereditary monarch were by an injudicious excess extended to the

representatives of the people in their popular assemblies. Even in

some of the States, where this error was not adopted, we find

unnecessary declarations that standing armies ought not to be kept

up, in time of peace, WITHOUT THE CONSENT OF THE LEGISLATURE. I

call them unnecessary, because the reason which had introduced a

similar provision into the English Bill of Rights is not applicable

to any of the State constitutions. The power of raising armies at

all, under those constitutions, can by no construction be deemed to

reside anywhere else, than in the legislatures themselves; and it

was superfluous, if not absurd, to declare that a matter should not

be done without the consent of a body, which alone had the power of

doing it. Accordingly, in some of these constitutions, and among

others, in that of this State of New York, which has been justly

celebrated, both in Europe and America, as one of the best of the

forms of government established in this country, there is a total

silence upon the subject.

It is remarkable, that even in the two States which seem to have

meditated an interdiction of military establishments in time of

peace, the mode of expression made use of is rather cautionary than

prohibitory. It is not said, that standing armies SHALL NOT BE kept

up, but that they OUGHT NOT to be kept up, in time of peace. This

ambiguity of terms appears to have been the result of a conflict

between jealousy and conviction; between the desire of excluding

such establishments at all events, and the persuasion that an

absolute exclusion would be unwise and unsafe.

Can it be doubted that such a provision, whenever the situation

of public affairs was understood to require a departure from it,

would be interpreted by the legislature into a mere admonition, and

would be made to yield to the necessities or supposed necessities of

the State? Let the fact already mentioned, with respect to

Pennsylvania, decide. What then (it may be asked) is the use of

such a provision, if it cease to operate the moment there is an

inclination to disregard it?

Let us examine whether there be any comparison, in point of

efficacy, between the provision alluded to and that which is

contained in the new Constitution, for restraining the

appropriations of money for military purposes to the period of two

years. The former, by aiming at too much, is calculated to effect

nothing; the latter, by steering clear of an imprudent extreme, and

by being perfectly compatible with a proper provision for the

exigencies of the nation, will have a salutary and powerful

operation.

The legislature of the United States will be OBLIGED, by this

provision, once at least in every two years, to deliberate upon the

propriety of keeping a military force on foot; to come to a new

resolution on the point; and to declare their sense of the matter,

by a formal vote in the face of their constituents. They are not AT

LIBERTY to vest in the executive department permanent funds for the

support of an army, if they were even incautious enough to be

willing to repose in it so improper a confidence. As the spirit of

party, in different degrees, must be expected to infect all

political bodies, there will be, no doubt, persons in the national

legislature willing enough to arraign the measures and criminate the

views of the majority. The provision for the support of a military

force will always be a favorable topic for declamation. As often as

the question comes forward, the public attention will be roused and

attracted to the subject, by the party in opposition; and if the

majority should be really disposed to exceed the proper limits, the

community will be warned of the danger, and will have an opportunity

of taking measures to guard against it. Independent of parties in

the national legislature itself, as often as the period of

discussion arrived, the State legislatures, who will always be not

only vigilant but suspicious and jealous guardians of the rights of

the citizens against encroachments from the federal government, will

constantly have their attention awake to the conduct of the national

rulers, and will be ready enough, if any thing improper appears, to

sound the alarm to the people, and not only to be the VOICE, but, if

necessary, the ARM of their discontent.

Schemes to subvert the liberties of a great community REQUIRE

TIME to mature them for execution. An army, so large as seriously

to menace those liberties, could only be formed by progressive

augmentations; which would suppose, not merely a temporary

combination between the legislature and executive, but a continued

conspiracy for a series of time. Is it probable that such a

combination would exist at all? Is it probable that it would be

persevered in, and transmitted along through all the successive

variations in a representative body, which biennial elections would

naturally produce in both houses? Is it presumable, that every man,

the instant he took his seat in the national Senate or House of

Representatives, would commence a traitor to his constituents and to

his country? Can it be supposed that there would not be found one

man, discerning enough to detect so atrocious a conspiracy, or bold

or honest enough to apprise his constituents of their danger? If

such presumptions can fairly be made, there ought at once to be an

end of all delegated authority. The people should resolve to recall

all the powers they have heretofore parted with out of their own

hands, and to divide themselves into as many States as there are

counties, in order that they may be able to manage their own

concerns in person.

If such suppositions could even be reasonably made, still the

concealment of the design, for any duration, would be impracticable.

It would be announced, by the very circumstance of augmenting the

army to so great an extent in time of profound peace. What

colorable reason could be assigned, in a country so situated, for

such vast augmentations of the military force? It is impossible

that the people could be long deceived; and the destruction of the

project, and of the projectors, would quickly follow the discovery.

It has been said that the provision which limits the

appropriation of money for the support of an army to the period of

two years would be unavailing, because the Executive, when once

possessed of a force large enough to awe the people into submission,

would find resources in that very force sufficient to enable him to

dispense with supplies from the acts of the legislature. But the

question again recurs, upon what pretense could he be put in

possession of a force of that magnitude in time of peace? If we

suppose it to have been created in consequence of some domestic

insurrection or foreign war, then it becomes a case not within the

principles of the objection; for this is levelled against the power

of keeping up troops in time of peace. Few persons will be so

visionary as seriously to contend that military forces ought not to

be raised to quell a rebellion or resist an invasion; and if the

defense of the community under such circumstances should make it

necessary to have an army so numerous as to hazard its liberty, this

is one of those calamaties for which there is neither preventative

nor cure. It cannot be provided against by any possible form of

government; it might even result from a simple league offensive and

defensive, if it should ever be necessary for the confederates or

allies to form an army for common defense.

But it is an evil infinitely less likely to attend us in a

united than in a disunited state; nay, it may be safely asserted

that it is an evil altogether unlikely to attend us in the latter

situation. It is not easy to conceive a possibility that dangers so

formidable can assail the whole Union, as to demand a force

considerable enough to place our liberties in the least jeopardy,

especially if we take into our view the aid to be derived from the

militia, which ought always to be counted upon as a valuable and

powerful auxiliary. But in a state of disunion (as has been fully

shown in another place), the contrary of this supposition would

become not only probable, but almost unavoidable.

PUBLIUS.

 

FEDERALIST No. 27

The Same Subject Continued

(The Idea of Restraining the Legislative Authority in Regard to

the Common Defense Considered)

From the New York Packet.

Tuesday, December 25, 1787.

HAMILTON

To the People of the State of New York:

IT HAS been urged, in different shapes, that a Constitution of

the kind proposed by the convention cannot operate without the aid

of a military force to execute its laws. This, however, like most

other things that have been alleged on that side, rests on mere

general assertion, unsupported by any precise or intelligible

designation of the reasons upon which it is founded. As far as I

have been able to divine the latent meaning of the objectors, it

seems to originate in a presupposition that the people will be

disinclined to the exercise of federal authority in any matter of an

internal nature. Waiving any exception that might be taken to the

inaccuracy or inexplicitness of the distinction between internal and

external, let us inquire what ground there is to presuppose that

disinclination in the people. Unless we presume at the same time

that the powers of the general government will be worse administered

than those of the State government, there seems to be no room for

the presumption of ill-will, disaffection, or opposition in the

people. I believe it may be laid down as a general rule that their

confidence in and obedience to a government will commonly be

proportioned to the goodness or badness of its administration. It

must be admitted that there are exceptions to this rule; but these

exceptions depend so entirely on accidental causes, that they cannot

be considered as having any relation to the intrinsic merits or

demerits of a constitution. These can only be judged of by general

principles and maxims.

Various reasons have been suggested, in the course of these

papers, to induce a probability that the general government will be

better administered than the particular governments; the principal

of which reasons are that the extension of the spheres of election

will present a greater option, or latitude of choice, to the people;

that through the medium of the State legislatures which are select

bodies of men, and which are to appoint the members of the national

Senate there is reason to expect that this branch will generally be

composed with peculiar care and judgment; that these circumstances

promise greater knowledge and more extensive information in the

national councils, and that they will be less apt to be tainted by

the spirit of faction, and more out of the reach of those occasional

ill-humors, or temporary prejudices and propensities, which, in

smaller societies, frequently contaminate the public councils, beget

injustice and oppression of a part of the community, and engender

schemes which, though they gratify a momentary inclination or

desire, terminate in general distress, dissatisfaction, and disgust.

Several additional reasons of considerable force, to fortify that

probability, will occur when we come to survey, with a more critical

eye, the interior structure of the edifice which we are invited to

erect. It will be sufficient here to remark, that until

satisfactory reasons can be assigned to justify an opinion, that the

federal government is likely to be administered in such a manner as

to render it odious or contemptible to the people, there can be no

reasonable foundation for the supposition that the laws of the Union

will meet with any greater obstruction from them, or will stand in

need of any other methods to enforce their execution, than the laws

of the particular members.

The hope of impunity is a strong incitement to sedition; the

dread of punishment, a proportionably strong discouragement to it.

Will not the government of the Union, which, if possessed of a due

degree of power, can call to its aid the collective resources of the

whole Confederacy, be more likely to repress the FORMER sentiment

and to inspire the LATTER, than that of a single State, which can

only command the resources within itself? A turbulent faction in a

State may easily suppose itself able to contend with the friends to

the government in that State; but it can hardly be so infatuated as

to imagine itself a match for the combined efforts of the Union. If

this reflection be just, there is less danger of resistance from

irregular combinations of individuals to the authority of the

Confederacy than to that of a single member.

I will, in this place, hazard an observation, which will not be

the less just because to some it may appear new; which is, that the

more the operations of the national authority are intermingled in

the ordinary exercise of government, the more the citizens are

accustomed to meet with it in the common occurrences of their

political life, the more it is familiarized to their sight and to

their feelings, the further it enters into those objects which touch

the most sensible chords and put in motion the most active springs

of the human heart, the greater will be the probability that it will

conciliate the respect and attachment of the community. Man is very

much a creature of habit. A thing that rarely strikes his senses

will generally have but little influence upon his mind. A

government continually at a distance and out of sight can hardly be

expected to interest the sensations of the people. The inference

is, that the authority of the Union, and the affections of the

citizens towards it, will be strengthened, rather than weakened, by

its extension to what are called matters of internal concern; and

will have less occasion to recur to force, in proportion to the

familiarity and comprehensiveness of its agency. The more it

circulates through those channls and currents in which the passions

of mankind naturally flow, the less will it require the aid of the

violent and perilous expedients of compulsion.

One thing, at all events, must be evident, that a government

like the one proposed would bid much fairer to avoid the necessity

of using force, than that species of league contend for by most of

its opponents; the authority of which should only operate upon the

States in their political or collective capacities. It has been

shown that in such a Confederacy there can be no sanction for the

laws but force; that frequent delinquencies in the members are the

natural offspring of the very frame of the government; and that as

often as these happen, they can only be redressed, if at all, by war

and violence.

The plan reported by the convention, by extending the authority

of the federal head to the individual citizens of the several

States, will enable the government to employ the ordinary magistracy

of each, in the execution of its laws. It is easy to perceive that

this will tend to destroy, in the common apprehension, all

distinction between the sources from which they might proceed; and

will give the federal government the same advantage for securing a

due obedience to its authority which is enjoyed by the government of

each State, in addition to the influence on public opinion which

will result from the important consideration of its having power to

call to its assistance and support the resources of the whole Union.

It merits particular attention in this place, that the laws of the

Confederacy, as to the ENUMERATED and LEGITIMATE objects of its

jurisdiction, will become the SUPREME LAW of the land; to the

observance of which all officers, legislative, executive, and

judicial, in each State, will be bound by the sanctity of an oath.

Thus the legislatures, courts, and magistrates, of the respective

members, will be incorporated into the operations of the national

government AS FAR AS ITS JUST AND CONSTITUTIONAL AUTHORITY EXTENDS;

and will be rendered auxiliary to the enforcement of its laws. [1%]

Any man who will pursue, by his own reflections, the consequences

of this situation, will perceive that there is good ground to

calculate upon a regular and peaceable execution of the laws of the

Union, if its powers are administered with a common share of

prudence. If we will arbitrarily suppose the contrary, we may

deduce any inferences we please from the supposition; for it is

certainly possible, by an injudicious exercise of the authorities of

the best government that ever was, or ever can be instituted, to

provoke and precipitate the people into the wildest excesses. But

though the adversaries of the proposed Constitution should presume

that the national rulers would be insensible to the motives of

public good, or to the obligations of duty, I would still ask them

how the interests of ambition, or the views of encroachment, can be

promoted by such a conduct?

PUBLIUS.

FNA1-@1 The sophistry which has been employed to show that this will

tend to the destruction of the State governments, will, in its will,

in its proper place, be fully detected.

 

FEDERALIST No. 28

The Same Subject Continued

(The Idea of Restraining the Legislative Authority in Regard to

the Common Defense Considered)

For the Independent Journal.

HAMILTON

To the People of the State of New York:

THAT there may happen cases in which the national government may

be necessitated to resort to force, cannot be denied. Our own

experience has corroborated the lessons taught by the examples of

other nations; that emergencies of this sort will sometimes arise

in all societies, however constituted; that seditions and

insurrections are, unhappily, maladies as inseparable from the body

politic as tumors and eruptions from the natural body; that the

idea of governing at all times by the simple force of law (which we

have been told is the only admissible principle of republican

government), has no place but in the reveries of those political

doctors whose sagacity disdains the admonitions of experimental

instruction.

Should such emergencies at any time happen under the national

government, there could be no remedy but force. The means to be

employed must be proportioned to the extent of the mischief. If it

should be a slight commotion in a small part of a State, the militia

of the residue would be adequate to its suppression; and the

national presumption is that they would be ready to do their duty.

An insurrection, whatever may be its immediate cause, eventually

endangers all government. Regard to the public peace, if not to the

rights of the Union, would engage the citizens to whom the contagion

had not communicated itself to oppose the insurgents; and if the

general government should be found in practice conducive to the

prosperity and felicity of the people, it were irrational to believe

that they would be disinclined to its support.

If, on the contrary, the insurrection should pervade a whole

State, or a principal part of it, the employment of a different kind

of force might become unavoidable. It appears that Massachusetts

found it necessary to raise troops for repressing the disorders

within that State; that Pennsylvania, from the mere apprehension of

commotions among a part of her citizens, has thought proper to have

recourse to the same measure. Suppose the State of New York had

been inclined to re-establish her lost jurisdiction over the

inhabitants of Vermont, could she have hoped for success in such an

enterprise from the efforts of the militia alone? Would she not

have been compelled to raise and to maintain a more regular force

for the execution of her design? If it must then be admitted that

the necessity of recurring to a force different from the militia, in

cases of this extraordinary nature, is applicable to the State

governments themselves, why should the possibility, that the

national government might be under a like necessity, in similar

extremities, be made an objection to its existence? Is it not

surprising that men who declare an attachment to the Union in the

abstract, should urge as an objection to the proposed Constitution

what applies with tenfold weight to the plan for which they contend;

and what, as far as it has any foundation in truth, is an

inevitable consequence of civil society upon an enlarged scale? Who

would not prefer that possibility to the unceasing agitations and

frequent revolutions which are the continual scourges of petty

republics?

Let us pursue this examination in another light. Suppose, in

lieu of one general system, two, or three, or even four

Confederacies were to be formed, would not the same difficulty

oppose itself to the operations of either of these Confederacies?

Would not each of them be exposed to the same casualties; and when

these happened, be obliged to have recourse to the same expedients

for upholding its authority which are objected to in a government

for all the States? Would the militia, in this supposition, be more

ready or more able to support the federal authority than in the case

of a general union? All candid and intelligent men must, upon due

consideration, acknowledge that the principle of the objection is

equally applicable to either of the two cases; and that whether we

have one government for all the States, or different governments for

different parcels of them, or even if there should be an entire

separation of the States, there might sometimes be a necessity to

make use of a force constituted differently from the militia, to

preserve the peace of the community and to maintain the just

authority of the laws against those violent invasions of them which

amount to insurrections and rebellions.

Independent of all other reasonings upon the subject, it is a

full answer to those who require a more peremptory provision against

military establishments in time of peace, to say that the whole

power of the proposed government is to be in the hands of the

representatives of the people. This is the essential, and, after

all, only efficacious security for the rights and privileges of the

people, which is attainable in civil society. [1]

If the representatives of the people betray their constituents,

there is then no resource left but in the exertion of that original

right of self-defense which is paramount to all positive forms of

government, and which against the usurpations of the national

rulers, may be exerted with infinitely better prospect of success

than against those of the rulers of an individual state. In a

single state, if the persons intrusted with supreme power become

usurpers, the different parcels, subdivisions, or districts of which

it consists, having no distinct government in each, can take no

regular measures for defense. The citizens must rush tumultuously

to arms, without concert, without system, without resource; except

in their courage and despair. The usurpers, clothed with the forms

of legal authority, can too often crush the opposition in embryo.

The smaller the extent of the territory, the more difficult will it

be for the people to form a regular or systematic plan of

opposition, and the more easy will it be to defeat their early

efforts. Intelligence can be more speedily obtained of their

preparations and movements, and the military force in the possession

of the usurpers can be more rapidly directed against the part where

the opposition has begun. In this situation there must be a

peculiar coincidence of circumstances to insure success to the

popular resistance.

The obstacles to usurpation and the facilities of resistance

increase with the increased extent of the state, provided the

citizens understand their rights and are disposed to defend them.

The natural strength of the people in a large community, in

proportion to the artificial strength of the government, is greater

than in a small, and of course more competent to a struggle with the

attempts of the government to establish a tyranny. But in a

confederacy the people, without exaggeration, may be said to be

entirely the masters of their own fate. Power being almost always

the rival of power, the general government will at all times stand

ready to check the usurpations of the state governments, and these

will have the same disposition towards the general government. The

people, by throwing themselves into either scale, will infallibly

make it preponderate. If their rights are invaded by either, they

can make use of the other as the instrument of redress. How wise

will it be in them by cherishing the union to preserve to themselves

an advantage which can never be too highly prized!

It may safely be received as an axiom in our political system,

that the State governments will, in all possible contingencies,

afford complete security against invasions of the public liberty by

the national authority. Projects of usurpation cannot be masked

under pretenses so likely to escape the penetration of select bodies

of men, as of the people at large. The legislatures will have

better means of information. They can discover the danger at a

distance; and possessing all the organs of civil power, and the

confidence of the people, they can at once adopt a regular plan of

opposition, in which they can combine all the resources of the

community. They can readily communicate with each other in the

different States, and unite their common forces for the protection

of their common liberty.

The great extent of the country is a further security. We have

already experienced its utility against the attacks of a foreign

power. And it would have precisely the same effect against the

enterprises of ambitious rulers in the national councils. If the

federal army should be able to quell the resistance of one State,

the distant States would have it in their power to make head with

fresh forces. The advantages obtained in one place must be

abandoned to subdue the opposition in others; and the moment the

part which had been reduced to submission was left to itself, its

efforts would be renewed, and its resistance revive.

We should recollect that the extent of the military force must,

at all events, be regulated by the resources of the country. For a

long time to come, it will not be possible to maintain a large army;

and as the means of doing this increase, the population and natural

strength of the community will proportionably increase. When will

the time arrive that the federal government can raise and maintain

an army capable of erecting a despotism over the great body of the

people of an immense empire, who are in a situation, through the

medium of their State governments, to take measures for their own

defense, with all the celerity, regularity, and system of

independent nations? The apprehension may be considered as a

disease, for which there can be found no cure in the resources of

argument and reasoning.

PUBLIUS.

FNA1-@1 Its full efficacy will be examined hereafter.

 

FEDERALIST No. 29

Concerning the Militia

From the Daily Advertiser.

Thursday, January 10, 1788

HAMILTON

To the People of the State of New York:

THE power of regulating the militia, and of commanding its

services in times of insurrection and invasion are natural incidents

to the duties of superintending the common defense, and of watching

over the internal peace of the Confederacy.

It requires no skill in the science of war to discern that

uniformity in the organization and discipline of the militia would

be attended with the most beneficial effects, whenever they were

called into service for the public defense. It would enable them to

discharge the duties of the camp and of the field with mutual

intelligence and concert an advantage of peculiar moment in the

operations of an army; and it would fit them much sooner to acquire

the degree of proficiency in military functions which would be

essential to their usefulness. This desirable uniformity can only

be accomplished by confiding the regulation of the militia to the

direction of the national authority. It is, therefore, with the

most evident propriety, that the plan of the convention proposes to

empower the Union ``to provide for organizing, arming, and

disciplining the militia, and for governing such part of them as may

be employed in the service of the United States, RESERVING TO THE

STATES RESPECTIVELY THE APPOINTMENT OF THE OFFICERS, AND THE

AUTHORITY OF TRAINING THE MILITIA ACCORDING TO THE DISCIPLINE

PRESCRIBED BY CONGRESS.''

Of the different grounds which have been taken in opposition to

the plan of the convention, there is none that was so little to have

been expected, or is so untenable in itself, as the one from which

this particular provision has been attacked. If a well-regulated

militia be the most natural defense of a free country, it ought

certainly to be under the regulation and at the disposal of that

body which is constituted the guardian of the national security. If

standing armies are dangerous to liberty, an efficacious power over

the militia, in the body to whose care the protection of the State

is committed, ought, as far as possible, to take away the inducement

and the pretext to such unfriendly institutions. If the federal

government can command the aid of the militia in those emergencies

which call for the military arm in support of the civil magistrate,

it can the better dispense with the employment of a different kind

of force. If it cannot avail itself of the former, it will be

obliged to recur to the latter. To render an army unnecessary, will

be a more certain method of preventing its existence than a thousand

prohibitions upon paper.

In order to cast an odium upon the power of calling forth the

militia to execute the laws of the Union, it has been remarked that

there is nowhere any provision in the proposed Constitution for

calling out the POSSE COMITATUS, to assist the magistrate in the

execution of his duty, whence it has been inferred, that military

force was intended to be his only auxiliary. There is a striking

incoherence in the objections which have appeared, and sometimes

even from the same quarter, not much calculated to inspire a very

favorable opinion of the sincerity or fair dealing of their authors.

The same persons who tell us in one breath, that the powers of the

federal government will be despotic and unlimited, inform us in the

next, that it has not authority sufficient even to call out the

POSSE COMITATUS. The latter, fortunately, is as much short of the

truth as the former exceeds it. It would be as absurd to doubt,

that a right to pass all laws NECESSARY AND PROPER to execute its

declared powers, would include that of requiring the assistance of

the citizens to the officers who may be intrusted with the execution

of those laws, as it would be to believe, that a right to enact laws

necessary and proper for the imposition and collection of taxes

would involve that of varying the rules of descent and of the

alienation of landed property, or of abolishing the trial by jury in

cases relating to it. It being therefore evident that the

supposition of a want of power to require the aid of the POSSE

COMITATUS is entirely destitute of color, it will follow, that the

conclusion which has been drawn from it, in its application to the

authority of the federal government over the militia, is as uncandid

as it is illogical. What reason could there be to infer, that force

was intended to be the sole instrument of authority, merely because

there is a power to make use of it when necessary? What shall we

think of the motives which could induce men of sense to reason in

this manner? How shall we prevent a conflict between charity and

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, composed of the young and ardent, who may be

rendered subservient to the views of arbitrary power. What plan for

the regulation of the militia may be pursued by the national

government, is impossible to be foreseen. But so far from viewing

the matter in the same light with those who object to select corps

as dangerous, were the Constitution ratified, and were I to deliver

my sentiments to a member of the federal legislature from this State

on the subject of a militia establishment, I should hold to him, in

substance, the following discourse:

``The project of disciplining all the militia of the United

States is as futile as it would be injurious, if it were capable of

being carried into execution. A tolerable expertness in military

movements is a business that requires time and practice. It is not

a day, or even a week, that will suffice for the attainment of it.

To oblige the great body of the yeomanry, and of the other classes

of the citizens, to be under arms for the purpose of going through

military exercises and evolutions, as often as might be necessary to

acquire the degree of perfection which would entitle them to the

character of a well-regulated militia, would be a real grievance to

the people, and a serious public inconvenience and loss. It would

form an annual deduction from the productive labor of the country,

to an amount which, calculating upon the present numbers of the

people, would not fall far short of the whole expense of the civil

establishments of all the States. To attempt a thing which would

abridge the mass of labor and industry to so considerable an extent,

would be unwise: and the experiment, if made, could not succeed,

because it would not long be endured. Little more can reasonably be

aimed at, with respect to the people at large, than to have them

properly armed and equipped; and in order to see that this be not

neglected, it will be necessary to assemble them once or twice in

the course of a year.

``But though the scheme of disciplining the whole nation must be

abandoned as mischievous or impracticable; yet it is a matter of

the utmost importance that a well-digested plan should, as soon as

possible, be adopted for the proper establishment of the militia.

The attention of the government ought particularly to be directed

to the formation of a select corps of moderate extent, upon such

principles as will really fit them for service in case of need. By

thus circumscribing the plan, it will be possible to have an

excellent body of well-trained militia, ready to take the field

whenever the defense of the State shall require it. This will not

only lessen the call for military establishments, but if

circumstances should at any time oblige the government to form an

army of any magnitude that army can never be formidable to the

liberties of the people while there is a large body of citizens,

little, if at all, inferior to them in discipline and the use of

arms, who stand ready to defend their own rights and those of their

fellow-citizens. This appears to me the only substitute that can be

devised for a standing army, and the best possible security against

it, if it should exist.''

Thus differently from the adversaries of the proposed

Constitution should I reason on the same subject, deducing arguments

of safety from the very sources which they represent as fraught with

danger and perdition. But how the national legislature may reason

on the point, is a thing which neither they nor I can foresee.

There is something so far-fetched and so extravagant in the idea

of danger to liberty from the militia, that one is at a loss whether

to treat it with gravity or with raillery; whether to consider it

as a mere trial of skill, like the paradoxes of rhetoricians; as a

disingenuous artifice to instil prejudices at any price; or as the

serious offspring of political fanaticism. Where in the name of

common-sense, are our fears to end if we may not trust our sons, our

brothers, our neighbors, our fellow-citizens? What shadow of danger

can there be from men who are daily mingling with the rest of their

countrymen and who participate with them in the same feelings,

sentiments, habits and interests? What reasonable cause of

apprehension can be inferred from a power in the Union to prescribe

regulations for the militia, and to command its services when

necessary, while the particular States are to have the SOLE AND

EXCLUSIVE APPOINTMENT OF THE OFFICERS? If it were possible

seriously to indulge a jealousy of the militia upon any conceivable

establishment under the federal government, the circumstance of the

officers being in the appointment of the States ought at once to

extinguish it. There can be no doubt that this circumstance will

always secure to them a preponderating influence over the militia.

In reading many of the publications against the Constitution, a

man is apt to imagine that he is perusing some ill-written tale or

romance, which instead of natural and agreeable images, exhibits to

the mind nothing but frightful and distorted shapes ``Gorgons, hydras,

and chimeras dire''; discoloring and disfiguring whatever it represents,

and transforming everything it touches into a monster.

A sample of this is to be observed in the exaggerated and

improbable suggestions which have taken place respecting the power

of calling for the services of the militia. That of New Hampshire

is to be marched to Georgia, of Georgia to New Hampshire, of New

York to Kentucky, and of Kentucky to Lake Champlain. Nay, the debts

due to the French and Dutch are to be paid in militiamen instead of

louis d'ors and ducats. At one moment there is to be a large army

to lay prostrate the liberties of the people; at another moment the

militia of Virginia are to be dragged from their homes five or six

hundred miles, to tame the republican contumacy of Massachusetts;

and that of Massachusetts is to be transported an equal distance to

subdue the refractory haughtiness of the aristocratic Virginians.

Do the persons who rave at this rate imagine that their art or

their eloquence can impose any conceits or absurdities upon the

people of America for infallible truths?

If there should be an army to be made use of as the engine of

despotism, what need of the militia? If there should be no army,

whither would the militia, irritated by being called upon to

undertake a distant and hopeless expedition, for the purpose of

riveting the chains of slavery upon a part of their countrymen,

direct their course, but to the seat of the tyrants, who had

meditated so foolish as well as so wicked a project, to crush them

in their imagined intrenchments of power, and to make them an

example of the just vengeance of an abused and incensed people? Is

this the way in which usurpers stride to dominion over a numerous

and enlightened nation? Do they begin by exciting the detestation

of the very instruments of their intended usurpations? Do they

usually commence their career by wanton and disgustful acts of

power, calculated to answer no end, but to draw upon themselves

universal hatred and execration? Are suppositions of this sort the

sober admonitions of discerning patriots to a discerning people? Or

are they the inflammatory ravings of incendiaries or distempered

enthusiasts? If we were even to suppose the national rulers

actuated by the most ungovernable ambition, it is impossible to

believe that they would employ such preposterous means to accomplish

their designs.

In times of insurrection, or invasion, it would be natural and

proper that the militia of a neighboring State should be marched

into another, to resist a common enemy, or to guard the republic

against the violence of faction or sedition. This was frequently

the case, in respect to the first object, in the course of the late

war; and this mutual succor is, indeed, a principal end of our

political association. If the power of affording it be placed under

the direction of the Union, there will be no danger of a supine and

listless inattention to the dangers of a neighbor, till its near

approach had superadded the incitements of selfpreservation to the

too feeble impulses of duty and sympathy.

PUBLIUS.

 

FEDERALIST No. 30

Concerning the General Power of Taxation

From the New York Packet.

Friday, December 28, 1787.

HAMILTON

To the People of the State of New York:

IT HAS been already observed that the federal government ought

to possess the power of providing for the support of the national

forces; in which proposition was intended to be included the

expense of raising troops, of building and equipping fleets, and all

other expenses in any wise connected with military arrangements and

operations. But these are not the only objects to which the

jurisdiction of the Union, in respect to revenue, must necessarily

be empowered to extend. It must embrace a provision for the support

of the national civil list; for the payment of the national debts

contracted, or that may be contracted; and, in general, for all

those matters which will call for disbursements out of the national

treasury. The conclusion is, that there must be interwoven, in the

frame of the government, a general power of taxation, in one shape

or another.

Money is, with propriety, considered as the vital principle of

the body politic; as that which sustains its life and motion, and

enables it to perform its most essential functions. A complete

power, therefore, to procure a regular and adequate supply of it, as

far as the resources of the community will permit, may be regarded

as an indispensable ingredient in every constitution. From a

deficiency in this particular, one of two evils must ensue; either

the people must be subjected to continual plunder, as a substitute

for a more eligible mode of supplying the public wants, or the

government must sink into a fatal atrophy, and, in a short course of

time, perish.

In the Ottoman or Turkish empire, the sovereign, though in other

respects absolute master of the lives and fortunes of his subjects,

has no right to impose a new tax. The consequence is that he

permits the bashaws or governors of provinces to pillage the people

without mercy; and, in turn, squeezes out of them the sums of which

he stands in need, to satisfy his own exigencies and those of the

state. In America, from a like cause, the government of the Union

has gradually dwindled into a state of decay, approaching nearly to

annihilation. Who can doubt, that the happiness of the people in

both countries would be promoted by competent authorities in the

proper hands, to provide the revenues which the necessities of the

public might require?

The present Confederation, feeble as it is intended to repose in

the United States, an unlimited power of providing for the pecuniary

wants of the Union. But proceeding upon an erroneous principle, it

has been done in such a manner as entirely to have frustrated the

intention. Congress, by the articles which compose that compact (as

has already been stated), are authorized to ascertain and call for

any sums of money necessary, in their judgment, to the service of

the United States; and their requisitions, if conformable to the

rule of apportionment, are in every constitutional sense obligatory

upon the States. These have no right to question the propriety of

the demand; no discretion beyond that of devising the ways and

means of furnishing the sums demanded. But though this be strictly

and truly the case; though the assumption of such a right would be

an infringement of the articles of Union; though it may seldom or

never have been avowedly claimed, yet in practice it has been

constantly exercised, and would continue to be so, as long as the

revenues of the Confederacy should remain dependent on the

intermediate agency of its members. What the consequences of this

system have been, is within the knowledge of every man the least

conversant in our public affairs, and has been amply unfolded in

different parts of these inquiries. It is this which has chiefly

contributed to reduce us to a situation, which affords ample cause

both of mortification to ourselves, and of triumph to our enemies.

What remedy can there be for this situation, but in a change of

the system which has produced it in a change of the fallacious and

delusive system of quotas and requisitions? What substitute can

there be imagined for this ignis fatuus in finance, but that of

permitting the national government to raise its own revenues by the

ordinary methods of taxation authorized in every well-ordered

constitution of civil government? Ingenious men may declaim with

plausibility on any subject; but no human ingenuity can point out

any other expedient to rescue us from the inconveniences and

embarrassments naturally resulting from defective supplies of the

public treasury.

The more intelligent adversaries of the new Constitution admit

the force of this reasoning; but they qualify their admission by a

distinction between what they call INTERNAL and EXTERNAL taxation.

The former they would reserve to the State governments; the

latter, which they explain into commercial imposts, or rather duties

on imported articles, they declare themselves willing to concede to

the federal head. This distinction, however, would violate the

maxim of good sense and sound policy, which dictates that every

POWER ought to be in proportion to its OBJECT; and would still

leave the general government in a kind of tutelage to the State

governments, inconsistent with every idea of vigor or efficiency.

Who can pretend that commercial imposts are, or would be, alone

equal to the present and future exigencies of the Union? Taking

into the account the existing debt, foreign and domestic, upon any

plan of extinguishment which a man moderately impressed with the

importance of public justice and public credit could approve, in

addition to the establishments which all parties will acknowledge to

be necessary, we could not reasonably flatter ourselves, that this

resource alone, upon the most improved scale, would even suffice for

its present necessities. Its future necessities admit not of

calculation or limitation; and upon the principle, more than once

adverted to, the power of making provision for them as they arise

ought to be equally unconfined. I believe it may be regarded as a

position warranted by the history of mankind, that, IN THE USUAL

PROGRESS OF THINGS, THE NECESSITIES OF A NATION, IN EVERY STAGE OF

ITS EXISTENCE, WILL BE FOUND AT LEAST EQUAL TO ITS RESOURCES.

To say that deficiencies may be provided for by requisitions

upon the States, is on the one hand to acknowledge that this system

cannot be depended upon, and on the other hand to depend upon it for

every thing beyond a certain limit. Those who have carefully

attended to its vices and deformities as they have been exhibited by

experience or delineated in the course of these papers, must feel

invincible repugnancy to trusting the national interests in any

degree to its operation. Its inevitable tendency, whenever it is

brought into activity, must be to enfeeble the Union, and sow the

seeds of discord and contention between the federal head and its

members, and between the members themselves. Can it be expected

that the deficiencies would be better supplied in this mode than the

total wants of the Union have heretofore been supplied in the same

mode? It ought to be recollected that if less will be required from

the States, they will have proportionably less means to answer the

demand. If the opinions of those who contend for the distinction

which has been mentioned were to be received as evidence of truth,

one would be led to conclude that there was some known point in the

economy of national affairs at which it would be safe to stop and to

say: Thus far the ends of public happiness will be promoted by

supplying the wants of government, and all beyond this is unworthy

of our care or anxiety. How is it possible that a government half

supplied and always necessitous, can fulfill the purposes of its

institution, can provide for the security, advance the prosperity,

or support the reputation of the commonwealth? How can it ever

possess either energy or stability, dignity or credit, confidence at

home or respectability abroad? How can its administration be any

thing else than a succession of expedients temporizing, impotent,

disgraceful? How will it be able to avoid a frequent sacrifice of

its engagements to immediate necessity? How can it undertake or

execute any liberal or enlarged plans of public good?

Let us attend to what would be the effects of this situation in

the very first war in which we should happen to be engaged. We will

presume, for argument's sake, that the revenue arising from the

impost duties answers the purposes of a provision for the public

debt and of a peace establishment for the Union. Thus

circumstanced, a war breaks out. What would be the probable conduct

of the government in such an emergency? Taught by experience that

proper dependence could not be placed on the success of

requisitions, unable by its own authority to lay hold of fresh

resources, and urged by considerations of national danger, would it

not be driven to the expedient of diverting the funds already

appropriated from their proper objects to the defense of the State?

It is not easy to see how a step of this kind could be avoided;

and if it should be taken, it is evident that it would prove the

destruction of public credit at the very moment that it was becoming

essential to the public safety. To imagine that at such a crisis

credit might be dispensed with, would be the extreme of infatuation.

In the modern system of war, nations the most wealthy are obliged

to have recourse to large loans. A country so little opulent as

ours must feel this necessity in a much stronger degree. But who

would lend to a government that prefaced its overtures for borrowing

by an act which demonstrated that no reliance could be placed on the

steadiness of its measures for paying? The loans it might be able

to procure would be as limited in their extent as burdensome in

their conditions. They would be made upon the same principles that

usurers commonly lend to bankrupt and fraudulent debtors, with a

sparing hand and at enormous premiums.

It may perhaps be imagined that, from the scantiness of the

resources of the country, the necessity of diverting the established

funds in the case supposed would exist, though the national

government should possess an unrestrained power of taxation. But

two considerations will serve to quiet all apprehension on this

head: one is, that we are sure the resources of the community, in

their full extent, will be brought into activity for the benefit of

the Union; the other is, that whatever deficiences there may be,

can without difficulty be supplied by loans.

The power of creating new funds upon new objects of taxation, by

its own authority, would enable the national government to borrow as

far as its necessities might require. Foreigners, as well as the

citizens of America, could then reasonably repose confidence in its

engagements; but to depend upon a government that must itself

depend upon thirteen other governments for the means of fulfilling

its contracts, when once its situation is clearly understood, would

require a degree of credulity not often to be met with in the

pecuniary transactions of mankind, and little reconcilable with the

usual sharp-sightedness of avarice.

Reflections of this kind may have trifling weight with men who

hope to see realized in America the halcyon scenes of the poetic or

fabulous age; but to those who believe we are likely to experience

a common portion of the vicissitudes and calamities which have

fallen to the lot of other nations, they must appear entitled to

serious attention. Such men must behold the actual situation of

their country with painful solicitude, and deprecate the evils which

ambition or revenge might, with too much facility, inflict upon it.

PUBLIUS.

 

FEDERALIST No. 31

The Same Subject Continued

(Concerning the General Power of Taxation)

From the New York Packet.

Tuesday, January 1, 1788.

HAMILTON

To the People of the State of New York:

IN DISQUISITIONS of every kind, there are certain primary

truths, or first principles, upon which all subsequent reasonings

must depend. These contain an internal evidence which, antecedent

to all reflection or combination, commands the assent of the mind.

Where it produces not this effect, it must proceed either from some

defect or disorder in the organs of perception, or from the

influence of some strong interest, or passion, or prejudice. Of

this nature are the maxims in geometry, that ``the whole is greater

than its part; things equal to the same are equal to one another;

two straight lines cannot enclose a space; and all right angles

are equal to each other.'' Of the same nature are these other

maxims in ethics and politics, that there cannot be an effect

without a cause; that the means ought to be proportioned to the

end; that every power ought to be commensurate with its object;

that there ought to be no limitation of a power destined to effect

a purpose which is itself incapable of limitation. And there are

other truths in the two latter sciences which, if they cannot

pretend to rank in the class of axioms, are yet such direct

inferences from them, and so obvious in themselves, and so agreeable

to the natural and unsophisticated dictates of common-sense, that

they challenge the assent of a sound and unbiased mind, with a

degree of force and conviction almost equally irresistible.

The objects of geometrical inquiry are so entirely abstracted

from those pursuits which stir up and put in motion the unruly

passions of the human heart, that mankind, without difficulty, adopt

not only the more simple theorems of the science, but even those

abstruse paradoxes which, however they may appear susceptible of

demonstration, are at variance with the natural conceptions which

the mind, without the aid of philosophy, would be led to entertain

upon the subject. The INFINITE DIVISIBILITY of matter, or, in other

words, the INFINITE divisibility of a FINITE thing, extending even

to the minutest atom, is a point agreed among geometricians, though

not less incomprehensible to common-sense than any of those

mysteries in religion, against which the batteries of infidelity

have been so industriously leveled.

But in the sciences of morals and politics, men are found far

less tractable. To a certain degree, it is right and useful that

this should be the case. Caution and investigation are a necessary

armor against error and imposition. But this untractableness may be

carried too far, and may degenerate into obstinacy, perverseness, or

disingenuity. Though it cannot be pretended that the principles of

moral and political knowledge have, in general, the same degree of

certainty with those of the mathematics, yet they have much better

claims in this respect than, to judge from the conduct of men in

particular situations, we should be disposed to allow them. The

obscurity is much oftener in the passions and prejudices of the

reasoner than in the subject. Men, upon too many occasions, do not

give their own understandings fair play; but, yielding to some

untoward bias, they entangle themselves in words and confound

themselves in subtleties.

How else could it happen (if we admit the objectors to be

sincere in their opposition), that positions so clear as those which

manifest the necessity of a general power of taxation in the

government of the Union, should have to encounter any adversaries

among men of discernment? Though these positions have been

elsewhere fully stated, they will perhaps not be improperly

recapitulated in this place, as introductory to an examination of

what may have been offered by way of objection to them. They are in

substance as follows:

A government ought to contain in itself every power requisite to

the full accomplishment of the objects committed to its care, and to

the complete execution of the trusts for which it is responsible,

free from every other control but a regard to the public good and to

the sense of the people.

As the duties of superintending the national defense and of

securing the public peace against foreign or domestic violence

involve a provision for casualties and dangers to which no possible

limits can be assigned, the power of making that provision ought to

know no other bounds than the exigencies of the nation and the

resources of the community.

As revenue is the essential engine by which the means of

answering the national exigencies must be procured, the power of

procuring that article in its full extent must necessarily be

comprehended in that of providing for those exigencies.

As theory and practice conspire to prove that the power of

procuring revenue is unavailing when exercised over the States in

their collective capacities, the federal government must of

necessity be invested with an unqualified power of taxation in the

ordinary modes.

Did not experience evince the contrary, it would be natural to

conclude that the propriety of a general power of taxation in the

national government might safely be permitted to rest on the

evidence of these propositions, unassisted by any additional

arguments or illustrations. But we find, in fact, that the

antagonists of the proposed Constitution, so far from acquiescing in

their justness or truth, seem to make their principal and most

zealous effort against this part of the plan. It may therefore be

satisfactory to analyze the arguments with which they combat it.

Those of them which have been most labored with that view, seem

in substance to amount to this: ``It is not true, because the

exigencies of the Union may not be susceptible of limitation, that

its power of laying taxes ought to be unconfined. Revenue is as

requisite to the purposes of the local administrations as to those

of the Union; and the former are at least of equal importance with

the latter to the happiness of the people. It is, therefore, as

necessary that the State governments should be able to command the

means of supplying their wants, as that the national government

should possess the like faculty in respect to the wants of the Union.

But an indefinite power of taxation in the LATTER might, and

probably would in time, deprive the FORMER of the means of providing

for their own necessities; and would subject them entirely to the

mercy of the national legislature. As the laws of the Union are to

become the supreme law of the land, as it is to have power to pass

all laws that may be NECESSARY for carrying into execution the

authorities with which it is proposed to vest it, the national

government might at any time abolish the taxes imposed for State

objects upon the pretense of an interference with its own. It might

allege a necessity of doing this in order to give efficacy to the

national revenues. And thus all the resources of taxation might by

degrees become the subjects of federal monopoly, to the entire

exclusion and destruction of the State governments.''

This mode of reasoning appears sometimes to turn upon the

supposition of usurpation in the national government; at other

times it seems to be designed only as a deduction from the

constitutional operation of its intended powers. It is only in the

latter light that it can be admitted to have any pretensions to

fairness. The moment we launch into conjectures about the

usurpations of the federal government, we get into an unfathomable

abyss, and fairly put ourselves out of the reach of all reasoning.

Imagination may range at pleasure till it gets bewildered amidst

the labyrinths of an enchanted castle, and knows not on which side

to turn to extricate itself from the perplexities into which it has

so rashly adventured. Whatever may be the limits or modifications

of the powers of the Union, it is easy to imagine an endless train

of possible dangers; and by indulging an excess of jealousy and

timidity, we may bring ourselves to a state of absolute scepticism

and irresolution. I repeat here what I have observed in substance

in another place, that all observations founded upon the danger of

usurpation ought to be referred to the composition and structure of

the government, not to the nature or extent of its powers. The

State governments, by their original constitutions, are invested

with complete sovereignty. In what does our security consist

against usurpation from that quarter? Doubtless in the manner of

their formation, and in a due dependence of those who are to

administer them upon the people. If the proposed construction of

the federal government be found, upon an impartial examination of

it, to be such as to afford, to a proper extent, the same species of

security, all apprehensions on the score of usurpation ought to be

discarded.

It should not be forgotten that a disposition in the State

governments to encroach upon the rights of the Union is quite as

probable as a disposition in the Union to encroach upon the rights

of the State governments. What side would be likely to prevail in

such a conflict, must depend on the means which the contending

parties could employ toward insuring success. As in republics

strength is always on the side of the people, and as there are

weighty reasons to induce a belief that the State governments will

commonly possess most influence over them, the natural conclusion is

that such contests will be most apt to end to the disadvantage of

the Union; and that there is greater probability of encroachments

by the members upon the federal head, than by the federal head upon

the members. But it is evident that all conjectures of this kind

must be extremely vague and fallible: and that it is by far the

safest course to lay them altogether aside, and to confine our

attention wholly to the nature and extent of the powers as they are

delineated in the Constitution. Every thing beyond this must be

left to the prudence and firmness of the people; who, as they will

hold the scales in their own hands, it is to be hoped, will always

take care to preserve the constitutional equilibrium between the

general and the State governments. Upon this ground, which is

evidently the true one, it will not be difficult to obviate the

objections which have been made to an indefinite power of taxation

in the United States.

PUBLIUS.

 

FEDERALIST No. 32

The Same Subject Continued

(Concerning the General Power of Taxation)

From the Daily Advertiser.

Thursday, January 3, 1788.

HAMILTON

To the People of the State of New York:

ALTHOUGH I am of opinion that there would be no real danger of

the consequences which seem to be apprehended to the State

governments from a power in the Union to control them in the levies

of money, because I am persuaded that the sense of the people, the

extreme hazard of provoking the resentments of the State

governments, and a conviction of the utility and necessity of local

administrations for local purposes, would be a complete barrier

against the oppressive use of such a power; yet I am willing here

to allow, in its full extent, the justness of the reasoning which

requires that the individual States should possess an independent

and uncontrollable authority to raise their own revenues for the

supply of their own wants. And making this concession, I affirm

that (with the sole exception of duties on imports and exports) they

would, under the plan of the convention, retain that authority in

the most absolute and unqualified sense; and that an attempt on the

part of the national government to abridge them in the exercise of

it, would be a violent assumption of power, unwarranted by any

article or clause of its Constitution.

An entire consolidation of the States into one complete national

sovereignty would imply an entire subordination of the parts; and

whatever powers might remain in them, would be altogether dependent

on the general will. But as the plan of the convention aims only at

a partial union or consolidation, the State governments would

clearly retain all the rights of sovereignty which they before had,

and which were not, by that act, EXCLUSIVELY delegated to the United

States. This exclusive delegation, or rather this alienation, of

State sovereignty, would only exist in three cases: where the

Constitution in express terms granted an exclusive authority to the

Union; where it granted in one instance an authority to the Union,

and in another prohibited the States from exercising the like

authority; and where it granted an authority to the Union, to which

a similar authority in the States would be absolutely and totally

CONTRADICTORY and REPUGNANT. I use these terms to distinguish this

last case from another which might appear to resemble it, but which

would, in fact, be essentially different; I mean where the exercise

of a concurrent jurisdiction might be productive of occasional

interferences in the POLICY of any branch of administration, but

would not imply any direct contradiction or repugnancy in point of

constitutional authority. These three cases of exclusive

jurisdiction in the federal government may be exemplified by the

following instances: The last clause but one in the eighth section

of the first article provides expressly that Congress shall exercise

``EXCLUSIVE LEGISLATION'' over the district to be appropriated as

the seat of government. This answers to the first case. The first

clause of the same section empowers Congress ``TO LAY AND COLLECT

TAXES, DUTIES, IMPOSTS AND EXCISES''; and the second clause of the

tenth section of the same article declares that, ``NO STATE SHALL,

without the consent of Congress, LAY ANY IMPOSTS OR DUTIES ON

IMPORTS OR EXPORTS, except for the purpose of executing its

inspection laws.'' Hence would result an exclusive power in the

Union to lay duties on imports and exports, with the particular

exception mentioned; but this power is abridged by another clause,

which declares that no tax or duty shall be laid on articles

exported from any State; in consequence of which qualification, it

now only extends to the DUTIES ON IMPORTS. This answers to the

second case. The third will be found in that clause which declares

that Congress shall have power ``to establish an UNIFORM RULE of

naturalization throughout the United States.'' This must

necessarily be exclusive; because if each State had power to

prescribe a DISTINCT RULE, there could not be a UNIFORM RULE.

A case which may perhaps be thought to resemble the latter, but

which is in fact widely different, affects the question immediately

under consideration. I mean the power of imposing taxes on all

articles other than exports and imports. This, I contend, is

manifestly a concurrent and coequal authority in the United States

and in the individual States. There is plainly no expression in the

granting clause which makes that power EXCLUSIVE in the Union.

There is no independent clause or sentence which prohibits the

States from exercising it. So far is this from being the case, that

a plain and conclusive argument to the contrary is to be deduced

from the restraint laid upon the States in relation to duties on

imports and exports. This restriction implies an admission that, if

it were not inserted, the States would possess the power it

excludes; and it implies a further admission, that as to all other

taxes, the authority of the States remains undiminished. In any

other view it would be both unnecessary and dangerous; it would be

unnecessary, because if the grant to the Union of the power of

laying such duties implied the exclusion of the States, or even

their subordination in this particular, there could be no need of

such a restriction; it would be dangerous, because the introduction

of it leads directly to the conclusion which has been mentioned, and

which, if the reasoning of the objectors be just, could not have

been intended; I mean that the States, in all cases to which the

restriction did not apply, would have a concurrent power of taxation

with the Union. The restriction in question amounts to what lawyers

call a NEGATIVE PREGNANT that is, a NEGATION of one thing, and an

AFFIRMANCE of another; a negation of the authority of the States to

impose taxes on imports and exports, and an affirmance of their

authority to impose them on all other articles. It would be mere

sophistry to argue that it was meant to exclude them ABSOLUTELY from

the imposition of taxes of the former kind, and to leave them at

liberty to lay others SUBJECT TO THE CONTROL of the national

legislature. The restraining or prohibitory clause only says, that

they shall not, WITHOUT THE CONSENT OF CONGRESS, lay such duties;

and if we are to understand this in the sense last mentioned, the

Constitution would then be made to introduce a formal provision for

the sake of a very absurd conclusion; which is, that the States,

WITH THE CONSENT of the national legislature, might tax imports and

exports; and that they might tax every other article, UNLESS

CONTROLLED by the same body. If this was the intention, why not

leave it, in the first instance, to what is alleged to be the

natural operation of the original clause, conferring a general power

of taxation upon the Union? It is evident that this could not have

been the intention, and that it will not bear a construction of the

kind.

As to a supposition of repugnancy between the power of taxation

in the States and in the Union, it cannot be supported in that sense

which would be requisite to work an exclusion of the States. It is,

indeed, possible that a tax might be laid on a particular article by

a State which might render it INEXPEDIENT that thus a further tax

should be laid on the same article by the Union; but it would not

imply a constitutional inability to impose a further tax. The

quantity of the imposition, the expediency or inexpediency of an

increase on either side, would be mutually questions of prudence;

but there would be involved no direct contradiction of power. The

particular policy of the national and of the State systems of

finance might now and then not exactly coincide, and might require

reciprocal forbearances. It is not, however a mere possibility of

inconvenience in the exercise of powers, but an immediate

constitutional repugnancy that can by implication alienate and

extinguish a pre-existing right of sovereignty.

The necessity of a concurrent jurisdiction in certain cases

results from the division of the sovereign power; and the rule that

all authorities, of which the States are not explicitly divested in

favor of the Union, remain with them in full vigor, is not a

theoretical consequence of that division, but is clearly admitted by

the whole tenor of the instrument which contains the articles of the

proposed Constitution. We there find that, notwithstanding the

affirmative grants of general authorities, there has been the most

pointed care in those cases where it was deemed improper that the

like authorities should reside in the States, to insert negative

clauses prohibiting the exercise of them by the States. The tenth

section of the first article consists altogether of such provisions.

This circumstance is a clear indication of the sense of the

convention, and furnishes a rule of interpretation out of the body

of the act, which justifies the position I have advanced and refutes

every hypothesis to the contrary.

PUBLIUS.

 

FEDERALIST No. 33

The Same Subject Continued

(Concerning the General Power of Taxation)

From the Daily Advertiser.

January 3, 1788.

HAMILTON

To the People of the State of New York:

THE residue of the argument against the provisions of the

Constitution in respect to taxation is ingrafted upon the following

clause. The last clause of the eighth section of the first article

of the plan under consideration authorizes the national legislature

``to make all laws which shall be NECESSARY and PROPER for carrying

into execution THE POWERS by that Constitution vested in the

government of the United States, or in any department or officer

thereof''; and the second clause of the sixth article declares,

``that the Constitution and the laws of the United States made IN

PURSUANCE THEREOF, and the treaties made by their authority shall be

the SUPREME LAW of the land, any thing in the constitution or laws

of any State to the contrary notwithstanding.''

These two clauses have been the source of much virulent

invective and petulant declamation against the proposed Constitution.

They have been held up to the people in all the exaggerated colors

of misrepresentation as the pernicious engines by which their local

governments were to be destroyed and their liberties exterminated;

as the hideous monster whose devouring jaws would spare neither sex

nor age, nor high nor low, nor sacred nor profane; and yet, strange

as it may appear, after all this clamor, to those who may not have

happened to contemplate them in the same light, it may be affirmed

with perfect confidence that the constitutional operation of the

intended government would be precisely the same, if these clauses

were entirely obliterated, as if they were repeated in every article.

They are only declaratory of a truth which would have resulted by

necessary and unavoidable implication from the very act of

constituting a federal government, and vesting it with certain

specified powers. This is so clear a proposition, that moderation

itself can scarcely listen to the railings which have been so

copiously vented against this part of the plan, without emotions

that disturb its equanimity.

What is a power, but the ability or faculty of doing a thing?

What is the ability to do a thing, but the power of employing the

MEANS necessary to its execution? What is a LEGISLATIVE power, but

a power of making LAWS? What are the MEANS to execute a LEGISLATIVE

power but LAWS? What is the power of laying and collecting taxes,

but a LEGISLATIVE POWER, or a power of MAKING LAWS, to lay and

collect taxes? What are the propermeans of executing such a power,

but NECESSARY and PROPER laws?

This simple train of inquiry furnishes us at once with a test by

which to judge of the true nature of the clause complained of. It

conducts us to this palpable truth, that a power to lay and collect

taxes must be a power to pass all laws NECESSARY and PROPER for the

execution of that power; and what does the unfortunate and

culumniated provision in question do more than declare the same

truth, to wit, that the national legislature, to whom the power of

laying and collecting taxes had been previously given, might, in the

execution of that power, pass all laws NECESSARY and PROPER to carry

it into effect? I have applied these observations thus particularly

to the power of taxation, because it is the immediate subject under

consideration, and because it is the most important of the

authorities proposed to be conferred upon the Union. But the same

process will lead to the same result, in relation to all other

powers declared in the Constitution. And it is EXPRESSLY to execute

these powers that the sweeping clause, as it has been affectedly

called, authorizes the national legislature to pass all NECESSARY

and PROPER laws. If there is any thing exceptionable, it must be

sought for in the specific powers upon which this general

declaration is predicated. The declaration itself, though it may be

chargeable with tautology or redundancy, is at least perfectly

harmless.

But SUSPICION may ask, Why then was it introduced? The answer

is, that it could only have been done for greater caution, and to

guard against all cavilling refinements in those who might hereafter

feel a disposition to curtail and evade the legitimatb authorities

of the Union. The Convention probably foresaw, what it has been a

principal aim of these papers to inculcate, that the danger which

most threatens our political welfare is that the State governments

will finally sap the foundations of the Union; and might therefore

think it necessary, in so cardinal a point, to leave nothing to

construction. Whatever may have been the inducement to it, the

wisdom of the precaution is evident from the cry which has been

raised against it; as that very cry betrays a disposition to

question the great and essential truth which it is manifestly the

object of that provision to declare.

But it may be again asked, Who is to judge of the NECESSITY and

PROPRIETY of the laws to be passed for executing the powers of the

Union? I answer, first, that this question arises as well and as

fully upon the simple grant of those powers as upon the declaratory

clause; and I answer, in the second place, that the national

government, like every other, must judge, in the first instance, of

the proper exercise of its powers, and its constituents in the last.

If the federal government should overpass the just bounds of its

authority and make a tyrannical use of its powers, the people, whose

creature it is, must appeal to the standard they have formed, and

take such measures to redress the injury done to the Constitution as

the exigency may suggest and prudence justify. The propriety of a

law, in a constitutional light, must always be determined by the

nature of the powers upon which it is founded. Suppose, by some

forced constructions of its authority (which, indeed, cannot easily

be imagined), the Federal legislature should attempt to vary the law

of descent in any State, would it not be evident that, in making

such an attempt, it had exceeded its jurisdiction, and infringed

upon that of the State? Suppose, again, that upon the pretense of

an interference with its revenues, it should undertake to abrogate a

landtax imposed by the authority of a State; would it not be

equally evident that this was an invasion of that concurrent

jurisdiction in respect to this species of tax, which its

Constitution plainly supposes to exist in the State governments? If

there ever should be a doubt on this head, the credit of it will be

entirely due to those reasoners who, in the imprudent zeal of their

animosity to the plan of the convention, have labored to envelop it

in a cloud calculated to obscure the plainest and simplest truths.

But it is said that the laws of the Union are to be the SUPREME

LAW of the land. But what inference can be drawn from this, or what

would they amount to, if they were not to be supreme? It is evident

they would amount to nothing. A LAW, by the very meaning of the

term, includes supremacy. It is a rule which those to whom it is

prescribed are bound to observe. This results from every political

association. If individuals enter into a state of society, the laws

of that society must be the supreme regulator of their conduct. If

a number of political societies enter into a larger political

society, the laws which the latter may enact, pursuant to the powers

intrusted to it by its constitution, must necessarily be supreme

over those societies, and the individuals of whom they are composed.

It would otherwise be a mere treaty, dependent on the good faith of

the parties, and not a goverment, which is only another word for

POLITICAL POWER AND SUPREMACY. But it will not follow from this

doctrine that acts of the large society which are NOT PURSUANT to

its constitutional powers, but which are invasions of the residuary

authorities of the smaller societies, will become the supreme law of

the land. These will be merely acts of usurpation, and will deserve

to be treated as such. Hence we perceive that the clause which

declares the supremacy of the laws of the Union, like the one we

have just before considered, only declares a truth, which flows

immediately and necessarily from the institution of a federal

government. It will not, I presume, have escaped observation, that

it EXPRESSLY confines this supremacy to laws made PURSUANT TO THE

CONSTITUTION; which I mention merely as an instance of caution in

the convention; since that limitation would have been to be

understood, though it had not been expressed.

Though a law, therefore, laying a tax for the use of the United

States would be supreme in its nature, and could not legally be

opposed or controlled, yet a law for abrogating or preventing the

collection of a tax laid by the authority of the State, (unless upon

imports and exports), would not be the supreme law of the land, but

a usurpation of power not granted by the Constitution. As far as an

improper accumulation of taxes on the same object might tend to

render the collection difficult or precarious, this would be a

mutual inconvenience, not arising from a superiority or defect of

power on either side, but from an injudicious exercise of power by

one or the other, in a manner equally disadvantageous to both. It

is to be hoped and presumed, however, that mutual interest would

dictate a concert in this respect which would avoid any material

inconvenience. The inference from the whole is, that the individual

States would, under the proposed Constitution, retain an independent

and uncontrollable authority to raise revenue to any extent of which

they may stand in need, by every kind of taxation, except duties on

imports and exports. It will be shown in the next paper that this

CONCURRENT JURISDICTION in the article of taxation was the only

admissible substitute for an entire subordination, in respect to

this branch of power, of the State authority to that of the Union.

PUBLIUS.

 

FEDERALIST No. 34

The Same Subject Continued

(Concerning the General Power of Taxation)

From the New York Packet.

Friday, January 4, 1788.

HAMILTON

To the People of the State of New York:

I FLATTER myself it has been clearly shown in my last number

that the particular States, under the proposed Constitution, would

have COEQUAL authority with the Union in the article of revenue,

except as to duties on imports. As this leaves open to the States

far the greatest part of the resources of the community, there can

be no color for the assertion that they would not possess means as

abundant as could be desired for the supply of their own wants,

independent of all external control. That the field is sufficiently

wide will more fully appear when we come to advert to the

inconsiderable share of the public expenses for which it will fall

to the lot of the State governments to provide.

To argue upon abstract principles that this co-ordinate

authority cannot exist, is to set up supposition and theory against

fact and reality. However proper such reasonings might be to show

that a thing OUGHT NOT TO EXIST, they are wholly to be rejected when

they are made use of to prove that it does not exist contrary to the

evidence of the fact itself. It is well known that in the Roman

republic the legislative authority, in the last resort, resided for

ages in two different political bodies not as branches of the same

legislature, but as distinct and independent legislatures, in each

of which an opposite interest prevailed: in one the patrician; in

the other, the plebian. Many arguments might have been adduced to

prove the unfitness of two such seemingly contradictory authorities,

each having power to ANNUL or REPEAL the acts of the other. But a

man would have been regarded as frantic who should have attempted at

Rome to disprove their existence. It will be readily understood

that I allude to the COMITIA CENTURIATA and the COMITIA TRIBUTA.

The former, in which the people voted by centuries, was so arranged

as to give a superiority to the patrician interest; in the latter,

in which numbers prevailed, the plebian interest had an entire

predominancy. And yet these two legislatures coexisted for ages,

and the Roman republic attained to the utmost height of human

greatness.

In the case particularly under consideration, there is no such

contradiction as appears in the example cited; there is no power on

either side to annul the acts of the other. And in practice there

is little reason to apprehend any inconvenience; because, in a

short course of time, the wants of the States will naturally reduce

themselves within A VERY NARROW COMPASS; and in the interim, the

United States will, in all probability, find it convenient to

abstain wholly from those objects to which the particular States

would be inclined to resort.

To form a more precise judgment of the true merits of this

question, it will be well to advert to the proportion between the

objects that will require a federal provision in respect to revenue,

and those which will require a State provision. We shall discover

that the former are altogether unlimited, and that the latter are

circumscribed within very moderate bounds. In pursuing this

inquiry, we must bear in mind that we are not to confine our view to

the present period, but to look forward to remote futurity.

Constitutions of civil government are not to be framed upon a

calculation of existing exigencies, but upon a combination of these

with the probable exigencies of ages, according to the natural and

tried course of human affairs. Nothing, therefore, can be more

fallacious than to infer the extent of any power, proper to be

lodged in the national government, from an estimate of its immediate

necessities. There ought to be a CAPACITY to provide for future

contingencies as they may happen; and as these are illimitable in

their nature, it is impossible safely to limit that capacity. It is

true, perhaps, that a computation might be made with sufficient

accuracy to answer the purpose of the quantity of revenue requisite

to discharge the subsisting engagements of the Union, and to

maintain those establishments which, for some time to come, would

suffice in time of peace. But would it be wise, or would it not

rather be the extreme of folly, to stop at this point, and to leave

the government intrusted with the care of the national defense in a

state of absolute incapacity to provide for the protection of the

community against future invasions of the public peace, by foreign

war or domestic convulsions? If, on the contrary, we ought to

exceed this point, where can we stop, short of an indefinite power

of providing for emergencies as they may arise? Though it is easy

to assert, in general terms, the possibility of forming a rational

judgment of a due provision against probable dangers, yet we may

safely challenge those who make the assertion to bring forward their

data, and may affirm that they would be found as vague and uncertain

as any that could be produced to establish the probable duration of

the world. Observations confined to the mere prospects of internal

attacks can deserve no weight; though even these will admit of no

satisfactory calculation: but if we mean to be a commercial people,

it must form a part of our policy to be able one day to defend that

commerce. The support of a navy and of naval wars would involve

contingencies that must baffle all the efforts of political

arithmetic.

Admitting that we ought to try the novel and absurd experiment

in politics of tying up the hands of government from offensive war

founded upon reasons of state, yet certainly we ought not to disable

it from guarding the community against the ambition or enmity of

other nations. A cloud has been for some time hanging over the

European world. If it should break forth into a storm, who can

insure us that in its progress a part of its fury would not be spent

upon us? No reasonable man would hastily pronounce that we are

entirely out of its reach. Or if the combustible materials that now

seem to be collecting should be dissipated without coming to

maturity, or if a flame should be kindled without extending to us,

what security can we have that our tranquillity will long remain

undisturbed from some other cause or from some other quarter? Let

us recollect that peace or war will not always be left to our

option; that however moderate or unambitious we may be, we cannot

count upon the moderation, or hope to extinguish the ambition of

others. Who could have imagined at the conclusion of the last war

that France and Britain, wearied and exhausted as they both were,

would so soon have looked with so hostile an aspect upon each other?

To judge from the history of mankind, we shall be compelled to

conclude that the fiery and destructive passions of war reign in the

human breast with much more powerful sway than the mild and

beneficent sentiments of peace; and that to model our political

systems upon speculations of lasting tranquillity, is to calculate

on the weaker springs of the human character.

What are the chief sources of expense in every government? What

has occasioned that enormous accumulation of debts with which

several of the European nations are oppressed? The answers plainly

is, wars and rebellions; the support of those institutions which

are necessary to guard the body politic against these two most

mortal diseases of society. The expenses arising from those

institutions which are relative to the mere domestic police of a

state, to the support of its legislative, executive, and judicial

departments, with their different appendages, and to the

encouragement of agriculture and manufactures (which will comprehend

almost all the objects of state expenditure), are insignificant in

comparison with those which relate to the national defense.

In the kingdom of Great Britain, where all the ostentatious

apparatus of monarchy is to be provided for, not above a fifteenth

part of the annual income of the nation is appropriated to the class

of expenses last mentioned; the other fourteen fifteenths are

absorbed in the payment of the interest of debts contracted for

carrying on the wars in which that country has been engaged, and in

the maintenance of fleets and armies. If, on the one hand, it

should be observed that the expenses incurred in the prosecution of

the ambitious enterprises and vainglorious pursuits of a monarchy

are not a proper standard by which to judge of those which might be

necessary in a republic, it ought, on the other hand, to be remarked

that there should be as great a disproportion between the profusion

and extravagance of a wealthy kingdom in its domestic

administration, and the frugality and economy which in that

particular become the modest simplicity of republican government.

If we balance a proper deduction from one side against that which

it is supposed ought to be made from the other, the proportion may

still be considered as holding good.

But let us advert to the large debt which we have ourselves

contracted in a single war, and let us only calculate on a common

share of the events which disturb the peace of nations, and we shall

instantly perceive, without the aid of any elaborate illustration,

that there must always be an immense disproportion between the

objects of federal and state expenditures. It is true that several

of the States, separately, are encumbered with considerable debts,

which are an excrescence of the late war. But this cannot happen

again, if the proposed system be adopted; and when these debts are

discharged, the only call for revenue of any consequence, which the

State governments will continue to experience, will be for the mere

support of their respective civil list; to which, if we add all

contingencies, the total amount in every State ought to fall

considerably short of two hundred thousand pounds.

In framing a government for posterity as well as ourselves, we

ought, in those provisions which are designed to be permanent, to

calculate, not on temporary, but on permanent causes of expense. If

this principle be a just one our attention would be directed to a

provision in favor of the State governments for an annual sum of

about two hundred thousand pounds; while the exigencies of the

Union could be susceptible of no limits, even in imagination. In

this view of the subject, by what logic can it be maintained that

the local governments ought to command, in perpetuity, an EXCLUSIVE

source of revenue for any sum beyond the extent of two hundred

thousand pounds? To extend its power further, in EXCLUSION of the

authority of the Union, would be to take the resources of the

community out of those hands which stood in need of them for the

public welfare, in order to put them into other hands which could

have no just or proper occasion for them.

Suppose, then, the convention had been inclined to proceed upon

the principle of a repartition of the objects of revenue, between

the Union and its members, in PROPORTION to their comparative

necessities; what particular fund could have been selected for the

use of the States, that would not either have been too much or too

little too little for their present, too much for their future

wants? As to the line of separation between external and internal

taxes, this would leave to the States, at a rough computation, the

command of two thirds of the resources of the community to defray

from a tenth to a twentieth part of its expenses; and to the Union,

one third of the resources of the community, to defray from nine

tenths to nineteen twentieths of its expenses. If we desert this

boundary and content ourselves with leaving to the States an

exclusive power of taxing houses and lands, there would still be a

great disproportion between the MEANS and the END; the possession

of one third of the resources of the community to supply, at most,

one tenth of its wants. If any fund could have been selected and

appropriated, equal to and not greater than the object, it would

have been inadequate to the discharge of the existing debts of the

particular States, and would have left them dependent on the Union

for a provision for this purpose.

The preceding train of observation will justify the position

which has been elsewhere laid down, that ``A CONCURRENT JURISDICTION

in the article of taxation was the only admissible substitute for an

entire subordination, in respect to this branch of power, of State

authority to that of the Union.'' Any separation of the objects of

revenue that could have been fallen upon, would have amounted to a

sacrifice of the great INTERESTS of the Union to the POWER of the

individual States. The convention thought the concurrent

jurisdiction preferable to that subordination; and it is evident

that it has at least the merit of reconciling an indefinite

constitutional power of taxation in the Federal government with an

adequate and independent power in the States to provide for their

own necessities. There remain a few other lights, in which this

important subject of taxation will claim a further consideration.

PUBLIUS.

 

FEDERALIST No. 35

The Same Subject Continued

(Concerning the General Power of Taxation)

For the Independent Journal.

HAMILTON

To the People of the State of New York:

BEFORE we proceed to examine any other objections to an

indefinite power of taxation in the Union, I shall make one general

remark; which is, that if the jurisdiction of the national

government, in the article of revenue, should be restricted to

particular objects, it would naturally occasion an undue proportion

of the public burdens to fall upon those objects. Two evils would

spring from this source: the oppression of particular branches of

industry; and an unequal distribution of the taxes, as well among

the several States as among the citizens of the same State.

Suppose, as has been contended for, the federal power of

taxation were to be confined to duties on imports, it is evident

that the government, for want of being able to command other

resources, would frequently be tempted to extend these duties to an

injurious excess. There are persons who imagine that they can never

be carried to too great a length; since the higher they are, the

more it is alleged they will tend to discourage an extravagant

consumption, to produce a favorable balance of trade, and to promote

domestic manufactures. But all extremes are pernicious in various

ways. Exorbitant duties on imported articles would beget a general

spirit of smuggling; which is always prejudicial to the fair

trader, and eventually to the revenue itself: they tend to render

other classes of the community tributary, in an improper degree, to

the manufacturing classes, to whom they give a premature monopoly of

the markets; they sometimes force industry out of its more natural

channels into others in which it flows with less advantage; and in

the last place, they oppress the merchant, who is often obliged to

pay them himself without any retribution from the consumer. When

the demand is equal to the quantity of goods at market, the consumer

generally pays the duty; but when the markets happen to be

overstocked, a great proportion falls upon the merchant, and

sometimes not only exhausts his profits, but breaks in upon his

capital. I am apt to think that a division of the duty, between the

seller and the buyer, more often happens than is commonly imagined.

It is not always possible to raise the price of a commodity in

exact proportion to every additional imposition laid upon it. The

merchant, especially in a country of small commercial capital, is

often under a necessity of keeping prices down in order to a more

expeditious sale.

The maxim that the consumer is the payer, is so much oftener

true than the reverse of the proposition, that it is far more

equitable that the duties on imports should go into a common stock,

than that they should redound to the exclusive benefit of the

importing States. But it is not so generally true as to render it

equitable, that those duties should form the only national fund.

When they are paid by the merchant they operate as an additional

tax upon the importing State, whose citizens pay their proportion of

them in the character of consumers. In this view they are

productive of inequality among the States; which inequality would

be increased with the increased extent of the duties. The

confinement of the national revenues to this species of imposts

would be attended with inequality, from a different cause, between

the manufacturing and the non-manufacturing States. The States

which can go farthest towards the supply of their own wants, by

their own manufactures, will not, according to their numbers or

wealth, consume so great a proportion of imported articles as those

States which are not in the same favorable situation. They would

not, therefore, in this mode alone contribute to the public treasury

in a ratio to their abilities. To make them do this it is necessary

that recourse be had to excises, the proper objects of which are

particular kinds of manufactures. New York is more deeply

interested in these considerations than such of her citizens as

contend for limiting the power of the Union to external taxation may

be aware of. New York is an importing State, and is not likely

speedily to be, to any great extent, a manufacturing State. She

would, of course, suffer in a double light from restraining the

jurisdiction of the Union to commercial imposts.

So far as these observations tend to inculcate a danger of the

import duties being extended to an injurious extreme it may be

observed, conformably to a remark made in another part of these

papers, that the interest of the revenue itself would be a

sufficient guard against such an extreme. I readily admit that this

would be the case, as long as other resources were open; but if the

avenues to them were closed, HOPE, stimulated by necessity, would

beget experiments, fortified by rigorous precautions and additional

penalties, which, for a time, would have the intended effect, till

there had been leisure to contrive expedients to elude these new

precautions. The first success would be apt to inspire false

opinions, which it might require a long course of subsequent

experience to correct. Necessity, especially in politics, often

occasions false hopes, false reasonings, and a system of measures

correspondingly erroneous. But even if this supposed excess should

not be a consequence of the limitation of the federal power of

taxation, the inequalities spoken of would still ensue, though not

in the same degree, from the other causes that have been noticed.

Let us now return to the examination of objections.

One which, if we may judge from the frequency of its repetition,

seems most to be relied on, is, that the House of Representatives is

not sufficiently numerous for the reception of all the different

classes of citizens, in order to combine the interests and feelings

of every part of the community, and to produce a due sympathy

between the representative body and its constituents. This argument

presents itself under a very specious and seducing form; and is

well calculated to lay hold of the prejudices of those to whom it is

addressed. But when we come to dissect it with attention, it will

appear to be made up of nothing but fair-sounding words. The object

it seems to aim at is, in the first place, impracticable, and in the

sense in which it is contended for, is unnecessary. I reserve for

another place the discussion of the question which relates to the

sufficiency of the representative body in respect to numbers, and

shall content myself with examining here the particular use which

has been made of a contrary supposition, in reference to the

immediate subject of our inquiries.

The idea of an actual representation of all classes of the

people, by persons of each class, is altogether visionary. Unless

it were expressly provided in the Constitution, that each different

occupation should send one or more members, the thing would never

take place in practice. Mechanics and manufacturers will always be

inclined, with few exceptions, to give their votes to merchants, in

preference to persons of their own professions or trades. Those

discerning citizens are well aware that the mechanic and

manufacturing arts furnish the materials of mercantile enterprise

and industry. Many of them, indeed, are immediately connected with

the operations of commerce. They know that the merchant is their

natural patron and friend; and they are aware, that however great

the confidence they may justly feel in their own good sense, their

interests can be more effectually promoted by the merchant than by

themselves. They are sensible that their habits in life have not

been such as to give them those acquired endowments, without which,

in a deliberative assembly, the greatest natural abilities are for

the most part useless; and that the influence and weight, and

superior acquirements of the merchants render them more equal to a

contest with any spirit which might happen to infuse itself into the

public councils, unfriendly to the manufacturing and trading

interests. These considerations, and many others that might be

mentioned prove, and experience confirms it, that artisans and

manufacturers will commonly be disposed to bestow their votes upon

merchants and those whom they recommend. We must therefore consider

merchants as the natural representatives of all these classes of the

community.

With regard to the learned professions, little need be observed;

they truly form no distinct interest in society, and according to

their situation and talents, will be indiscriminately the objects of

the confidence and choice of each other, and of other parts of the

community.

Nothing remains but the landed interest; and this, in a

political view, and particularly in relation to taxes, I take to be

perfectly united, from the wealthiest landlord down to the poorest

tenant. No tax can be laid on land which will not affect the

proprietor of millions of acres as well as the proprietor of a

single acre. Every landholder will therefore have a common interest

to keep the taxes on land as low as possible; and common interest

may always be reckoned upon as the surest bond of sympathy. But if

we even could suppose a distinction of interest between the opulent

landholder and the middling farmer, what reason is there to

conclude, that the first would stand a better chance of being

deputed to the national legislature than the last? If we take fact

as our guide, and look into our own senate and assembly, we shall

find that moderate proprietors of land prevail in both; nor is this

less the case in the senate, which consists of a smaller number,

than in the assembly, which is composed of a greater number. Where

the qualifications of the electors are the same, whether they have

to choose a small or a large number, their votes will fall upon

those in whom they have most confidence; whether these happen to be

men of large fortunes, or of moderate property, or of no property at

all.

It is said to be necessary, that all classes of citizens should

have some of their own number in the representative body, in order

that their feelings and interests may be the better understood and

attended to. But we have seen that this will never happen under any

arrangement that leaves the votes of the people free. Where this is

the case, the representative body, with too few exceptions to have

any influence on the spirit of the government, will be composed of

landholders, merchants, and men of the learned professions. But

where is the danger that the interests and feelings of the different

classes of citizens will not be understood or attended to by these

three descriptions of men? Will not the landholder know and feel

whatever will promote or insure the interest of landed property?

And will he not, from his own interest in that species of property,

be sufficiently prone to resist every attempt to prejudice or

encumber it? Will not the merchant understand and be disposed to

cultivate, as far as may be proper, the interests of the mechanic

and manufacturing arts, to which his commerce is so nearly allied?

Will not the man of the learned profession, who will feel a

neutrality to the rivalships between the different branches of

industry, be likely to prove an impartial arbiter between them,

ready to promote either, so far as it shall appear to him conducive

to the general interests of the society?

If we take into the account the momentary humors or dispositions

which may happen to prevail in particular parts of the society, and

to which a wise administration will never be inattentive, is the man

whose situation leads to extensive inquiry and information less

likely to be a competent judge of their nature, extent, and

foundation than one whose observation does not travel beyond the

circle of his neighbors and acquaintances? Is it not natural that a

man who is a candidate for the favor of the people, and who is

dependent on the suffrages of his fellow-citizens for the

continuance of his public honors, should take care to inform himself

of their dispositions and inclinations, and should be willing to

allow them their proper degree of influence upon his conduct? This

dependence, and the necessity of being bound himself, and his

posterity, by the laws to which he gives his assent, are the true,

and they are the strong chords of sympathy between the

representative and the constituent.

There is no part of the administration of government that

requires extensive information and a thorough knowledge of the

principles of political economy, so much as the business of taxation.

The man who understands those principles best will be least likely

to resort to oppressive expedients, or sacrifice any particular

class of citizens to the procurement of revenue. It might be

demonstrated that the most productive system of finance will always

be the least burdensome. There can be no doubt that in order to a

judicious exercise of the power of taxation, it is necessary that

the person in whose hands it should be acquainted with the general

genius, habits, and modes of thinking of the people at large, and

with the resources of the country. And this is all that can be

reasonably meant by a knowledge of the interests and feelings of the

people. In any other sense the proposition has either no meaning,

or an absurd one. And in that sense let every considerate citizen

judge for himself where the requisite qualification is most likely

to be found.

PUBLIUS.

 

FEDERALIST No. 36

The Same Subject Continued

(Concerning the General Power of Taxation)

From the New York Packet.

Tuesday January 8, 1788.

HAMILTON

To the People of the State of New York:

WE HAVE seen that the result of the observations, to which the

foregoing number has been principally devoted, is, that from the

natural operation of the different interests and views of the

various classes of the community, whether the representation of the

people be more or less numerous, it will consist almost entirely of

proprietors of land, of merchants, and of members of the learned

professions, who will truly represent all those different interests

and views. If it should be objected that we have seen other

descriptions of men in the local legislatures, I answer that it is

admitted there are exceptions to the rule, but not in sufficient

number to influence the general complexion or character of the

government. There are strong minds in every walk of life that will

rise superior to the disadvantages of situation, and will command

the tribute due to their merit, not only from the classes to which

they particularly belong, but from the society in general. The door

ought to be equally open to all; and I trust, for the credit of

human nature, that we shall see examples of such vigorous plants

flourishing in the soil of federal as well as of State legislation;

but occasional instances of this sort will not render the reasoning

founded upon the general course of things, less conclusive.

The subject might be placed in several other lights that would

all lead to the same result; and in particular it might be asked,

What greater affinity or relation of interest can be conceived

between the carpenter and blacksmith, and the linen manufacturer or

stocking weaver, than between the merchant and either of them? It

is notorious that there are often as great rivalships between

different branches of the mechanic or manufacturing arts as there

are between any of the departments of labor and industry; so that,

unless the representative body were to be far more numerous than

would be consistent with any idea of regularity or wisdom in its

deliberations, it is impossible that what seems to be the spirit of

the objection we have been considering should ever be realized in

practice. But I forbear to dwell any longer on a matter which has

hitherto worn too loose a garb to admit even of an accurate

inspection of its real shape or tendency.

There is another objection of a somewhat more precise nature

that claims our attention. It has been asserted that a power of

internal taxation in the national legislature could never be

exercised with advantage, as well from the want of a sufficient

knowledge of local circumstances, as from an interference between

the revenue laws of the Union and of the particular States. The

supposition of a want of proper knowledge seems to be entirely

destitute of foundation. If any question is depending in a State

legislature respecting one of the counties, which demands a

knowledge of local details, how is it acquired? No doubt from the

information of the members of the county. Cannot the like knowledge

be obtained in the national legislature from the representatives of

each State? And is it not to be presumed that the men who will

generally be sent there will be possessed of the necessary degree of

intelligence to be able to communicate that information? Is the

knowledge of local circumstances, as applied to taxation, a minute

topographical acquaintance with all the mountains, rivers, streams,

highways, and bypaths in each State; or is it a general

acquaintance with its situation and resources, with the state of its

agriculture, commerce, manufactures, with the nature of its products

and consumptions, with the different degrees and kinds of its

wealth, property, and industry?

Nations in general, even under governments of the more popular

kind, usually commit the administration of their finances to single

men or to boards composed of a few individuals, who digest and

prepare, in the first instance, the plans of taxation, which are

afterwards passed into laws by the authority of the sovereign or

legislature.

Inquisitive and enlightened statesmen are deemed everywhere best

qualified to make a judicious selection of the objects proper for

revenue; which is a clear indication, as far as the sense of

mankind can have weight in the question, of the species of knowledge

of local circumstances requisite to the purposes of taxation.

The taxes intended to be comprised under the general

denomination of internal taxes may be subdivided into those of the

DIRECT and those of the INDIRECT kind. Though the objection be made

to both, yet the reasoning upon it seems to be confined to the

former branch. And indeed, as to the latter, by which must be

understood duties and excises on articles of consumption, one is at

a loss to conceive what can be the nature of the difficulties

apprehended. The knowledge relating to them must evidently be of a

kind that will either be suggested by the nature of the article

itself, or can easily be procured from any well-informed man,

especially of the mercantile class. The circumstances that may

distinguish its situation in one State from its situation in another

must be few, simple, and easy to be comprehended. The principal

thing to be attended to, would be to avoid those articles which had

been previously appropriated to the use of a particular State; and

there could be no difficulty in ascertaining the revenue system of

each. This could always be known from the respective codes of laws,

as well as from the information of the members from the several

States.

The objection, when applied to real property or to houses and

lands, appears to have, at first sight, more foundation, but even in

this view it will not bear a close examination. Land taxes are co

monly laid in one of two modes, either by ACTUAL valuations,

permanent or periodical, or by OCCASIONAL assessments, at the

discretion, or according to the best judgment, of certain officers

whose duty it is to make them. In either case, the EXECUTION of the

business, which alone requires the knowledge of local details, must

be devolved upon discreet persons in the character of commissioners

or assessors, elected by the people or appointed by the government

for the purpose. All that the law can do must be to name the

persons or to prescribe the manner of their election or appointment,

to fix their numbers and qualifications and to draw the general

outlines of their powers and duties. And what is there in all this

that cannot as well be performed by the national legislature as by a

State legislature? The attention of either can only reach to

general principles; local details, as already observed, must be

referred to those who are to execute the plan.

But there is a simple point of view in which this matter may be

placed that must be altogether satisfactory. The national

legislature can make use of the SYSTEM OF EACH STATE WITHIN THAT

STATE. The method of laying and collecting this species of taxes in

each State can, in all its parts, be adopted and employed by the

federal government.

Let it be recollected that the proportion of these taxes is not

to be left to the discretion of the national legislature, but is to

be determined by the numbers of each State, as described in the

second section of the first article. An actual census or

enumeration of the people must furnish the rule, a circumstance

which effectually shuts the door to partiality or oppression. The

abuse of this power of taxation seems to have been provided against

with guarded circumspection. In addition to the precaution just

mentioned, there is a provision that ``all duties, imposts, and

excises shall be UNIFORM throughout the United States.''

It has been very properly observed by different speakers and

writers on the side of the Constitution, that if the exercise of the

power of internal taxation by the Union should be discovered on

experiment to be really inconvenient, the federal government may

then forbear the use of it, and have recourse to requisitions in its

stead. By way of answer to this, it has been triumphantly asked,

Why not in the first instance omit that ambiguous power, and rely

upon the latter resource? Two solid answers may be given. The

first is, that the exercise of that power, if convenient, will be

preferable, because it will be more effectual; and it is impossible

to prove in theory, or otherwise than by the experiment, that it

cannot be advantageously exercised. The contrary, indeed, appears

most probable. The second answer is, that the existence of such a

power in the Constitution will have a strong influence in giving

efficacy to requisitions. When the States know that the Union can

apply itself without their agency, it will be a powerful motive for

exertion on their part.

As to the interference of the revenue laws of the Union, and of

its members, we have already seen that there can be no clashing or

repugnancy of authority. The laws cannot, therefore, in a legal

sense, interfere with each other; and it is far from impossible to

avoid an interference even in the policy of their different systems.

An effectual expedient for this purpose will be, mutually, to

abstain from those objects which either side may have first had

recourse to. As neither can CONTROL the other, each will have an

obvious and sensible interest in this reciprocal forbearance. And

where there is an IMMEDIATE common interest, we may safely count

upon its operation. When the particular debts of the States are

done away, and their expenses come to be limited within their

natural compass, the possibility almost of interference will vanish.

A small land tax will answer the purpose of the States, and will be

their most simple and most fit resource.

Many spectres have been raised out of this power of internal

taxation, to excite the apprehensions of the people: double sets of

revenue officers, a duplication of their burdens by double

taxations, and the frightful forms of odious and oppressive

poll-taxes, have been played off with all the ingenious dexterity of

political legerdemain.

As to the first point, there are two cases in which there can be

no room for double sets of officers: one, where the right of

imposing the tax is exclusively vested in the Union, which applies

to the duties on imports; the other, where the object has not

fallen under any State regulation or provision, which may be

applicable to a variety of objects. In other cases, the probability

is that the United States will either wholly abstain from the

objects preoccupied for local purposes, or will make use of the

State officers and State regulations for collecting the additional

imposition. This will best answer the views of revenue, because it

will save expense in the collection, and will best avoid any

occasion of disgust to the State governments and to the people. At

all events, here is a practicable expedient for avoiding such an

inconvenience; and nothing more can be required than to show that

evils predicted to not necessarily result from the plan.

As to any argument derived from a supposed system of influence,

it is a sufficient answer to say that it ought not to be presumed;

but the supposition is susceptible of a more precise answer. If

such a spirit should infest the councils of the Union, the most

certain road to the accomplishment of its aim would be to employ the

State officers as much as possible, and to attach them to the Union

by an accumulation of their emoluments. This would serve to turn

the tide of State influence into the channels of the national

government, instead of making federal influence flow in an opposite

and adverse current. But all suppositions of this kind are

invidious, and ought to be banished from the consideration of the

great question before the people. They can answer no other end than

to cast a mist over the truth.

As to the suggestion of double taxation, the answer is plain.

The wants of the Union are to be supplied in one way or another;

if to be done by the authority of the federal government, it will

not be to be done by that of the State government. The quantity of

taxes to be paid by the community must be the same in either case;

with this advantage, if the provision is to be made by the

Union that the capital resource of commercial imposts, which is the

most convenient branch of revenue, can be prudently improved to a

much greater extent under federal than under State regulation, and

of course will render it less necessary to recur to more

inconvenient methods; and with this further advantage, that as far

as there may be any real difficulty in the exercise of the power of

internal taxation, it will impose a disposition to greater care in

the choice and arrangement of the means; and must naturally tend to

make it a fixed point of policy in the national administration to go

as far as may be practicable in making the luxury of the rich

tributary to the public treasury, in order to diminish the necessity

of those impositions which might create dissatisfaction in the

poorer and most numerous classes of the society. Happy it is when

the interest which the government has in the preservation of its own

power, coincides with a proper distribution of the public burdens,

and tends to guard the least wealthy part of the community from

oppression!

As to poll taxes, I, without scruple, confess my disapprobation

of them; and though they have prevailed from an early period in

those States [1] which have uniformly been the most tenacious of

their rights, I should lament to see them introduced into practice

under the national government. But does it follow because there is

a power to lay them that they will actually be laid? Every State in

the Union has power to impose taxes of this kind; and yet in

several of them they are unknown in practice. Are the State

governments to be stigmatized as tyrannies, because they possess

this power? If they are not, with what propriety can the like power

justify such a charge against the national government, or even be

urged as an obstacle to its adoption? As little friendly as I am to

the species of imposition, I still feel a thorough conviction that

the power of having recourse to it ought to exist in the federal

government. There are certain emergencies of nations, in which

expedients, that in the ordinary state of things ought to be

forborne, become essential to the public weal. And the government,

from the possibility of such emergencies, ought ever to have the

option of making use of them. The real scarcity of objects in this

country, which may be considered as productive sources of revenue,

is a reason peculiar to itself, for not abridging the discretion of

the national councils in this respect. There may exist certain

critical and tempestuous conjunctures of the State, in which a poll

tax may become an inestimable resource. And as I know nothing to

exempt this portion of the globe from the common calamities that

have befallen other parts of it, I acknowledge my aversion to every

project that is calculated to disarm the government of a single

weapon, which in any possible contingency might be usefully employed

for the general defense and security.

I have now gone through the examination of such of the powers

proposed to be vested in the United States, which may be considered

as having an immediate relation to the energy of the government;

and have endeavored to answer the principal objections which have

been made to them. I have passed over in silence those minor

authorities, which are either too inconsiderable to have been

thought worthy of the hostilities of the opponents of the

Constitution, or of too manifest propriety to admit of controversy.

The mass of judiciary power, however, might have claimed an

investigation under this head, had it not been for the consideration

that its organization and its extent may be more advantageously

considered in connection. This has determined me to refer it to the

branch of our inquiries upon which we shall next enter.

PUBLIUS.

FNA1-@1 The New England States.

 

FEDERALIST No. 37

Concerning the Difficulties of the Convention in Devising a Proper

Form of Government

From the Daily Advertiser.

Friday, January 11, 1788.

MADISON

To the People of the State of New York:

IN REVIEWING the defects of the existing Confederation, and

showing that they cannot be supplied by a government of less energy

than that before the public, several of the most important

principles of the latter fell of course under consideration. But as

the ultimate object of these papers is to determine clearly and

fully the merits of this Constitution, and the expediency of

adopting it, our plan cannot be complete without taking a more

critical and thorough survey of the work of the convention, without

examining it on all its sides, comparing it in all its parts, and

calculating its probable effects.

That this remaining task may be executed under impressions

conducive to a just and fair result, some reflections must in this

place be indulged, which candor previously suggests.

It is a misfortune, inseparable from human affairs, that public

measures are rarely investigated with that spirit of moderation

which is essential to a just estimate of their real tendency to

advance or obstruct the public good; and that this spirit is more

apt to be diminished than promoted, by those occasions which require

an unusual exercise of it. To those who have been led by experience

to attend to this consideration, it could not appear surprising,

that the act of the convention, which recommends so many important

changes and innovations, which may be viewed in so many lights and

relations, and which touches the springs of so many passions and

interests, should find or excite dispositions unfriendly, both on

one side and on the other, to a fair discussion and accurate

judgment of its merits. In some, it has been too evident from their

own publications, that they have scanned the proposed Constitution,

not only with a predisposition to censure, but with a

predetermination to condemn; as the language held by others betrays

an opposite predetermination or bias, which must render their

opinions also of little moment in the question. In placing,

however, these different characters on a level, with respect to the

weight of their opinions, I wish not to insinuate that there may not

be a material difference in the purity of their intentions. It is

but just to remark in favor of the latter description, that as our

situation is universally admitted to be peculiarly critical, and to

require indispensably that something should be done for our relief,

the predetermined patron of what has been actually done may have

taken his bias from the weight of these considerations, as well as

from considerations of a sinister nature. The predetermined

adversary, on the other hand, can have been governed by no venial

motive whatever. The intentions of the first may be upright, as

they may on the contrary be culpable. The views of the last cannot

be upright, and must be culpable. But the truth is, that these

papers are not addressed to persons falling under either of these

characters. They solicit the attention of those only, who add to a

sincere zeal for the happiness of their country, a temper favorable

to a just estimate of the means of promoting it.

Persons of this character will proceed to an examination of the

plan submitted by the convention, not only without a disposition to

find or to magnify faults; but will see the propriety of

reflecting, that a faultless plan was not to be expected. Nor will

they barely make allowances for the errors which may be chargeable

on the fallibility to which the convention, as a body of men, were

liable; but will keep in mind, that they themselves also are but

men, and ought not to assume an infallibility in rejudging the

fallible opinions of others.

With equal readiness will it be perceived, that besides these

inducements to candor, many allowances ought to be made for the

difficulties inherent in the very nature of the undertaking referred

to the convention.

The novelty of the undertaking immediately strikes us. It has

been shown in the course of these papers, that the existing

Confederation is founded on principles which are fallacious; that

we must consequently change this first foundation, and with it the

superstructure resting upon it. It has been shown, that the other

confederacies which could be consulted as precedents have been

vitiated by the same erroneous principles, and can therefore furnish

no other light than that of beacons, which give warning of the

course to be shunned, without pointing out that which ought to be

pursued. The most that the convention could do in such a situation,

was to avoid the errors suggested by the past experience of other

countries, as well as of our own; and to provide a convenient mode

of rectifying their own errors, as future experiences may unfold

them.

Among the difficulties encountered by the convention, a very

important one must have lain in combining the requisite stability

and energy in government, with the inviolable attention due to

liberty and to the republican form. Without substantially

accomplishing this part of their undertaking, they would have very

imperfectly fulfilled the object of their appointment, or the

expectation of the public; yet that it could not be easily

accomplished, will be denied by no one who is unwilling to betray

his ignorance of the subject. Energy in government is essential to

that security against external and internal danger, and to that

prompt and salutary execution of the laws which enter into the very

definition of good government. Stability in government is essential

to national character and to the advantages annexed to it, as well

as to that repose and confidence in the minds of the people, which

are among the chief blessings of civil society. An irregular and

mutable legislation is not more an evil in itself than it is odious

to the people; and it may be pronounced with assurance that the

people of this country, enlightened as they are with regard to the

nature, and interested, as the great body of them are, in the

effects of good government, will never be satisfied till some remedy

be applied to the vicissitudes and uncertainties which characterize

the State administrations. On comparing, however, these valuable

ingredients with the vital principles of liberty, we must perceive

at once the difficulty of mingling them together in their due

proportions. The genius of republican liberty seems to demand on

one side, not only that all power should be derived from the people,

but that those intrusted with it should be kept in independence on

the people, by a short duration of their appointments; and that

even during this short period the trust should be placed not in a

few, but a number of hands. Stability, on the contrary, requires

that the hands in which power is lodged should continue for a length

of time the same. A frequent change of men will result from a

frequent return of elections; and a frequent change of measures

from a frequent change of men: whilst energy in government requires

not only a certain duration of power, but the execution of it by a

single hand.

How far the convention may have succeeded in this part of their

work, will better appear on a more accurate view of it. From the

cursory view here taken, it must clearly appear to have been an

arduous part.

Not less arduous must have been the task of marking the proper

line of partition between the authority of the general and that of

the State governments. Every man will be sensible of this

difficulty, in proportion as he has been accustomed to contemplate

and discriminate objects extensive and complicated in their nature.

The faculties of the mind itself have never yet been distinguished

and defined, with satisfactory precision, by all the efforts of the

most acute and metaphysical philosophers. Sense, perception,

judgment, desire, volition, memory, imagination, are found to be

separated by such delicate shades and minute gradations that their

boundaries have eluded the most subtle investigations, and remain a

pregnant source of ingenious disquisition and controversy. The

boundaries between the great kingdom of nature, and, still more,

between the various provinces, and lesser portions, into which they

are subdivided, afford another illustration of the same important

truth. The most sagacious and laborious naturalists have never yet

succeeded in tracing with certainty the line which separates the

district of vegetable life from the neighboring region of

unorganized matter, or which marks the ermination of the former and

the commencement of the animal empire. A still greater obscurity

lies in the distinctive characters by which the objects in each of

these great departments of nature have been arranged and assorted.

When we pass from the works of nature, in which all the

delineations are perfectly accurate, and appear to be otherwise only

from the imperfection of the eye which surveys them, to the

institutions of man, in which the obscurity arises as well from the

object itself as from the organ by which it is contemplated, we must

perceive the necessity of moderating still further our expectations

and hopes from the efforts of human sagacity. Experience has

instructed us that no skill in the science of government has yet

been able to discriminate and define, with sufficient certainty, its

three great provinces the legislative, executive, and judiciary; or

even the privileges and powers of the different legislative branches.

Questions daily occur in the course of practice, which prove the

obscurity which reins in these subjects, and which puzzle the

greatest adepts in political science.

The experience of ages, with the continued and combined labors

of the most enlightened legislatures and jurists, has been equally

unsuccessful in delineating the several objects and limits of

different codes of laws and different tribunals of justice. The

precise extent of the common law, and the statute law, the maritime

law, the ecclesiastical law, the law of corporations, and other

local laws and customs, remains still to be clearly and finally

established in Great Britain, where accuracy in such subjects has

been more industriously pursued than in any other part of the world.

The jurisdiction of her several courts, general and local, of law,

of equity, of admiralty, etc., is not less a source of frequent and

intricate discussions, sufficiently denoting the indeterminate

limits by which they are respectively circumscribed. All new laws,

though penned with the greatest technical skill, and passed on the

fullest and most mature deliberation, are considered as more or less

obscure and equivocal, until their meaning be liquidated and

ascertained by a series of particular discussions and adjudications.

Besides the obscurity arising from the complexity of objects, and

the imperfection of the human faculties, the medium through which

the conceptions of men are conveyed to each other adds a fresh

embarrassment. The use of words is to express ideas. Perspicuity,

therefore, requires not only that the ideas should be distinctly

formed, but that they should be expressed by words distinctly and

exclusively appropriate to them. But no language is so copious as

to supply words and phrases for every complex idea, or so correct as

not to include many equivocally denoting different ideas. Hence it

must happen that however accurately objects may be discriminated in

themselves, and however accurately the discrimination may be

considered, the definition of them may be rendered inaccurate by the

inaccuracy of the terms in which it is delivered. And this

unavoidable inaccuracy must be greater or less, according to the

complexity and novelty of the objects defined. When the Almighty

himself condescends to address mankind in their own language, his

meaning, luminous as it must be, is rendered dim and doubtful by the

cloudy medium through which it is communicated.

Here, then, are three sources of vague and incorrect

definitions: indistinctness of the object, imperfection of the

organ of conception, inadequateness of the vehicle of ideas. Any

one of these must produce a certain degree of obscurity. The

convention, in delineating the boundary between the federal and

State jurisdictions, must have experienced the full effect of them

all.

To the difficulties already mentioned may be added the

interfering pretensions of the larger and smaller States. We cannot

err in supposing that the former would contend for a participation

in the government, fully proportioned to their superior wealth and

importance; and that the latter would not be less tenacious of the

equality at present enjoyed by them. We may well suppose that

neither side would entirely yield to the other, and consequently

that the struggle could be terminated only by compromise. It is

extremely probable, also, that after the ratio of representation had

been adjusted, this very compromise must have produced a fresh

struggle between the same parties, to give such a turn to the

organization of the government, and to the distribution of its

powers, as would increase the importance of the branches, in forming

which they had respectively obtained the greatest share of influence.

There are features in the Constitution which warrant each of these

suppositions; and as far as either of them is well founded, it

shows that the convention must have been compelled to sacrifice

theoretical propriety to the force of extraneous considerations.

Nor could it have been the large and small States only, which

would marshal themselves in opposition to each other on various

points. Other combinations, resulting from a difference of local

position and policy, must have created additional difficulties. As

every State may be divided into different districts, and its

citizens into different classes, which give birth to contending

interests and local jealousies, so the different parts of the United

States are distinguished from each other by a variety of

circumstances, which produce a like effect on a larger scale. And

although this variety of interests, for reasons sufficiently

explained in a former paper, may have a salutary influence on the

administration of the government when formed, yet every one must be

sensible of the contrary influence, which must have been experienced

in the task of forming it.

Would it be wonderful if, under the pressure of all these

difficulties, the convention should have been forced into some

deviations from that artificial structure and regular symmetry which

an abstract view of the subject might lead an ingenious theorist to

bestow on a Constitution planned in his closet or in his

imagination? The real wonder is that so many difficulties should

have been surmounted, and surmounted with a unanimity almost as

unprecedented as it must have been unexpected. It is impossible for

any man of candor to reflect on this circumstance without partaking

of the astonishment. It is impossible for the man of pious

reflection not to perceive in it a finger of that Almighty hand

which has been so frequently and signally extended to our relief in

the critical stages of the revolution.

We had occasion, in a former paper, to take notice of the

repeated trials which have been unsuccessfully made in the United

Netherlands for reforming the baneful and notorious vices of their

constitution. The history of almost all the great councils and

consultations held among mankind for reconciling their discordant

opinions, assuaging their mutual jealousies, and adjusting their

respective interests, is a history of factions, contentions, and

disappointments, and may be classed among the most dark and degraded

pictures which display the infirmities and depravities of the human

character. If, in a few scattered instances, a brighter aspect is

presented, they serve only as exceptions to admonish us of the

general truth; and by their lustre to darken the gloom of the

adverse prospect to which they are contrasted. In revolving the

causes from which these exceptions result, and applying them to the

particular instances before us, we are necessarily led to two

important conclusions. The first is, that the convention must have

enjoyed, in a very singular degree, an exemption from the

pestilential influence of party animosities the disease most

incident to deliberative bodies, and most apt to contaminate their

proceedings. The second conclusion is that all the deputations

composing the convention were satisfactorily accommodated by the

final act, or were induced to accede to it by a deep conviction of

the necessity of sacrificing private opinions and partial interests

to the public good, and by a despair of seeing this necessity

diminished by delays or by new experiments.

 

FEDERALIST No. 38

The Same Subject Continued, and the Incoherence of the Objections

to the New Plan Exposed

From the New York Packet.

Tuesday, January 15, 1788.

MADISON

To the People of the State of New York:

IT IS not a little remarkable that in every case reported by

ancient history, in which government has been established with

deliberation and consent, the task of framing it has not been

committed to an assembly of men, but has been performed by some

individual citizen of preeminent wisdom and approved integrity.

Minos, we learn, was the primitive founder of the government of

Crete, as Zaleucus was of that of the Locrians. Theseus first, and

after him Draco and Solon, instituted the government of Athens.

Lycurgus was the lawgiver of Sparta. The foundation of the

original government of Rome was laid by Romulus, and the work

completed by two of his elective successors, Numa and Tullius

Hostilius. On the abolition of royalty the consular administration

was substituted by Brutus, who stepped forward with a project for

such a reform, which, he alleged, had been prepared by Tullius

Hostilius, and to which his address obtained the assent and

ratification of the senate and people. This remark is applicable to

confederate governments also. Amphictyon, we are told, was the

author of that which bore his name. The Achaean league received its

first birth from Achaeus, and its second from Aratus.

What degree of agency these reputed lawgivers might have in

their respective establishments, or how far they might be clothed

with the legitimate authority of the people, cannot in every

instance be ascertained. In some, however, the proceeding was

strictly regular. Draco appears to have been intrusted by the

people of Athens with indefinite powers to reform its government and

laws. And Solon, according to Plutarch, was in a manner compelled,

by the universal suffrage of his fellow-citizens, to take upon him

the sole and absolute power of new-modeling the constitution. The

proceedings under Lycurgus were less regular; but as far as the

advocates for a regular reform could prevail, they all turned their

eyes towards the single efforts of that celebrated patriot and sage,

instead of seeking to bring about a revolution by the intervention

of a deliberative body of citizens.

Whence could it have proceeded, that a people, jealous as the

Greeks were of their liberty, should so far abandon the rules of

caution as to place their destiny in the hands of a single citizen?

Whence could it have proceeded, that the Athenians, a people who

would not suffer an army to be commanded by fewer than ten generals,

and who required no other proof of danger to their liberties than

the illustrious merit of a fellow-citizen, should consider one

illustrious citizen as a more eligible depositary of the fortunes of

themselves and their posterity, than a select body of citizens, from

whose common deliberations more wisdom, as well as more safety,

might have been expected? These questions cannot be fully answered,

without supposing that the fears of discord and disunion among a

number of counsellors exceeded the apprehension of treachery or

incapacity in a single individual. History informs us, likewise, of

the difficulties with which these celebrated reformers had to

contend, as well as the expedients which they were obliged to employ

in order to carry their reforms into effect. Solon, who seems to

have indulged a more temporizing policy, confessed that he had not

given to his countrymen the government best suited to their

happiness, but most tolerable to their prejudices. And Lycurgus,

more true to his object, was under the necessity of mixing a portion

of violence with the authority of superstition, and of securing his

final success by a voluntary renunciation, first of his country, and

then of his life. If these lessons teach us, on one hand, to admire

the improvement made by America on the ancient mode of preparing and

establishing regular plans of government, they serve not less, on

the other, to admonish us of the hazards and difficulties incident

to such experiments, and of the great imprudence of unnecessarily

multiplying them.

Is it an unreasonable conjecture, that the errors which may be

contained in the plan of the convention are such as have resulted

rather from the defect of antecedent experience on this complicated

and difficult subject, than from a want of accuracy or care in the

investigation of it; and, consequently such as will not be

ascertained until an actual trial shall have pointed them out? This

conjecture is rendered probable, not only by many considerations of

a general nature, but by the particular case of the Articles of

Confederation. It is observable that among the numerous objections

and amendments suggested by the several States, when these articles

were submitted for their ratification, not one is found which

alludes to the great and radical error which on actual trial has

discovered itself. And if we except the observations which New

Jersey was led to make, rather by her local situation, than by her

peculiar foresight, it may be questioned whether a single suggestion

was of sufficient moment to justify a revision of the system. There

is abundant reason, nevertheless, to suppose that immaterial as

these objections were, they would have been adhered to with a very

dangerous inflexibility, in some States, had not a zeal for their

opinions and supposed interests been stifled by the more powerful

sentiment of selfpreservation. One State, we may remember,

persisted for several years in refusing her concurrence, although

the enemy remained the whole period at our gates, or rather in the

very bowels of our country. Nor was her pliancy in the end effected

by a less motive, than the fear of being chargeable with protracting

the public calamities, and endangering the event of the contest.

Every candid reader will make the proper reflections on these

important facts.

A patient who finds his disorder daily growing worse, and that

an efficacious remedy can no longer be delayed without extreme

danger, after coolly revolving his situation, and the characters of

different physicians, selects and calls in such of them as he judges

most capable of administering relief, and best entitled to his

confidence. The physicians attend; the case of the patient is

carefully examined; a consultation is held; they are unanimously

agreed that the symptoms are critical, but that the case, with

proper and timely relief, is so far from being desperate, that it

may be made to issue in an improvement of his constitution. They

are equally unanimous in prescribing the remedy, by which this happy

effect is to be produced. The prescription is no sooner made known,

however, than a number of persons interpose, and, without denying

the reality or danger of the disorder, assure the patient that the

prescription will be poison to his constitution, and forbid him,

under pain of certain death, to make use of it. Might not the

patient reasonably demand, before he ventured to follow this advice,

that the authors of it should at least agree among themselves on

some other remedy to be substituted? And if he found them differing

as much from one another as from his first counsellors, would he not

act prudently in trying the experiment unanimously recommended by

the latter, rather than be hearkening to those who could neither

deny the necessity of a speedy remedy, nor agree in proposing one?

Such a patient and in such a situation is America at this moment.

She has been sensible of her malady. She has obtained a regular

and unanimous advice from men of her own deliberate choice. And she

is warned by others against following this advice under pain of the

most fatal consequences. Do the monitors deny the reality of her

danger? No. Do they deny the necessity of some speedy and powerful

remedy? No. Are they agreed, are any two of them agreed, in their

objections to the remedy proposed, or in the proper one to be

substituted? Let them speak for themselves. This one tells us that

the proposed Constitution ought to be rejected, because it is not a

confederation of the States, but a government over individuals.

Another admits that it ought to be a government over individuals to

a certain extent, but by no means to the extent proposed. A third

does not object to the government over individuals, or to the extent

proposed, but to the want of a bill of rights. A fourth concurs in

the absolute necessity of a bill of rights, but contends that it

ought to be declaratory, not of the personal rights of individuals,

but of the rights reserved to the States in their political capacity.

A fifth is of opinion that a bill of rights of any sort would be

superfluous and misplaced, and that the plan would be

unexceptionable but for the fatal power of regulating the times and

places of election. An objector in a large State exclaims loudly

against the unreasonable equality of representation in the Senate.

An objector in a small State is equally loud against the dangerous

inequality in the House of Representatives. From this quarter, we

are alarmed with the amazing expense, from the number of persons who

are to administer the new government. From another quarter, and

sometimes from the same quarter, on another occasion, the cry is

that the Congress will be but a shadow of a representation, and that

the government would be far less objectionable if the number and the

expense were doubled. A patriot in a State that does not import or

export, discerns insuperable objections against the power of direct

taxation. The patriotic adversary in a State of great exports and

imports, is not less dissatisfied that the whole burden of taxes may

be thrown on consumption. This politician discovers in the

Constitution a direct and irresistible tendency to monarchy; that

is equally sure it will end in aristocracy. Another is puzzled to

say which of these shapes it will ultimately assume, but sees

clearly it must be one or other of them; whilst a fourth is not

wanting, who with no less confidence affirms that the Constitution

is so far from having a bias towards either of these dangers, that

the weight on that side will not be sufficient to keep it upright

and firm against its opposite propensities. With another class of

adversaries to the Constitution the language is that the

legislative, executive, and judiciary departments are intermixed in

such a manner as to contradict all the ideas of regular government

and all the requisite precautions in favor of liberty. Whilst this

objection circulates in vague and general expressions, there are but

a few who lend their sanction to it. Let each one come forward with

his particular explanation, and scarce any two are exactly agreed

upon the subject. In the eyes of one the junction of the Senate

with the President in the responsible function of appointing to

offices, instead of vesting this executive power in the Executive

alone, is the vicious part of the organization. To another, the

exclusion of the House of Representatives, whose numbers alone could

be a due security against corruption and partiality in the exercise

of such a power, is equally obnoxious. With another, the admission

of the President into any share of a power which ever must be a

dangerous engine in the hands of the executive magistrate, is an

unpardonable violation of the maxims of republican jealousy. No

part of the arrangement, according to some, is more inadmissible

than the trial of impeachments by the Senate, which is alternately a

member both of the legislative and executive departments, when this

power so evidently belonged to the judiciary department. ``We

concur fully,'' reply others, ``in the objection to this part of the

plan, but we can never agree that a reference of impeachments to the

judiciary authority would be an amendment of the error. Our

principal dislike to the organization arises from the extensive

powers already lodged in that department.'' Even among the zealous

patrons of a council of state the most irreconcilable variance is

discovered concerning the mode in which it ought to be constituted.

The demand of one gentleman is, that the council should consist of

a small number to be appointed by the most numerous branch of the

legislature. Another would prefer a larger number, and considers it

as a fundamental condition that the appointment should be made by

the President himself.

As it can give no umbrage to the writers against the plan of the

federal Constitution, let us suppose, that as they are the most

zealous, so they are also the most sagacious, of those who think the

late convention were unequal to the task assigned them, and that a

wiser and better plan might and ought to be substituted. Let us

further suppose that their country should concur, both in this

favorable opinion of their merits, and in their unfavorable opinion

of the convention; and should accordingly proceed to form them into

a second convention, with full powers, and for the express purpose

of revising and remoulding the work of the first. Were the

experiment to be seriously made, though it required some effort to

view it seriously even in fiction, I leave it to be decided by the

sample of opinions just exhibited, whether, with all their enmity to

their predecessors, they would, in any one point, depart so widely

from their example, as in the discord and ferment that would mark

their own deliberations; and whether the Constitution, now before

the public, would not stand as fair a chance for immortality, as

Lycurgus gave to that of Sparta, by making its change to depend on

his own return from exile and death, if it were to be immediately

adopted, and were to continue in force, not until a BETTER, but

until ANOTHER should be agreed upon by this new assembly of

lawgivers.

It is a matter both of wonder and regret, that those who raise

so many objections against the new Constitution should never call to

mind the defects of that which is to be exchanged for it. It is not

necessary that the former should be perfect; it is sufficient that

the latter is more imperfect. No man would refuse to give brass for

silver or gold, because the latter had some alloy in it. No man

would refuse to quit a shattered and tottering habitation for a firm

and commodious building, because the latter had not a porch to it,

or because some of the rooms might be a little larger or smaller, or

the ceilings a little higher or lower than his fancy would have

planned them. But waiving illustrations of this sort, is it not

manifest that most of the capital objections urged against the new

system lie with tenfold weight against the existing Confederation?

Is an indefinite power to raise money dangerous in the hands of the

federal government? The present Congress can make requisitions to

any amount they please, and the States are constitutionally bound to

furnish them; they can emit bills of credit as long as they will

pay for the paper; they can borrow, both abroad and at home, as

long as a shilling will be lent. Is an indefinite power to raise

troops dangerous? The Confederation gives to Congress that power

also; and they have already begun to make use of it. Is it

improper and unsafe to intermix the different powers of government

in the same body of men? Congress, a single body of men, are the

sole depositary of all the federal powers. Is it particularly

dangerous to give the keys of the treasury, and the command of the

army, into the same hands? The Confederation places them both in

the hands of Congress. Is a bill of rights essential to liberty?

The Confederation has no bill of rights. Is it an objection

against the new Constitution, that it empowers the Senate, with the

concurrence of the Executive, to make treaties which are to be the

laws of the land? The existing Congress, without any such control,

can make treaties which they themselves have declared, and most of

the States have recognized, to be the supreme law of the land. Is

the importation of slaves permitted by the new Constitution for

twenty years? By the old it is permitted forever.

I shall be told, that however dangerous this mixture of powers

may be in theory, it is rendered harmless by the dependence of

Congress on the State for the means of carrying them into practice;

that however large the mass of powers may be, it is in fact a

lifeless mass. Then, say I, in the first place, that the

Confederation is chargeable with the still greater folly of

declaring certain powers in the federal government to be absolutely

necessary, and at the same time rendering them absolutely nugatory;

and, in the next place, that if the Union is to continue, and no

better government be substituted, effective powers must either be

granted to, or assumed by, the existing Congress; in either of

which events, the contrast just stated will hold good. But this is

not all. Out of this lifeless mass has already grown an excrescent

power, which tends to realize all the dangers that can be

apprehended from a defective construction of the supreme government

of the Union. It is now no longer a point of speculation and hope,

that the Western territory is a mine of vast wealth to the United

States; and although it is not of such a nature as to extricate

them from their present distresses, or for some time to come, to

yield any regular supplies for the public expenses, yet must it

hereafter be able, under proper management, both to effect a gradual

discharge of the domestic debt, and to furnish, for a certain

period, liberal tributes to the federal treasury. A very large

proportion of this fund has been already surrendered by individual

States; and it may with reason be expected that the remaining

States will not persist in withholding similar proofs of their

equity and generosity. We may calculate, therefore, that a rich and

fertile country, of an area equal to the inhabited extent of the

United States, will soon become a national stock. Congress have

assumed the administration of this stock. They have begun to render

it productive. Congress have undertaken to do more: they have

proceeded to form new States, to erect temporary governments, to

appoint officers for them, and to prescribe the conditions on which

such States shall be admitted into the Confederacy. All this has

been done; and done without the least color of constitutional

authority. Yet no blame has been whispered; no alarm has been

sounded. A GREAT and INDEPENDENT fund of revenue is passing into

the hands of a SINGLE BODY of men, who can RAISE TROOPS to an

INDEFINITE NUMBER, and appropriate money to their support for an

INDEFINITE PERIOD OF TIME. And yet there are men, who have not only

been silent spectators of this prospect, but who are advocates for

the system which exhibits it; and, at the same time, urge against

the new system the objections which we have heard. Would they not

act with more consistency, in urging the establishment of the

latter, as no less necessary to guard the Union against the future

powers and resources of a body constructed like the existing

Congress, than to save it from the dangers threatened by the present

impotency of that Assembly?

I mean not, by any thing here said, to throw censure on the

measures which have been pursued by Congress. I am sensible they

could not have done otherwise. The public interest, the necessity

of the case, imposed upon them the task of overleaping their

constitutional limits. But is not the fact an alarming proof of the

danger resulting from a government which does not possess regular

powers commensurate to its objects? A dissolution or usurpation is

the dreadful dilemma to which it is continually exposed.

PUBLIUS.

 

FEDERALIST No. 39

The Conformity of the Plan to Republican Principles

For the Independent Journal.

MADISON

To the People of the State of New York:

THE last paper having concluded the observations which were

meant to introduce a candid survey of the plan of government

reported by the convention, we now proceed to the execution of that

part of our undertaking.

The first question that offers itself is, whether the general

form and aspect of the government be strictly republican. It is

evident that no other form would be reconcilable with the genius of

the people of America; with the fundamental principles of the

Revolution; or with that honorable determination which animates

every votary of freedom, to rest all our political experiments on

the capacity of mankind for self-government. If the plan of the

convention, therefore, be found to depart from the republican

character, its advocates must abandon it as no longer defensible.

What, then, are the distinctive characters of the republican

form? Were an answer to this question to be sought, not by

recurring to principles, but in the application of the term by

political writers, to the constitution of different States, no

satisfactory one would ever be found. Holland, in which no particle

of the supreme authority is derived from the people, has passed

almost universally under the denomination of a republic. The same

title has been bestowed on Venice, where absolute power over the

great body of the people is exercised, in the most absolute manner,

by a small body of hereditary nobles. Poland, which is a mixture of

aristocracy and of monarchy in their worst forms, has been dignified

with the same appellation. The government of England, which has one

republican branch only, combined with an hereditary aristocracy and

monarchy, has, with equal impropriety, been frequently placed on the

list of republics. These examples, which are nearly as dissimilar

to each other as to a genuine republic, show the extreme inaccuracy

with which the term has been used in political disquisitions.

If we resort for a criterion to the different principles on

which different forms of government are established, we may define a

republic to be, or at least may bestow that name on, a government

which derives all its powers directly or indirectly from the great

body of the people, and is administered by persons holding their

offices during pleasure, for a limited period, or during good

behavior. It is ESSENTIAL to such a government that it be derived

from the great body of the society, not from an inconsiderable

proportion, or a favored class of it; otherwise a handful of

tyrannical nobles, exercising their oppressions by a delegation of

their powers, might aspire to the rank of republicans, and claim for

their government the honorable title of republic. It is SUFFICIENT

for such a government that the persons administering it be

appointed, either directly or indirectly, by the people; and that

they hold their appointments by either of the tenures just

specified; otherwise every government in the United States, as well

as every other popular government that has been or can be well

organized or well executed, would be degraded from the republican

character. According to the constitution of every State in the

Union, some or other of the officers of government are appointed

indirectly only by the people. According to most of them, the chief

magistrate himself is so appointed. And according to one, this mode

of appointment is extended to one of the co-ordinate branches of the

legislature. According to all the constitutions, also, the tenure

of the highest offices is extended to a definite period, and in many

instances, both within the legislative and executive departments, to

a period of years. According to the provisions of most of the

constitutions, again, as well as according to the most respectable

and received opinions on the subject, the members of the judiciary

department are to retain their offices by the firm tenure of good

behavior.

On comparing the Constitution planned by the convention with the

standard here fixed, we perceive at once that it is, in the most

rigid sense, conformable to it. The House of Representatives, like

that of one branch at least of all the State legislatures, is

elected immediately by the great body of the people. The Senate,

like the present Congress, and the Senate of Maryland, derives its

appointment indirectly from the people. The President is indirectly

derived from the choice of the people, according to the example in

most of the States. Even the judges, with all other officers of the

Union, will, as in the several States, be the choice, though a

remote choice, of the people themselves, the duration of the

appointments is equally conformable to the republican standard, and

to the model of State constitutions The House of Representatives is

periodically elective, as in all the States; and for the period of

two years, as in the State of South Carolina. The Senate is

elective, for the period of six years; which is but one year more

than the period of the Senate of Maryland, and but two more than

that of the Senates of New York and Virginia. The President is to

continue in office for the period of four years; as in New York and

Delaware, the chief magistrate is elected for three years, and in

South Carolina for two years. In the other States the election is

annual. In several of the States, however, no constitutional

provision is made for the impeachment of the chief magistrate. And

in Delaware and Virginia he is not impeachable till out of office.

The President of the United States is impeachable at any time

during his continuance in office. The tenure by which the judges

are to hold their places, is, as it unquestionably ought to be, that

of good behavior. The tenure of the ministerial offices generally,

will be a subject of legal regulation, conformably to the reason of

the case and the example of the State constitutions.

Could any further proof be required of the republican complexion

of this system, the most decisive one might be found in its absolute

prohibition of titles of nobility, both under the federal and the

State governments; and in its express guaranty of the republican

form to each of the latter.

``But it was not sufficient,'' say the adversaries of the

proposed Constitution, ``for the convention to adhere to the

republican form. They ought, with equal care, to have preserved the

FEDERAL form, which regards the Union as a CONFEDERACY of sovereign

states; instead of which, they have framed a NATIONAL government,

which regards the Union as a CONSOLIDATION of the States.'' And it

is asked by what authority this bold and radical innovation was

undertaken? The handle which has been made of this objection

requires that it should be examined with some precision.

Without inquiring into the accuracy of the distinction on which

the objection is founded, it will be necessary to a just estimate of

its force, first, to ascertain the real character of the government

in question; secondly, to inquire how far the convention were

authorized to propose such a government; and thirdly, how far the

duty they owed to their country could supply any defect of regular

authority.

First. In order to ascertain the real character of the

government, it may be considered in relation to the foundation on

which it is to be established; to the sources from which its

ordinary powers are to be drawn; to the operation of those powers;

to the extent of them; and to the authority by which future

changes in the government are to be introduced.

On examining the first relation, it appears, on one hand, that

the Constitution is to be founded on the assent and ratification of

the people of America, given by deputies elected for the special

purpose; but, on the other, that this assent and ratification is to

be given by the people, not as individuals composing one entire

nation, but as composing the distinct and independent States to

which they respectively belong. It is to be the assent and

ratification of the several States, derived from the supreme

authority in each State, the authority of the people themselves.

The act, therefore, establishing the Constitution, will not be a

NATIONAL, but a FEDERAL act.

That it will be a federal and not a national act, as these terms

are understood by the objectors; the act of the people, as forming

so many independent States, not as forming one aggregate nation, is

obvious from this single consideration, that it is to result neither

from the decision of a MAJORITY of the people of the Union, nor from

that of a MAJORITY of the States. It must result from the UNANIMOUS

assent of the several States that are parties to it, differing no

otherwise from their ordinary assent than in its being expressed,

not by the legislative authority, but by that of the people

themselves. Were the people regarded in this transaction as forming

one nation, the will of the majority of the whole people of the

United States would bind the minority, in the same manner as the

majority in each State must bind the minority; and the will of the

majority must be determined either by a comparison of the individual

votes, or by considering the will of the majority of the States as

evidence of the will of a majority of the people of the United

States. Neither of these rules have been adopted. Each State, in

ratifying the Constitution, is considered as a sovereign body,

independent of all others, and only to be bound by its own voluntary

act. In this relation, then, the new Constitution will, if

established, be a FEDERAL, and not a NATIONAL constitution.

The next relation is, to the sources from which the ordinary

powers of government are to be derived. The House of

Representatives will derive its powers from the people of America;

and the people will be represented in the same proportion, and on

the same principle, as they are in the legislature of a particular

State. So far the government is NATIONAL, not FEDERAL. The Senate,

on the other hand, will derive its powers from the States, as

political and coequal societies; and these will be represented on

the principle of equality in the Senate, as they now are in the

existing Congress. So far the government is FEDERAL, not NATIONAL.

The executive power will be derived from a very compound source.

The immediate election of the President is to be made by the States

in their political characters. The votes allotted to them are in a

compound ratio, which considers them partly as distinct and coequal

societies, partly as unequal members of the same society. The

eventual election, again, is to be made by that branch of the

legislature which consists of the national representatives; but in

this particular act they are to be thrown into the form of

individual delegations, from so many distinct and coequal bodies

politic. From this aspect of the government it appears to be of a

mixed character, presenting at least as many FEDERAL as NATIONAL

features.

The difference between a federal and national government, as it

relates to the OPERATION OF THE GOVERNMENT, is supposed to consist

in this, that in the former the powers operate on the political

bodies composing the Confederacy, in their political capacities; in

the latter, on the individual citizens composing the nation, in

their individual capacities. On trying the Constitution by this

criterion, it falls under the NATIONAL, not the FEDERAL character;

though perhaps not so completely as has been understood. In

several cases, and particularly in the trial of controversies to

which States may be parties, they must be viewed and proceeded

against in their collective and political capacities only. So far

the national countenance of the government on this side seems to be

disfigured by a few federal features. But this blemish is perhaps

unavoidable in any plan; and the operation of the government on the

people, in their individual capacities, in its ordinary and most

essential proceedings, may, on the whole, designate it, in this

relation, a NATIONAL government.

But if the government be national with regard to the OPERATION

of its powers, it changes its aspect again when we contemplate it in

relation to the EXTENT of its powers. The idea of a national

government involves in it, not only an authority over the individual

citizens, but an indefinite supremacy over all persons and things,

so far as they are objects of lawful government. Among a people

consolidated into one nation, this supremacy is completely vested in

the national legislature. Among communities united for particular

purposes, it is vested partly in the general and partly in the

municipal legislatures. In the former case, all local authorities

are subordinate to the supreme; and may be controlled, directed, or

abolished by it at pleasure. In the latter, the local or municipal

authorities form distinct and independent portions of the supremacy,

no more subject, within their respective spheres, to the general

authority, than the general authority is subject to them, within its

own sphere. In this relation, then, the proposed government cannot

be deemed a NATIONAL one; since its jurisdiction extends to certain

enumerated objects only, and leaves to the several States a

residuary and inviolable sovereignty over all other objects. It is

true that in controversies relating to the boundary between the two

jurisdictions, the tribunal which is ultimately to decide, is to be

established under the general government. But this does not change

the principle of the case. The decision is to be impartially made,

according to the rules of the Constitution; and all the usual and

most effectual precautions are taken to secure this impartiality.

Some such tribunal is clearly essential to prevent an appeal to the

sword and a dissolution of the compact; and that it ought to be

established under the general rather than under the local

governments, or, to speak more properly, that it could be safely

established under the first alone, is a position not likely to be

combated.

If we try the Constitution by its last relation to the authority

by which amendments are to be made, we find it neither wholly

NATIONAL nor wholly FEDERAL. Were it wholly national, the supreme

and ultimate authority would reside in the MAJORITY of the people of

the Union; and this authority would be competent at all times, like

that of a majority of every national society, to alter or abolish

its established government. Were it wholly federal, on the other

hand, the concurrence of each State in the Union would be essential

to every alteration that would be binding on all. The mode provided

by the plan of the convention is not founded on either of these

principles. In requiring more than a majority, and principles. In

requiring more than a majority, and particularly in computing the

proportion by STATES, not by CITIZENS, it departs from the NATIONAL

and advances towards the FEDERAL character; in rendering the

concurrence of less than the whole number of States sufficient, it

loses again the FEDERAL and partakes of the NATIONAL character.

The proposed Constitution, therefore, is, in strictness, neither

a national nor a federal Constitution, but a composition of both.

In its foundation it is federal, not national; in the sources from

which the ordinary powers of the government are drawn, it is partly

federal and partly national; in the operation of these powers, it

is national, not federal; in the extent of them, again, it is

federal, not national; and, finally, in the authoritative mode of

introducing amendments, it is neither wholly federal nor wholly

national.

PUBLIUS.

 

FEDERALIST No. 40

The Powers of the Convention to Form a Mixed Government Examined

and Sustained

From the New York Packet.

Friday, January 18, 1788.

MADISON

To the People of the State of New York:

THE SECOND point to be examined is, whether the convention were

authorized to frame and propose this mixed Constitution. The

powers of the convention ought, in strictness, to be determined

by an inspection of the commissions given to the members by their

respective constituents. As all of these, however, had reference,

either to the recommendation from the meeting at Annapolis, in

September, 1786, or to that from Congress, in February, 1787, it

will be sufficient to recur to these particular acts. The act

from Annapolis recommends the ``appointment of commissioners to

take into consideration the situation of the United States; to

devise SUCH FURTHER PROVISIONS as shall appear to them necessary

to render the Constitution of the federal government ADEQUATE TO

THE EXIGENCIES OF THE UNION; and to report such an act for that

purpose, to the United States in Congress assembled, as when

agreed to by them, and afterwards confirmed by the legislature of

every State, will effectually provide for the same. ''The

recommendatory act of Congress is in the words

following:``WHEREAS, There is provision in the articles of

Confederation and perpetual Union, for making alterations

therein, by the assent of a Congress of the United States, and of

the legislatures of the several States; and whereas experience

hath evinced, that there are defects in the present

Confederation; as a mean to remedy which, several of the States,

and PARTICULARLY THE STATE OF NEW YORK, by express instructions

to their delegates in Congress, have suggested a convention for

the purposes expressed in the following resolution; and such

convention appearing to be the most probable mean of establishing

in these States A FIRM NATIONAL GOVERNMENT:``Resolved, That in

the opinion of Congress it is expedient, that on the second

Monday of May next a convention of delegates, who shall have been

appointed by the several States, be held at Philadelphia, for the

sole and express purpose OF REVISING THE ARTICLES OF

CONFEDERATION, and reporting to Congress and the several

legislatures such ALTERATIONS AND PROVISIONS THEREIN, as shall,

when agreed to in Congress, and confirmed by the States, render

the federal Constitution ADEQUATE TO THE EXIGENCIES OF GOVERNMENT

AND THE PRESERVATION OF THE UNION. ''From these two acts, it

appears, 1st, that the object of the convention was to establish,

in these States, A FIRM NATIONAL GOVERNMENT; 2d, that this

government was to be such as would be ADEQUATE TO THE EXIGENCIES

OF GOVERNMENT and THE PRESERVATION OF THE UNION; 3d, that these

purposes were to be effected by ALTERATIONS AND PROVISIONS IN THE

ARTICLES OF CONFEDERATION, as it is expressed in the act of

Congress, or by SUCH FURTHER PROVISIONS AS SHOULD APPEAR

NECESSARY, as it stands in the recommendatory act from Annapolis;

4th, that the alterations and provisions were to be reported to

Congress, and to the States, in order to be agreed to by the

former and confirmed by the latter. From a comparison and fair

construction of these several modes of expression, is to be

deduced the authority under which the convention acted. They were

to frame a NATIONAL GOVERNMENT, adequate to the EXIGENCIES OF

GOVERNMENT, and OF THE UNION; and to reduce the articles of

Confederation into such form as to accomplish these purposes.

There are two rules of construction, dictated by plain reason, as

well as founded on legal axioms. The one is, that every part of

the expression ought, if possible, to be allowed some meaning,

and be made to conspire to some common end. The other is, that

where the several parts cannot be made to coincide, the less

important should give way to the more important part; the means

should be sacrificed to the end, rather than the end to the

means. Suppose, then, that the expressions defining the

authority of the convention were irreconcilably at variance with

each other; that a NATIONAL and ADEQUATE GOVERNMENT could not

possibly, in the judgment of the convention, be affected by

ALTERATIONS and PROVISIONS in the ARTICLES OF CONFEDERATION;

which part of the definition ought to have been embraced, and

which rejected? Which was the more important, which the less

important part? Which the end; which the means? Let the most

scrupulous expositors of delegated powers; let the most

inveterate objectors against those exercised by the convention,

answer these questions. Let them declare, whether it was of most

importance to the happiness of the people of America, that the

articles of Confederation should be disregarded, and an adequate

government be provided, and the Union preserved; or that an

adequate government should be omitted, and the articles of

Confederation preserved. Let them declare, whether the

preservation of these articles was the end, for securing which a

reform of the government was to be introduced as the means; or

whether the establishment of a government, adequate to the

national happiness, was the end at which these articles

themselves originally aimed, and to which they ought, as

insufficient means, to have been sacrificed. But is it necessary

to suppose that these expressions are absolutely irreconcilable

to each other; that no ALTERATIONS or PROVISIONS in THE ARTICLES

OF THE CONFEDERATION could possibly mould them into a national

and adequate government; into such a government as has been

proposed by the convention? No stress, it is presumed, will, in

this case, be laid on the TITLE; a change of that could never be

deemed an exercise of ungranted power. ALTERATIONS in the body of

the instrument are expressly authorized. NEW PROVISIONS therein

are also expressly authorized. Here then is a power to change the

title; to insert new articles; to alter old ones. Must it of

necessity be admitted that this power is infringed, so long as a

part of the old articles remain? Those who maintain the

affirmative ought at least to mark the boundary between

authorized and usurped innovations; between that degree of change

which lies within the compass of ALTERATIONS AND FURTHER

PROVISIONS, and that which amounts to a TRANSMUTATION of the

government. Will it be said that the alterations ought not to

have touched the substance of the Confederation? The States

would never have appointed a convention with so much solemnity,

nor described its objects with so much latitude, if some

SUBSTANTIAL reform had not been in contemplation. Will it be said

that the FUNDAMENTAL PRINCIPLES of the Confederation were not

within the purview of the convention, and ought not to have been

varied? I ask, What are these principles? Do they require that,

in the establishment of the Constitution, the States should be

regarded as distinct and independent sovereigns? They are so

regarded by the Constitution proposed. Do they require that the

members of the government should derive their appointment from

the legislatures, not from the people of the States? One branch

of the new government is to be appointed by these legislatures;

and under the Confederation, the delegates to Congress MAY ALL

be appointed immediately by the people, and in two States1 are

actually so appointed. Do they require that the powers of the

government should act on the States, and not immediately on

individuals? In some instances, as has been shown, the powers of

the new government will act on the States in their collective

characters. In some instances, also, those of the existing

government act immediately on individuals. In cases of capture;

of piracy; of the post office; of coins, weights, and measures;

of trade with the Indians; of claims under grants of land by

different States; and, above all, in the case of trials by

courts-marshal in the army and navy, by which death may be

inflicted without the intervention of a jury, or even of a civil

magistrate; in all these cases the powers of the Confederation

operate immediately on the persons and interests of individual

citizens. Do these fundamental principles require, particularly,

that no tax should be levied without the intermediate agency of

the States? The Confederation itself authorizes a direct tax, to

a certain extent, on the post office. The power of coinage has

been so construed by Congress as to levy a tribute immediately

from that source also. But pretermitting these instances, was it

not an acknowledged object of the convention and the universal

expectation of the people, that the regulation of trade should be

submitted to the general government in such a form as would

render it an immediate source of general revenue? Had not

Congress repeatedly recommended this measure as not inconsistent

with the fundamental principles of the Confederation? Had not

every State but one; had not New York herself, so far complied

with the plan of Congress as to recognize the PRINCIPLE of the

innovation? Do these principles, in fine, require that the

powers of the general government should be limited, and that,

beyond this limit, the States should be left in possession of

their sovereignty and independence? We have seen that in the new

government, as in the old, the general powers are limited; and

that the States, in all unenumerated cases, are left in the

enjoyment of their sovereign and independent jurisdiction. The

truth is, that the great principles of the Constitution proposed

by the convention may be considered less as absolutely new, than

as the expansion of principles which are found in the articles of

Confederation. The misfortune under the latter system has been,

that these principles are so feeble and confined as to justify

all the charges of inefficiency which have been urged against it,

and to require a degree of enlargement which gives to the new

system the aspect of an entire transformation of the old. In one

particular it is admitted that the convention have departed from

the tenor of their commission. Instead of reporting a plan

requiring the confirmation OF THE LEGISLATURES OF ALL THE STATES,

they have reported a plan which is to be confirmed by the PEOPLE,

and may be carried into effect by NINE STATES ONLY. It is worthy

of remark that this objection, though the most plausible, has

been the least urged in the publications which have swarmed

against the convention. The forbearance can only have proceeded

from an irresistible conviction of the absurdity of subjecting

the fate of twelve States to the perverseness or corruption of a

thirteenth; from the example of inflexible opposition given by a

MAJORITY of one sixtieth of the people of America to a measure

approved and called for by the voice of twelve States, comprising

fifty-nine sixtieths of the people an example still fresh in the

memory and indignation of every citizen who has felt for the

wounded honor and prosperity of his country. As this objection,

therefore, has been in a manner waived by those who have

criticised the powers of the convention, I dismiss it without

further observation. The THIRD point to be inquired into is, how

far considerations of duty arising out of the case itself could

have supplied any defect of regular authority. In the preceding

inquiries the powers of the convention have been analyzed and

tried with the same rigor, and by the same rules, as if they had

been real and final powers for the establishment of a

Constitution for the United States. We have seen in what manner

they have borne the trial even on that supposition. It is time

now to recollect that the powers were merely advisory and

recommendatory; that they were so meant by the States, and so

understood by the convention; and that the latter have

accordingly planned and proposed a Constitution which is to be of

no more consequence than the paper on which it is written, unless

it be stamped with the approbation of those to whom it is

addressed. This reflection places the subject in a point of view

altogether different, and will enable us to judge with propriety

of the course taken by the convention. Let us view the ground on

which the convention stood. It may be collected from their

proceedings, that they were deeply and unanimously impressed with

the crisis, which had led their country almost with one voice to

make so singular and solemn an experiment for correcting the

errors of a system by which this crisis had been produced; that

they were no less deeply and unanimously convinced that such a

reform as they have proposed was absolutely necessary to effect

the purposes of their appointment. It could not be unknown to

them that the hopes and expectations of the great body of

citizens, throughout this great empire, were turned with the

keenest anxiety to the event of their deliberations. They had

every reason to believe that the contrary sentiments agitated the

minds and bosoms of every external and internal foe to the

liberty and prosperity of the United States. They had seen in the

origin and progress of the experiment, the alacrity with which

the PROPOSITION, made by a single State (Virginia), towards a

partial amendment of the Confederation, had been attended to and

promoted. They had seen the LIBERTY ASSUMED by a VERY FEW

deputies from a VERY FEW States, convened at Annapolis, of

recommending a great and critical object, wholly foreign to their

commission, not only justified by the public opinion, but

actually carried into effect by twelve out of the thirteen

States. They had seen, in a variety of instances, assumptions by

Congress, not only of recommendatory, but of operative, powers,

warranted, in the public estimation, by occasions and objects

infinitely less urgent than those by which their conduct was to

be governed. They must have reflected, that in all great changes

of established governments, forms ought to give way to substance;

that a rigid adherence in such cases to the former, would render

nominal and nugatory the transcendent and precious right of the

people to ``abolish or alter their governments as to them shall

seem most likely to effect their safety and happiness,''2 since

it is impossible for the people spontaneously and universally to

move in concert towards their object; and it is therefore

essential that such changes be instituted by some INFORMAL AND

UNAUTHORIZED PROPOSITIONS, made by some patriotic and respectable

citizen or number of citizens. They must have recollected that it

was by this irregular and assumed privilege of proposing to the

people plans for their safety and happiness, that the States

were first united against the danger with which they were

threatened by their ancient government; that committees and

congresses were formed for concentrating their efforts and

defending their rights; and that CONVENTIONS were ELECTED in THE

SEVERAL STATES for establishing the constitutions under which

they are now governed; nor could it have been forgotten that no

little ill-timed scruples, no zeal for adhering to ordinary

forms, were anywhere seen, except in those who wished to indulge,

under these masks, their secret enmity to the substance contended

for. They must have borne in mind, that as the plan to be framed

and proposed was to be submitted TO THE PEOPLE THEMSELVES, the

disapprobation of this supreme authority would destroy it

forever; its approbation blot out antecedent errors and

irregularities. It might even have occurred to them, that where a

disposition to cavil prevailed, their neglect to execute the

degree of power vested in them, and still more their

recommendation of any measure whatever, not warranted by their

commission, would not less excite animadversion, than a

recommendation at once of a measure fully commensurate to the

national exigencies. Had the convention, under all these

impressions, and in the midst of all these considerations,

instead of exercising a manly confidence in their country, by

whose confidence they had been so peculiarly distinguished, and

of pointing out a system capable, in their judgment, of securing

its happiness, taken the cold and sullen resolution of

disappointing its ardent hopes, of sacrificing substance to

forms, of committing the dearest interests of their country to

the uncertainties of delay and the hazard of events, let me ask

the man who can raise his mind to one elevated conception, who

can awaken in his bosom one patriotic emotion, what judgment

ought to have been pronounced by the impartial world, by the

friends of mankind, by every virtuous citizen, on the conduct and

character of this assembly? Or if there be a man whose

propensity to condemn is susceptible of no control, let me then

ask what sentence he has in reserve for the twelve States who

USURPED THE POWER of sending deputies to the convention, a body

utterly unknown to their constitutions; for Congress, who

recommended the appointment of this body, equally unknown to the

Confederation; and for the State of New York, in particular,

which first urged and then complied with this unauthorized

interposition? But that the objectors may be disarmed of every

pretext, it shall be granted for a moment that the convention

were neither authorized by their commission, nor justified by

circumstances in proposing a Constitution for their country: does

it follow that the Constitution ought, for that reason alone, to

be rejected? If, according to the noble precept, it be lawful to

accept good advice even from an enemy, shall we set the ignoble

example of refusing such advice even when it is offered by our

friends? The prudent inquiry, in all cases, ought surely to be,

not so much FROM WHOM the advice comes, as whether the advice be

GOOD. The sum of what has been here advanced and proved is, that

the charge against the convention of exceeding their powers,

except in one instance little urged by the objectors, has no

foundation to support it; that if they had exceeded their powers,

they were not only warranted, but required, as the confidential

servants of their country, by the circumstances in which they

were placed, to exercise the liberty which they assume; and that

finally, if they had violated both their powers and their

obligations, in proposing a Constitution, this ought nevertheless

to be embraced, if it be calculated to accomplish the views and

happiness of the people of America. How far this character is due

to the Constitution, is the subject under investigation. PUBLIUS.

Connecticut and Rhode Island. Declaration of Independence.

 

FEDERALIST No. 41

General View of the Powers Conferred by The Constitution

For the Independent Journal.

MADISON

To the People of the State of New York:

THE Constitution proposed by the convention may be considered

under two general points of view. The FIRST relates to the sum or

quantity of power which it vests in the government, including

the restraints imposed on the States. The SECOND, to the

particular structure of the government, and the distribution of

this power among its several branches. Under the FIRST view of

the subject, two important questions arise: 1. Whether any part

of the powers transferred to the general government be

unnecessary or improper? 2. Whether the entire mass of them be

dangerous to the portion of jurisdiction left in the several

States? Is the aggregate power of the general government greater

than ought to have been vested in it? This is the FIRST

question. It cannot have escaped those who have attended with

candor to the arguments employed against the extensive powers of

the government, that the authors of them have very little

considered how far these powers were necessary means of attaining

a necessary end. They have chosen rather to dwell on the

inconveniences which must be unavoidably blended with all

political advantages; and on the possible abuses which must be

incident to every power or trust, of which a beneficial use can

be made. This method of handling the subject cannot impose on the

good sense of the people of America. It may display the subtlety

of the writer; it may open a boundless field for rhetoric and

declamation; it may inflame the passions of the unthinking, and

may confirm the prejudices of the misthinking: but cool and

candid people will at once reflect, that the purest of human

blessings must have a portion of alloy in them; that the choice

must always be made, if not of the lesser evil, at least of the

GREATER, not the PERFECT, good; and that in every political

institution, a power to advance the public happiness involves a

discretion which may be misapplied and abused. They will see,

therefore, that in all cases where power is to be conferred, the

point first to be decided is, whether such a power be necessary

to the public good; as the next will be, in case of an

affirmative decision, to guard as effectually as possible

against a perversion of the power to the public detriment. That

we may form a correct judgment on this subject, it will be proper

to review the several powers conferred on the government of the

Union; and that this may be the more conveniently done they may

be reduced into different classes as they relate to the following

different objects: 1. Security against foreign danger; 2.

Regulation of the intercourse with foreign nations; 3.

Maintenance of harmony and proper intercourse among the States;

4. Certain miscellaneous objects of general utility; 5.

Restraint of the States from certain injurious acts; 6.

Provisions for giving due efficacy to all these powers. The

powers falling within the FIRST class are those of declaring war

and granting letters of marque; of providing armies and fleets;

of regulating and calling forth the militia; of levying and

borrowing money. Security against foreign danger is one of the

primitive objects of civil society. It is an avowed and essential

object of the American Union. The powers requisite for attaining

it must be effectually confided to the federal councils. Is the

power of declaring war necessary? No man will answer this

question in the negative. It would be superfluous, therefore, to

enter into a proof of the affirmative. The existing Confederation

establishes this power in the most ample form. Is the power of

raising armies and equipping fleets necessary? This is involved

in the foregoing power. It is involved in the power of

self-defense. But was it necessary to give an INDEFINITE POWER

of raising TROOPS, as well as providing fleets; and of

maintaining both in PEACE, as well as in war? The answer to these

questions has been too far anticipated in another place to admit

an extensive discussion of them in this place. The answer indeed

seems to be so obvious and conclusive as scarcely to justify such

a discussion in any place. With what color of propriety could the

force necessary for defense be limited by those who cannot limit

the force of offense? If a federal Constitution could chain the

ambition or set bounds to the exertions of all other nations,

then indeed might it prudently chain the discretion of its own

government, and set bounds to the exertions for its own safety.

How could a readiness for war in time of peace be safely

prohibited, unless we could prohibit, in like manner, the

preparations and establishments of every hostile nation? The

means of security can only be regulated by the means and the

danger of attack. They will, in fact, be ever determined by these

rules, and by no others. It is in vain to oppose constitutional

barriers to the impulse of self-preservation. It is worse than in

vain; because it plants in the Constitution itself necessary

usurpations of power, every precedent of which is a germ of

unnecessary and multiplied repetitions. If one nation maintains

constantly a disciplined army, ready for the service of ambition

or revenge, it obliges the most pacific nations who may be within

the reach of its enterprises to take corresponding precautions.

The fifteenth century was the unhappy epoch of military

establishments in the time of peace. They were introduced by

Charles VII. of France. All Europe has followed, or been forced

into, the example. Had the example not been followed by other

nations, all Europe must long ago have worn the chains of a

universal monarch. Were every nation except France now to disband

its peace establishments, the same event might follow. The

veteran legions of Rome were an overmatch for the undisciplined

valor of all other nations and rendered her the mistress of the

world. Not the less true is it, that the liberties of Rome

proved the final victim to her military triumphs; and that the

liberties of Europe, as far as they ever existed, have, with few

exceptions, been the price of her military establishments. A

standing force, therefore, is a dangerous, at the same time that

it may be a necessary, provision. On the smallest scale it has

its inconveniences. On an extensive scale its consequences may be

fatal. On any scale it is an object of laudable circumspection

and precaution. A wise nation will combine all these

considerations; and, whilst it does not rashly preclude itself

from any resource which may become essential to its safety, will

exert all its prudence in diminishing both the necessity and the

danger of resorting to one which may be inauspicious to its

liberties. The clearest marks of this prudence are stamped on

the proposed Constitution. The Union itself, which it cements and

secures, destroys every pretext for a military establishment

which could be dangerous. America united, with a handful of

troops, or without a single soldier, exhibits a more forbidding

posture to foreign ambition than America disunited, with a

hundred thousand veterans ready for combat. It was remarked, on a

former occasion, that the want of this pretext had saved the

liberties of one nation in Europe. Being rendered by her insular

situation and her maritime resources impregnable to the armies of

her neighbors, the rulers of Great Britain have never been able,

by real or artificial dangers, to cheat the public into an

extensive peace establishment. The distance of the United States

from the powerful nations of the world gives them the same happy

security. A dangerous establishment can never be necessary or

plausible, so long as they continue a united people. But let it

never, for a moment, be forgotten that they are indebted for this

advantage to the Union alone. The moment of its dissolution will

be the date of a new order of things. The fears of the weaker, or

the ambition of the stronger States, or Confederacies, will set

the same example in the New, as Charles VII. did in the Old

World. The example will be followed here from the same motives

which produced universal imitation there. Instead of deriving

from our situation the precious advantage which Great Britain has

derived from hers, the face of America will be but a copy of that

of the continent of Europe. It will present liberty everywhere

crushed between standing armies and perpetual taxes. The fortunes

of disunited America will be even more disastrous than those of

Europe. The sources of evil in the latter are confined to her own

limits. No superior powers of another quarter of the globe

intrigue among her rival nations, inflame their mutual

animosities, and render them the instruments of foreign ambition,

jealousy, and revenge. In America the miseries springing from her

internal jealousies, contentions, and wars, would form a part

only of her lot. A plentiful addition of evils would have their

source in that relation in which Europe stands to this quarter of

the earth, and which no other quarter of the earth bears to

Europe. This picture of the consequences of disunion cannot be

too highly colored, or too often exhibited. Every man who loves

peace, every man who loves his country, every man who loves

liberty, ought to have it ever before his eyes, that he may

cherish in his heart a due attachment to the Union of America,

and be able to set a due value on the means of preserving it.

Next to the effectual establishment of the Union, the best

possible precaution against danger from standing armies is a

limitation of the term for which revenue may be appropriated to

their support. This precaution the Constitution has prudently

added. I will not repeat here the observations which I flatter

myself have placed this subject in a just and satisfactory

light. But it may not be improper to take notice of an argument

against this part of the Constitution, which has been drawn from

the policy and practice of Great Britain. It is said that the

continuance of an army in that kingdom requires an annual vote of

the legislature; whereas the American Constitution has lengthened

this critical period to two years. This is the form in which the

comparison is usually stated to the public: but is it a just

form? Is it a fair comparison? Does the British Constitution

restrain the parliamentary discretion to one year? Does the

American impose on the Congress appropriations for two years? On

the contrary, it cannot be unknown to the authors of the fallacy

themselves, that the British Constitution fixes no limit whatever

to the discretion of the legislature, and that the American ties

down the legislature to two years, as the longest admissible

term. Had the argument from the British example been truly

stated, it would have stood thus: The term for which supplies

may be appropriated to the army establishment, though unlimited

by the British Constitution, has nevertheless, in practice, been

limited by parliamentary discretion to a single year. Now, if in

Great Britain, where the House of Commons is elected for seven

years; where so great a proportion of the members are elected by

so small a proportion of the people; where the electors are so

corrupted by the representatives, and the representatives so

corrupted by the Crown, the representative body can possess a

power to make appropriations to the army for an indefinite term,

without desiring, or without daring, to extend the term beyond a

single year, ought not suspicion herself to blush, in pretending

that the representatives of the United States, elected FREELY by

the WHOLE BODY of the people, every SECOND YEAR, cannot be safely

intrusted with the discretion over such appropriations, expressly

limited to the short period of TWO YEARS? A bad cause seldom

fails to betray itself. Of this truth, the management of the

opposition to the federal government is an unvaried

exemplification. But among all the blunders which have been

committed, none is more striking than the attempt to enlist on

that side the prudent jealousy entertained by the people, of

standing armies. The attempt has awakened fully the public

attention to that important subject; and has led to

investigations which must terminate in a thorough and universal

conviction, not only that the constitution has provided the most

effectual guards against danger from that quarter, but that

nothing short of a Constitution fully adequate to the national

defense and the preservation of the Union, can save America from

as many standing armies as it may be split into States or

Confederacies, and from such a progressive augmentation, of these

establishments in each, as will render them as burdensome to the

properties and ominous to the liberties of the people, as any

establishment that can become necessary, under a united and

efficient government, must be tolerable to the former and safe to

the latter. The palpable necessity of the power to provide and

maintain a navy has protected that part of the Constitution

against a spirit of censure, which has spared few other parts. It

must, indeed, be numbered among the greatest blessings of

America, that as her Union will be the only source of her

maritime strength, so this will be a principal source of her

security against danger from abroad. In this respect our

situation bears another likeness to the insular advantage of

Great Britain. The batteries most capable of repelling foreign

enterprises on our safety, are happily such as can never be

turned by a perfidious government against our liberties. The

inhabitants of the Atlantic frontier are all of them deeply

interested in this provision for naval protection, and if they

have hitherto been suffered to sleep quietly in their beds; if

their property has remained safe against the predatory spirit of

licentious adventurers; if their maritime towns have not yet

been compelled to ransom themselves from the terrors of a

conflagration, by yielding to the exactions of daring and sudden

invaders, these instances of good fortune are not to be ascribed

to the capacity of the existing government for the protection of

those from whom it claims allegiance, but to causes that are

fugitive and fallacious. If we except perhaps Virginia and

Maryland, which are peculiarly vulnerable on their eastern

frontiers, no part of the Union ought to feel more anxiety on

this subject than New York. Her seacoast is extensive. A very

important district of the State is an island. The State itself is

penetrated by a large navigable river for more than fifty

leagues. The great emporium of its commerce, the great reservoir

of its wealth, lies every moment at the mercy of events, and may

almost be regarded as a hostage for ignominious compliances with

the dictates of a foreign enemy, or even with the rapacious

demands of pirates and barbarians. Should a war be the result of

the precarious situation of European affairs, and all the unruly

passions attending it be let loose on the ocean, our escape from

insults and depredations, not only on that element, but every

part of the other bordering on it, will be truly miraculous. In

the present condition of America, the States more immediately

exposed to these calamities have nothing to hope from the phantom

of a general government which now exists; and if their single

resources were equal to the task of fortifying themselves against

the danger, the object to be protected would be almost consumed

by the means of protecting them. The power of regulating and

calling forth the militia has been already sufficiently

vindicated and explained. The power of levying and borrowing

money, being the sinew of that which is to be exerted in the

national defense, is properly thrown into the same class with

it. This power, also, has been examined already with much

attention, and has, I trust, been clearly shown to be necessary,

both in the extent and form given to it by the Constitution. I

will address one additional reflection only to those who contend

that the power ought to have been restrained to external

taxation by which they mean, taxes on articles imported from

other countries. It cannot be doubted that this will always be a

valuable source of revenue; that for a considerable time it must

be a principal source; that at this moment it is an essential

one. But we may form very mistaken ideas on this subject, if we

do not call to mind in our calculations, that the extent of

revenue drawn from foreign commerce must vary with the

variations, both in the extent and the kind of imports; and that

these variations do not correspond with the progress of

population, which must be the general measure of the public

wants. As long as agriculture continues the sole field of labor,

the importation of manufactures must increase as the consumers

multiply. As soon as domestic manufactures are begun by the hands

not called for by agriculture, the imported manufactures will

decrease as the numbers of people increase. In a more remote

stage, the imports may consist in a considerable part of raw

materials, which will be wrought into articles for exportation,

and will, therefore, require rather the encouragement of

bounties, than to be loaded with discouraging duties. A system of

government, meant for duration, ought to contemplate these

revolutions, and be able to accommodate itself to them. Some,

who have not denied the necessity of the power of taxation, have

grounded a very fierce attack against the Constitution, on the

language in which it is defined. It has been urged and echoed,

that the power ``to lay and collect taxes, duties, imposts, and

excises, to pay the debts, and provide for the common defense and

general welfare of the United States,'' amounts to an unlimited

commission to exercise every power which may be alleged to be

necessary for the common defense or general welfare. No stronger

proof could be given of the distress under which these writers

labor for objections, than their stooping to such a

misconstruction. Had no other enumeration or definition of the

powers of the Congress been found in the Constitution, than the

general expressions just cited, the authors of the objection

might have had some color for it; though it would have been

difficult to find a reason for so awkward a form of describing an

authority to legislate in all possible cases. A power to destroy

the freedom of the press, the trial by jury, or even to regulate

the course of descents, or the forms of conveyances, must be very

singularly expressed by the terms ``to raise money for the

general welfare. ''But what color can the objection have, when a

specification of the objects alluded to by these general terms

immediately follows, and is not even separated by a longer pause

than a semicolon? If the different parts of the same instrument

ought to be so expounded, as to give meaning to every part which

will bear it, shall one part of the same sentence be excluded

altogether from a share in the meaning; and shall the more

doubtful and indefinite terms be retained in their full extent,

and the clear and precise expressions be denied any signification

whatsoever? For what purpose could the enumeration of particular

powers be inserted, if these and all others were meant to be

included in the preceding general power? Nothing is more natural

nor common than first to use a general phrase, and then to

explain and qualify it by a recital of particulars. But the idea

of an enumeration of particulars which neither explain nor

qualify the general meaning, and can have no other effect than to

confound and mislead, is an absurdity, which, as we are reduced

to the dilemma of charging either on the authors of the objection

or on the authors of the Constitution, we must take the liberty

of supposing, had not its origin with the latter. The objection

here is the more extraordinary, as it appears that the language

used by the convention is a copy from the articles of

Confederation. The objects of the Union among the States, as

described in article third, are ``their common defense, security

of their liberties, and mutual and general welfare. '' The terms

of article eighth are still more identical: ``All charges of war

and all other expenses that shall be incurred for the common

defense or general welfare, and allowed by the United States in

Congress, shall be defrayed out of a common treasury,'' etc. A

similar language again occurs in article ninth. Construe either

of these articles by the rules which would justify the

construction put on the new Constitution, and they vest in the

existing Congress a power to legislate in all cases whatsoever.

But what would have been thought of that assembly, if, attaching

themselves to these general expressions, and disregarding the

specifications which ascertain and limit their import, they had

exercised an unlimited power of providing for the common defense

and general welfare? I appeal to the objectors themselves,

whether they would in that case have employed the same reasoning

in justification of Congress as they now make use of against the

convention. How difficult it is for error to escape its own

condemnation! PUBLIUS.

 

FEDERALIST No. 42

The Powers Conferred by the Constitution Further Considered

From the New York Packet. Tuesday, January 22, 1788.

MADISON

To the People of the State of New York:

THE SECOND class of powers, lodged in the general government,

consists of those which regulate the intercourse with foreign

nations, to wit: to make treaties; to send and receive

ambassadors, other public ministers, and consuls; to define and

punish piracies and felonies committed on the high seas, and

offenses against the law of nations; to regulate foreign

commerce, including a power to prohibit, after the year 1808, the

importation of slaves, and to lay an intermediate duty of ten

dollars per head, as a discouragement to such importations. This

class of powers forms an obvious and essential branch of the

federal administration. If we are to be one nation in any

respect, it clearly ought to be in respect to other nations. The

powers to make treaties and to send and receive ambassadors,

speak their own propriety. Both of them are comprised in the

articles of Confederation, with this difference only, that the

former is disembarrassed, by the plan of the convention, of an

exception, under which treaties might be substantially frustrated

by regulations of the States; and that a power of appointing and

receiving ``other public ministers and consuls,'' is expressly

and very properly added to the former provision concerning

ambassadors. The term ambassador, if taken strictly, as seems to

be required by the second of the articles of Confederation,

comprehends the highest grade only of public ministers, and

excludes the grades which the United States will be most likely

to prefer, where foreign embassies may be necessary. And under no

latitude of construction will the term comprehend consuls. Yet it

has been found expedient, and has been the practice of Congress,

to employ the inferior grades of public ministers, and to send

and receive consuls. It is true, that where treaties of commerce

stipulate for the mutual appointment of consuls, whose functions

are connected with commerce, the admission of foreign consuls may

fall within the power of making commercial treaties; and that

where no such treaties exist, the mission of American consuls

into foreign countries may PERHAPS be covered under the

authority, given by the ninth article of the Confederation, to

appoint all such civil officers as may be necessary for managing

the general affairs of the United States. But the admission of

consuls into the United States, where no previous treaty has

stipulated it, seems to have been nowhere provided for. A supply

of the omission is one of the lesser instances in which the

convention have improved on the model before them. But the most

minute provisions become important when they tend to obviate the

necessity or the pretext for gradual and unobserved usurpations

of power. A list of the cases in which Congress have been

betrayed, or forced by the defects of the Confederation, into

violations of their chartered authorities, would not a little

surprise those who have paid no attention to the subject; and

would be no inconsiderable argument in favor of the new

Constitution, which seems to have provided no less studiously for

the lesser, than the more obvious and striking defects of the

old. The power to define and punish piracies and felonies

committed on the high seas, and offenses against the law of

nations, belongs with equal propriety to the general government,

and is a still greater improvement on the articles of

Confederation. These articles contain no provision for the case

of offenses against the law of nations; and consequently leave

it in the power of any indiscreet member to embroil the

Confederacy with foreign nations. The provision of the federal

articles on the subject of piracies and felonies extends no

further than to the establishment of courts for the trial of

these offenses. The definition of piracies might, perhaps,

without inconveniency, be left to the law of nations; though a

legislative definition of them is found in most municipal codes.

A definition of felonies on the high seas is evidently

requisite. Felony is a term of loose signification, even in the

common law of England; and of various import in the statute law

of that kingdom. But neither the common nor the statute law of

that, or of any other nation, ought to be a standard for the

proceedings of this, unless previously made its own by

legislative adoption. The meaning of the term, as defined in the

codes of the several States, would be as impracticable as the

former would be a dishonorable and illegitimate guide. It is not

precisely the same in any two of the States; and varies in each

with every revision of its criminal laws. For the sake of

certainty and uniformity, therefore, the power of defining

felonies in this case was in every respect necessary and proper.

The regulation of foreign commerce, having fallen within several

views which have been taken of this subject, has been too fully

discussed to need additional proofs here of its being properly

submitted to the federal administration. It were doubtless to be

wished, that the power of prohibiting the importation of slaves

had not been postponed until the year 1808, or rather that it had

been suffered to have immediate operation. But it is not

difficult to account, either for this restriction on the general

government, or for the manner in which the whole clause is

expressed. It ought to be considered as a great point gained in

favor of humanity, that a period of twenty years may terminate

forever, within these States, a traffic which has so long and so

loudly upbraided the barbarism of modern policy; that within that

period, it will receive a considerable discouragement from the

federal government, and may be totally abolished, by a

concurrence of the few States which continue the unnatural

traffic, in the prohibitory example which has been given by so

great a majority of the Union. Happy would it be for the

unfortunate Africans, if an equal prospect lay before them of

being redeemed from the oppressions of their European brethren!

Attempts have been made to pervert this clause into an objection

against the Constitution, by representing it on one side as a

criminal toleration of an illicit practice, and on another as

calculated to prevent voluntary and beneficial emigrations from

Europe to America. I mention these misconstructions, not with a

view to give them an answer, for they deserve none, but as

specimens of the manner and spirit in which some have thought fit

to conduct their opposition to the proposed government. The

powers included in the THIRD class are those which provide for

the harmony and proper intercourse among the States. Under this

head might be included the particular restraints imposed on the

authority of the States, and certain powers of the judicial

department; but the former are reserved for a distinct class, and

the latter will be particularly examined when we arrive at the

structure and organization of the government. I shall confine

myself to a cursory review of the remaining powers comprehended

under this third description, to wit: to regulate commerce among

the several States and the Indian tribes; to coin money, regulate

the value thereof, and of foreign coin; to provide for the

punishment of counterfeiting the current coin and secureties of

the United States; to fix the standard of weights and measures;

to establish a uniform rule of naturalization, and uniform laws

of bankruptcy, to prescribe the manner in which the public acts,

records, and judicial proceedings of each State shall be proved,

and the effect they shall have in other States; and to establish

post offices and post roads. The defect of power in the existing

Confederacy to regulate the commerce between its several members,

is in the number of those which have been clearly pointed out by

experience. To the proofs and remarks which former papers have

brought into view on this subject, it may be added that without

this supplemental provision, the great and essential power of

regulating foreign commerce would have been incomplete and

ineffectual. A very material object of this power was the relief

of the States which import and export through other States, from

the improper contributions levied on them by the latter. Were

these at liberty to regulate the trade between State and State,

it must be foreseen that ways would be found out to load the

articles of import and export, during the passage through their

jurisdiction, with duties which would fall on the makers of the

latter and the consumers of the former. We may be assured by past

experience, that such a practice would be introduced by future

contrivances; and both by that and a common knowledge of human

affairs, that it would nourish unceasing animosities, and not

improbably terminate in serious interruptions of the public

tranquillity. To those who do not view the question through the

medium of passion or of interest, the desire of the commercial

States to collect, in any form, an indirect revenue from their

uncommercial neighbors, must appear not less impolitic than it is

unfair; since it would stimulate the injured party, by resentment

as well as interest, to resort to less convenient channels for

their foreign trade. But the mild voice of reason, pleading the

cause of an enlarged and permanent interest, is but too often

drowned, before public bodies as well as individuals, by the

clamors of an impatient avidity for immediate and immoderate

gain. The necessity of a superintending authority over the

reciprocal trade of confederated States, has been illustrated by

other examples as well as our own. In Switzerland, where the

Union is so very slight, each canton is obliged to allow to

merchandises a passage through its jurisdiction into other

cantons, without an augmentation of the tolls. In Germany it is a

law of the empire, that the princes and states shall not lay

tolls or customs on bridges, rivers, or passages, without the

consent of the emperor and the diet; though it appears from a

quotation in an antecedent paper, that the practice in this, as

in many other instances in that confederacy, has not followed the

law, and has produced there the mischiefs which have been

foreseen here. Among the restraints imposed by the Union of the

Netherlands on its members, one is, that they shall not establish

imposts disadvantageous to their neighbors, without the general

permission. The regulation of commerce with the Indian tribes is

very properly unfettered from two limitations in the articles of

Confederation, which render the provision obscure and

contradictory. The power is there restrained to Indians, not

members of any of the States, and is not to violate or infringe

the legislative right of any State within its own limits. What

description of Indians are to be deemed members of a State, is

not yet settled, and has been a question of frequent perplexity

and contention in the federal councils. And how the trade with

Indians, though not members of a State, yet residing within its

legislative jurisdiction, can be regulated by an external

authority, without so far intruding on the internal rights of

legislation, is absolutely incomprehensible. This is not the only

case in which the articles of Confederation have inconsiderately

endeavored to accomplish impossibilities; to reconcile a partial

sovereignty in the Union, with complete sovereignty in the

States; to subvert a mathematical axiom, by taking away a part,

and letting the whole remain. All that need be remarked on the

power to coin money, regulate the value thereof, and of foreign

coin, is, that by providing for this last case, the Constitution

has supplied a material omission in the articles of

Confederation. The authority of the existing Congress is

restrained to the regulation of coin STRUCK by their own

authority, or that of the respective States. It must be seen at

once that the proposed uniformity in the VALUE of the current

coin might be destroyed by subjecting that of foreign coin to the

different regulations of the different States. The punishment of

counterfeiting the public securities, as well as the current

coin, is submitted of course to that authority which is to secure

the value of both. The regulation of weights and measures is

transferred from the articles of Confederation, and is founded on

like considerations with the preceding power of regulating coin.

The dissimilarity in the rules of naturalization has long been

remarked as a fault in our system, and as laying a foundation for

intricate and delicate questions. In the fourth article of the

Confederation, it is declared ``that the FREE INHABITANTS of each

of these States, paupers, vagabonds, and fugitives from justice,

excepted, shall be entitled to all privileges and immunities of

FREE CITIZENS in the several States; and THE PEOPLE of each State

shall, in every other, enjoy all the privileges of trade and

commerce,'' etc. There is a confusion of language here, which is

remarkable. Why the terms FREE INHABITANTS are used in one part

of the article, FREE CITIZENS in another, and PEOPLE in another;

or what was meant by superadding to ``all privileges and

immunities of free citizens,'' ``all the privileges of trade and

commerce,''

cannot easily be determined. It seems to be a construction

scarcely avoidable, however, that those who come under the

denomination of FREE INHABITANTS of a State, although not

citizens of such State, are entitled, in every other State, to

all the privileges of FREE CITIZENS of the latter; that is, to

greater privileges than they may be entitled to in their own

State: so that it may be in the power of a particular State, or

rather every State is laid under a necessity, not only to confer

the rights of citizenship in other States upon any whom it may

admit to such rights within itself, but upon any whom it may

allow to become inhabitants within its jurisdiction. But were an

exposition of the term ``inhabitants'' to be admitted which

would confine the stipulated privileges to citizens alone, the

difficulty is diminished only, not removed. The very improper

power would still be retained by each State, of naturalizing

aliens in every other State. In one State, residence for a short

term confirms all the rights of citizenship: in another,

qualifications of greater importance are required. An alien,

therefore, legally incapacitated for certain rights in the

latter, may, by previous residence only in the former, elude his

incapacity; and thus the law of one State be preposterously

rendered paramount to the law of another, within the jurisdiction

of the other. We owe it to mere casualty, that very serious

embarrassments on this subject have been hitherto escaped. By the

laws of several States, certain descriptions of aliens, who had

rendered themselves obnoxious, were laid under interdicts

inconsistent not only with the rights of citizenship but with the

privilege of residence. What would have been the consequence, if

such persons, by residence or otherwise, had acquired the

character of citizens under the laws of another State, and then

asserted their rights as such, both to residence and citizenship,

within the State proscribing them? Whatever the legal

consequences might have been, other consequences would probably

have resulted, of too serious a nature not to be provided

against. The new Constitution has accordingly, with great

propriety, made provision against them, and all others proceeding

from the defect of the Confederation on this head, by authorizing

the general government to establish a uniform rule of

naturalization throughout the United States. The power of

establishing uniform laws of bankruptcy is so intimately

connected with the regulation of commerce, and will prevent so

many frauds where the parties or their property may lie or be

removed into different States, that the expediency of it seems

not likely to be drawn into question. The power of prescribing

by general laws, the manner in which the public acts, records and

judicial proceedings of each State shall be proved, and the

effect they shall have in other States, is an evident and

valuable improvement on the clause relating to this subject in

the articles of Confederation. The meaning of the latter is

extremely indeterminate, and can be of little importance under

any interpretation which it will bear. The power here established

may be rendered a very convenient instrument of justice, and be

particularly beneficial on the borders of contiguous States,

where the effects liable to justice may be suddenly and secretly

translated, in any stage of the process, within a foreign

jurisdiction. The power of establishing post roads must, in

every view, be a harmless power, and may, perhaps, by judicious

management, become productive of great public conveniency.

Nothing which tends to facilitate the intercourse between the

States can be deemed unworthy of the public care. PUBLIUS.

FEDERALIST No. 43

The Same Subject Continued(The Powers Conferred by the

Constitution Further Considered)

For the Independent Journal.

MADISON

To the People of the State of New York:

THE FOURTH class comprises the following miscellaneous powers:1.

A power ``to promote the progress of science and useful arts, by

securing, for a limited time, to authors and inventors, the

exclusive right to their respective writings and discoveries.

''The utility of this power will scarcely be questioned. The

copyright of authors has been solemnly adjudged, in Great

Britain, to be a right of common law. The right to useful

inventions seems with equal reason to belong to the inventors.

The public good fully coincides in both cases with the claims of

individuals. The States cannot separately make effectual

provisions for either of the cases, and most of them have

anticipated the decision of this point, by laws passed at the

instance of Congress. 2. ``To exercise exclusive legislation, in

all cases whatsoever, over such district (not exceeding ten miles

square) as may, by cession of particular States and the

acceptance of Congress, become the seat of the government of the

United States; and to exercise like authority over all places

purchased by the consent of the legislatures of the States in

which the same shall be, for the erection of forts, magazines,

arsenals, dockyards, and other needful buildings. ''The

indispensable necessity of complete authority at the seat of

government, carries its own evidence with it. It is a power

exercised by every legislature of the Union, I might say of the

world, by virtue of its general supremacy. Without it, not only

the public authority might be insulted and its proceedings

interrupted with impunity; but a dependence of the members of the

general government on the State comprehending the seat of the

government, for protection in the exercise of their duty, might

bring on the national councils an imputation of awe or influence,

equally dishonorable to the government and dissatisfactory to the

other members of the Confederacy. This consideration has the more

weight, as the gradual accumulation of public improvements at the

stationary residence of the government would be both too great a

public pledge to be left in the hands of a single State, and

would create so many obstacles to a removal of the government, as

still further to abridge its necessary independence. The extent

of this federal district is sufficiently circumscribed to satisfy

every jealousy of an opposite nature. And as it is to be

appropriated to this use with the consent of the State ceding it;

as the State will no doubt provide in the compact for the rights

and the consent of the citizens inhabiting it; as the inhabitants

will find sufficient inducements of interest to become willing

parties to the cession; as they will have had their voice in the

election of the government which is to exercise authority over

them; as a municipal legislature for local purposes, derived from

their own suffrages, will of course be allowed them; and as the

authority of the legislature of the State, and of the inhabitants

of the ceded part of it, to concur in the cession, will be

derived from the whole people of the State in their adoption of

the Constitution, every imaginable objection seems to be

obviated. The necessity of a like authority over forts,

magazines, etc. , established by the general government, is not

less evident. The public money expended on such places, and the

public property deposited in them, requires that they should be

exempt from the authority of the particular State. Nor would it

be proper for the places on which the security of the entire

Union may depend, to be in any degree dependent on a particular

member of it. All objections and scruples are here also obviated,

by requiring the concurrence of the States concerned, in every

such establishment. 3. ``To declare the punishment of treason,

but no attainder of treason shall work corruption of blood, or

forfeiture, except during the life of the person attained. ''As

treason may be committed against the United States, the authority

of the United States ought to be enabled to punish it. But as

new-fangled and artificial treasons have been the great engines

by which violent factions, the natural offspring of free

government, have usually wreaked their alternate malignity on

each other, the convention have, with great judgment, opposed a

barrier to this peculiar danger, by inserting a constitutional

definition of the crime, fixing the proof necessary for

conviction of it, and restraining the Congress, even in punishing

it, from extending the consequences of guilt beyond the person of

its author. 4. ``To admit new States into the Union; but no new

State shall be formed or erected within the jurisdiction of any

other State; nor any State be formed by the junction of two or

more States, or parts of States, without the consent of the

legislatures of the States concerned, as well as of the Congress.

''In the articles of Confederation, no provision is found on this

important subject. Canada was to be admitted of right, on her

joining in the measures of the United States; and the other

COLONIES, by which were evidently meant the other British

colonies, at the discretion of nine States. The eventual

establishment of NEW STATES seems to have been overlooked by the

compilers of that instrument. We have seen the inconvenience of

this omission, and the assumption of power into which Congress

have been led by it. With great propriety, therefore, has the new

system supplied the defect. The general precaution, that no new

States shall be formed, without the concurrence of the federal

authority, and that of the States concerned, is consonant to the

principles which ought to govern such transactions. The

particular precaution against the erection of new States, by the

partition of a State without its consent, quiets the jealousy of

the larger States; as that of the smaller is quieted by a like

precaution, against a junction of States without their consent.

5. ``To dispose of and make all needful rules and regulations

respecting the territory or other property belonging to the

United States, with a proviso, that nothing in the Constitution

shall be so construed as to prejudice any claims of the United

States, or of any particular State. ''This is a power of very

great importance, and required by considerations similar to those

which show the propriety of the former. The proviso annexed is

proper in itself, and was probably rendered absolutely necessary

by jealousies and questions concerning the Western territory

sufficiently known to the public. 6. ``To guarantee to every

State in the Union a republican form of government; to protect

each of them against invasion; and on application of the

legislature, or of the executive (when the legislature cannot be

convened), against domestic violence. ''In a confederacy founded

on republican principles, and composed of republican members, the

superintending government ought clearly to possess authority to

defend the system against aristocratic or monarchial

innovations. The more intimate the nature of such a union may be,

the greater interest have the members in the political

institutions of each other; and the greater right to insist that

the forms of government under which the compact was entered into

should be SUBSTANTIALLY maintained. But a right implies a remedy;

and where else could the remedy be deposited, than where it is

deposited by the Constitution? Governments of dissimilar

principles and forms have been found less adapted to a federal

coalition of any sort, than those of a kindred nature. ``As the

confederate republic of Germany,'' says Montesquieu, ``consists

of free cities and petty states, subject to different princes,

experience shows us that it is more imperfect than that of

Holland and Switzerland. '' ``Greece was undone,'' he adds, ``as

soon as the king of Macedon obtained a seat among the

Amphictyons. '' In the latter case, no doubt, the

disproportionate force, as well as the monarchical form, of the

new confederate, had its share of influence on the events. It may

possibly be asked, what need there could be of such a

precaution, and whether it may not become a pretext for

alterations in the State governments, without the concurrence of

the States themselves. These questions admit of ready answers. If

the interposition of the general government should not be

needed, the provision for such an event will be a harmless

superfluity only in the Constitution. But who can say what

experiments may be produced by the caprice of particular States,

by the ambition of enterprising leaders, or by the intrigues and

influence of foreign powers? To the second question it may be

answered, that if the general government should interpose by

virtue of this constitutional authority, it will be, of course,

bound to pursue the authority. But the authority extends no

further than to a GUARANTY of a republican form of government,

which supposes a pre-existing government of the form which is to

be guaranteed. As long, therefore, as the existing republican

forms are continued by the States, they are guaranteed by the

federal Constitution. Whenever the States may choose to

substitute other republican forms, they have a right to do so,

and to claim the federal guaranty for the latter. The only

restriction imposed on them is, that they shall not exchange

republican for antirepublican Constitutions; a restriction

which, it is presumed, will hardly be considered as a grievance.

A protection against invasion is due from every society to the

parts composing it. The latitude of the expression here used

seems to secure each State, not only against foreign hostility,

but against ambitious or vindictive enterprises of its more

powerful neighbors. The history, both of ancient and modern

confederacies, proves that the weaker members of the union ought

not to be insensible to the policy of this article. Protection

against domestic violence is added with equal propriety. It has

been remarked, that even among the Swiss cantons, which, properly

speaking, are not under one government, provision is made for

this object; and the history of that league informs us that

mutual aid is frequently claimed and afforded; and as well by

the most democratic, as the other cantons. A recent and

well-known event among ourselves has warned us to be prepared for

emergencies of a like nature. At first view, it might seem not

to square with the republican theory, to suppose, either that a

majority have not the right, or that a minority will have the

force, to subvert a government; and consequently, that the

federal interposition can never be required, but when it would be

improper. But theoretic reasoning, in this as in most other

cases, must be qualified by the lessons of practice. Why may not

illicit combinations, for purposes of violence, be formed as

well by a majority of a State, especially a small State as by a

majority of a county, or a district of the same State; and if

the authority of the State ought, in the latter case, to protect

the local magistracy, ought not the federal authority, in the

former, to support the State authority? Besides, there are

certain parts of the State constitutions which are so interwoven

with the federal Constitution, that a violent blow cannot be

given to the one without communicating the wound to the other.

Insurrections in a State will rarely induce a federal

interposition, unless the number concerned in them bear some

proportion to the friends of government. It will be much better

that the violence in such cases should be repressed by the

superintending power, than that the majority should be left to

maintain their cause by a bloody and obstinate contest. The

existence of a right to interpose, will generally prevent the

necessity of exerting it. Is it true that force and right are

necessarily on the same side in republican governments? May not

the minor party possess such a superiority of pecuniary

resources, of military talents and experience, or of secret

succors from foreign powers, as will render it superior also in

an appeal to the sword? May not a more compact and advantageous

position turn the scale on the same side, against a superior

number so situated as to be less capable of a prompt and

collected exertion of its strength? Nothing can be more

chimerical than to imagine that in a trial of actual force,

victory may be calculated by the rules which prevail in a census

of the inhabitants, or which determine the event of an election!

May it not happen, in fine, that the minority of CITIZENS may

become a majority of PERSONS, by the accession of alien

residents, of a casual concourse of adventurers, or of those whom

the constitution of the State has not admitted to the rights of

suffrage? I take no notice of an unhappy species of population

abounding in some of the States, who, during the calm of regular

government, are sunk below the level of men; but who, in the

tempestuous scenes of civil violence, may emerge into the human

character, and give a superiority of strength to any party with

which they may associate themselves. In cases where it may be

doubtful on which side justice lies, what better umpires could

be desired by two violent factions, flying to arms, and tearing a

State to pieces, than the representatives of confederate States,

not heated by the local flame? To the impartiality of judges,

they would unite the affection of friends. Happy would it be if

such a remedy for its infirmities could be enjoyed by all free

governments; if a project equally effectual could be established

for the universal peace of mankind! Should it be asked, what is

to be the redress for an insurrection pervading all the States,

and comprising a superiority of the entire force, though not a

constitutional right? the answer must be, that such a case, as

it would be without the compass of human remedies, so it is

fortunately not within the compass of human probability; and

that it is a sufficient recommendation of the federal

Constitution, that it diminishes the risk of a calamity for which

no possible constitution can provide a cure. Among the

advantages of a confederate republic enumerated by Montesquieu,

an important one is, ``that should a popular insurrection happen

in one of the States, the others are able to quell it. Should

abuses creep into one part, they are reformed by those that

remain sound. ''7. ``To consider all debts contracted, and

engagements entered into, before the adoption of this

Constitution, as being no less valid against the United States,

under this Constitution, than under the Confederation. ''This

can only be considered as a declaratory proposition; and may have

been inserted, among other reasons, for the satisfaction of the

foreign creditors of the United States, who cannot be strangers

to the pretended doctrine, that a change in the political form of

civil society has the magical effect of dissolving its moral

obligations. Among the lesser criticisms which have been

exercised on the Constitution, it has been remarked that the

validity of engagements ought to have been asserted in favor of

the United States, as well as against them; and in the spirit

which usually characterizes little critics, the omission has been

transformed and magnified into a plot against the national

rights. The authors of this discovery may be told, what few

others need to be informed of, that as engagements are in their

nature reciprocal, an assertion of their validity on one side,

necessarily involves a validity on the other side; and that as

the article is merely declaratory, the establishment of the

principle in one case is sufficient for every case. They may be

further told, that every constitution must limit its precautions

to dangers that are not altogether imaginary; and that no real

danger can exist that the government would DARE, with, or even

without, this constitutional declaration before it, to remit the

debts justly due to the public, on the pretext here condemned. 8.

``To provide for amendments to be ratified by three fourths of

the States under two exceptions only. ''That useful alterations

will be suggested by experience, could not but be foreseen. It

was requisite, therefore, that a mode for introducing them should

be provided. The mode preferred by the convention seems to be

stamped with every mark of propriety. It guards equally against

that extreme facility, which would render the Constitution too

mutable; and that extreme difficulty, which might perpetuate its

discovered faults. It, moreover, equally enables the general and

the State governments to originate the amendment of errors, as

they may be pointed out by the experience on one side, or on the

other. The exception in favor of the equality of suffrage in the

Senate, was probably meant as a palladium to the residuary

sovereignty of the States, implied and secured by that principle

of representation in one branch of the legislature; and was

probably insisted on by the States particularly attached to that

equality. The other exception must have been admitted on the same

considerations which produced the privilege defended by it. 9.

``The ratification of the conventions of nine States shall be

sufficient for the establishment of this Constitution between the

States, ratifying the same. ''This article speaks for itself.

The express authority of the people alone could give due validity

to the Constitution. To have required the unanimous ratification

of the thirteen States, would have subjected the essential

interests of the whole to the caprice or corruption of a single

member. It would have marked a want of foresight in the

convention, which our own experience would have rendered

inexcusable. Two questions of a very delicate nature present

themselves on this occasion: 1. On what principle the

Confederation, which stands in the solemn form of a compact among

the States, can be superseded without the unanimous consent of

the parties to it? 2. What relation is to subsist between the

nine or more States ratifying the Constitution, and the remaining

few who do not become parties to it? The first question is

answered at once by recurring to the absolute necessity of the

case; to the great principle of self-preservation; to the

transcendent law of nature and of nature's God, which declares

that the safety and happiness of society are the objects at which

all political institutions aim, and to which all such

institutions must be sacrificed. PERHAPS, also, an answer may be

found without searching beyond the principles of the compact

itself. It has been heretofore noted among the defects of the

Confederation, that in many of the States it had received no

higher sanction than a mere legislative ratification. The

principle of reciprocality seems to require that its obligation

on the other States should be reduced to the same standard. A

compact between independent sovereigns, founded on ordinary acts

of legislative authority, can pretend to no higher validity than

a league or treaty between the parties. It is an established

doctrine on the subject of treaties, that all the articles are

mutually conditions of each other; that a breach of any one

article is a breach of the whole treaty; and that a breach,

committed by either of the parties, absolves the others, and

authorizes them, if they please, to pronounce the compact

violated and void. Should it unhappily be necessary to appeal to

these delicate truths for a justification for dispensing with

the consent of particular States to a dissolution of the federal

pact, will not the complaining parties find it a difficult task

to answer the MULTIPLIED and IMPORTANT infractions with which

they may be confronted? The time has been when it was incumbent

on us all to veil the ideas which this paragraph exhibits. The

scene is now changed, and with it the part which the same motives

dictate. The second question is not less delicate; and the

flattering prospect of its being merely hypothetical forbids an

overcurious discussion of it. It is one of those cases which must

be left to provide for itself. In general, it may be observed,

that although no political relation can subsist between the

assenting and dissenting States, yet the moral relations will

remain uncancelled. The claims of justice, both on one side and

on the other, will be in force, and must be fulfilled; the

rights of humanity must in all cases be duly and mutually

respected; whilst considerations of a common interest, and,

above all, the remembrance of the endearing scenes which are

past, and the anticipation of a speedy triumph over the obstacles

to reunion, will, it is hoped, not urge in vain MODERATION on one

side, and PRUDENCE on the other. PUBLIUS.

 

FEDERALIST No. 44

Restrictions on the Authority of the Several States

From the New York Packet. Friday, January 25, 1788.

MADISON

To the People of the State of New York:

A FIFTH class of provisions in favor of the federal authority

consists of the following restrictions on the authority of the

several States:1. ``No State shall enter into any treaty,

alliance, or confederation; grant letters of marque and reprisal;

coin money; emit bills of credit; make any thing but gold and

silver a legal tender in payment of debts; pass any bill of

attainder, ex-post-facto law, or law impairing the obligation of

contracts; or grant any title of nobility. ''The prohibition

against treaties, alliances, and confederations makes a part of

the existing articles of Union; and for reasons which need no

explanation, is copied into the new Constitution. The prohibition

of letters of marque is another part of the old system, but is

somewhat extended in the new. According to the former, letters of

marque could be granted by the States after a declaration of war;

according to the latter, these licenses must be obtained, as well

during war as previous to its declaration, from the government of

the United States. This alteration is fully justified by the

advantage of uniformity in all points which relate to foreign

powers; and of immediate responsibility to the nation in all

those for whose conduct the nation itself is to be responsible.

The right of coining money, which is here taken from the States,

was left in their hands by the Confederation, as a concurrent

right with that of Congress, under an exception in favor of the

exclusive right of Congress to regulate the alloy and value. In

this instance, also, the new provision is an improvement on the

old. Whilst the alloy and value depended on the general

authority, a right of coinage in the particular States could have

no other effect than to multiply expensive mints and diversify

the forms and weights of the circulating pieces. The latter

inconveniency defeats one purpose for which the power was

originally submitted to the federal head; and as far as the

former might prevent an inconvenient remittance of gold and

silver to the central mint for recoinage, the end can be as well

attained by local mints established under the general authority.

The extension of the prohibition to bills of credit must give

pleasure to every citizen, in proportion to his love of justice

and his knowledge of the true springs of public prosperity. The

loss which America has sustained since the peace, from the

pestilent effects of paper money on the necessary confidence

between man and man, on the necessary confidence in the public

councils, on the industry and morals of the people, and on the

character of republican government, constitutes an enormous debt

against the States chargeable with this unadvised measure, which

must long remain unsatisfied; or rather an accumulation of guilt,

which can be expiated no otherwise than by a voluntary sacrifice

on the altar of justice, of the power which has been the

instrument of it. In addition to these persuasive

considerations, it may be observed, that the same reasons which

show the necessity of denying to the States the power of

regulating coin, prove with equal force that they ought not to be

at liberty to substitute a paper medium in the place of coin. Had

every State a right to regulate the value of its coin, there

might be as many different currencies as States, and thus the

intercourse among them would be impeded; retrospective

alterations in its value might be made, and thus the citizens of

other States be injured, and animosities be kindled among the

States themselves. The subjects of foreign powers might suffer

from the same cause, and hence the Union be discredited and

embroiled by the indiscretion of a single member. No one of these

mischiefs is less incident to a power in the States to emit paper

money, than to coin gold or silver. The power to make any thing

but gold and silver a tender in payment of debts, is withdrawn

from the States, on the same principle with that of issuing a

paper currency. Bills of attainder, ex-post-facto laws, and laws

impairing the obligation of contracts, are contrary to the first

principles of the social compact, and to every principle of sound

legislation. The two former are expressly prohibited by the

declarations prefixed to some of the State constitutions, and all

of them are prohibited by the spirit and scope of these

fundamental charters. Our own experience has taught us,

nevertheless, that additional fences against these dangers ought

not to be omitted. Very properly, therefore, have the convention

added this constitutional bulwark in favor of personal security

and private rights; and I am much deceived if they have not, in

so doing, as faithfully consulted the genuine sentiments as the

undoubted interests of their constituents. The sober people of

America are weary of the fluctuating policy which has directed

the public councils. They have seen with regret and indignation

that sudden changes and legislative interferences, in cases

affecting personal rights, become jobs in the hands of

enterprising and influential speculators, and snares to the

more-industrious and lessinformed part of the community. They

have seen, too, that one legislative interference is but the

first link of a long chain of repetitions, every subsequent

interference being naturally produced by the effects of the

preceding. They very rightly infer, therefore, that some thorough

reform is wanting, which will banish speculations on public

measures, inspire a general prudence and industry, and give a

regular course to the business of society. The prohibition with

respect to titles of nobility is copied from the articles of

Confederation and needs no comment. 2. ``No State shall, without

the consent of the Congress, lay any imposts or duties on imports

or exports, except what may be absolutely necessary for executing

its inspection laws, and the net produce of all duties and

imposts laid by any State on imports or exports, shall be for the

use of the treasury of the United States; and all such laws shall

be subject to the revision and control of the Congress. No State

shall, without the consent of Congress, lay any duty on tonnage,

keep troops or ships of war in time of peace, enter into any

agreement or compact with another State, or with a foreign power,

or engage in war unless actually invaded, or in such imminent

danger as will not admit of delay. ''The restraint on the power

of the States over imports and exports is enforced by all the

arguments which prove the necessity of submitting the regulation

of trade to the federal councils. It is needless, therefore, to

remark further on this head, than that the manner in which the

restraint is qualified seems well calculated at once to secure to

the States a reasonable discretion in providing for the

conveniency of their imports and exports, and to the United

States a reasonable check against the abuse of this discretion.

The remaining particulars of this clause fall within reasonings

which are either so obvious, or have been so fully developed,

that they may be passed over without remark. The SIXTH and last

class consists of the several powers and provisions by which

efficacy is given to all the rest. 1. Of these the first is, the

``power to make all laws which shall be necessary and proper for

carrying into execution the foregoing powers, and all other

powers vested by this Constitution in the government of the

United States, or in any department or officer thereof. ''Few

parts of the Constitution have been assailed with more

intemperance than this; yet on a fair investigation of it, no

part can appear more completely invulnerable. Without the

SUBSTANCE of this power, the whole Constitution would be a dead

letter. Those who object to the article, therefore, as a part of

the Constitution, can only mean that the FORM of the provision is

improper. But have they considered whether a better form could

have been substituted? There are four other possible methods

which the Constitution might have taken on this subject. They

might have copied the second article of the existing

Confederation, which would have prohibited the exercise of any

power not EXPRESSLY delegated; they might have attempted a

positive enumeration of the powers comprehended under the general

terms ``necessary and proper''; they might have attempted a

negative enumeration of them, by specifying the powers excepted

from the general definition; they might have been altogether

silent on the subject, leaving these necessary and proper powers

to construction and inference. Had the convention taken the

first method of adopting the second article of Confederation, it

is evident that the new Congress would be continually exposed, as

their predecessors have been, to the alternative of construing

the term ``EXPRESSLY'' with so much rigor, as to disarm the

government of all real authority whatever, or with so much

latitude as to destroy altogether the force of the restriction.

It would be easy to show, if it were necessary, that no important

power, delegated by the articles of Confederation, has been or

can be executed by Congress, without recurring more or less to

the doctrine of CONSTRUCTION or IMPLICATION. As the powers

delegated under the new system are more extensive, the government

which is to administer it would find itself still more distressed

with the alternative of betraying the public interests by doing

nothing, or of violating the Constitution by exercising powers

indispensably necessary and proper, but, at the same time, not

EXPRESSLY granted. Had the convention attempted a positive

enumeration of the powers necessary and proper for carrying their

other powers into effect, the attempt would have involved a

complete digest of laws on every subject to which the

Constitution relates; accommodated too, not only to the existing

state of things, but to all the possible changes which futurity

may produce; for in every new application of a general power, the

PARTICULAR POWERS, which are the means of attaining the OBJECT of

the general power, must always necessarily vary with that object,

and be often properly varied whilst the object remains the same.

Had they attempted to enumerate the particular powers or means

not necessary or proper for carrying the general powers into

execution, the task would have been no less chimerical; and would

have been liable to this further objection, that every defect in

the enumeration would have been equivalent to a positive grant of

authority. If, to avoid this consequence, they had attempted a

partial enumeration of the exceptions, and described the residue

by the general terms, NOT NECESSARY OR PROPER, it must have

happened that the enumeration would comprehend a few of the

excepted powers only; that these would be such as would be least

likely to be assumed or tolerated, because the enumeration would

of course select such as would be least necessary or proper; and

that the unnecessary and improper powers included in the

residuum, would be less forcibly excepted, than if no partial

enumeration had been made. Had the Constitution been silent on

this head, there can be no doubt that all the particular powers

requisite as means of executing the general powers would have

resulted to the government, by unavoidable implication. No axiom

is more clearly established in law, or in reason, than that

wherever the end is required, the means are authorized; wherever

a general power to do a thing is given, every particular power

necessary for doing it is included. Had this last method,

therefore, been pursued by the convention, every objection now

urged against their plan would remain in all its plausibility;

and the real inconveniency would be incurred of not removing a

pretext which may be seized on critical occasions for drawing

into question the essential powers of the Union. If it be asked

what is to be the consequence, in case the Congress shall

misconstrue this part of the Constitution, and exercise powers

not warranted by its true meaning, I answer, the same as if they

should misconstrue or enlarge any other power vested in them; as

if the general power had been reduced to particulars, and any one

of these were to be violated; the same, in short, as if the State

legislatures should violate the irrespective constitutional

authorities. In the first instance, the success of the usurpation

will depend on the executive and judiciary departments, which are

to expound and give effect to the legislative acts; and in the

last resort a remedy must be obtained from the people who can, by

the election of more faithful representatives, annul the acts of

the usurpers. The truth is, that this ultimate redress may be

more confided in against unconstitutional acts of the federal

than of the State legislatures, for this plain reason, that as

every such act of the former will be an invasion of the rights of

the latter, these will be ever ready to mark the innovation, to

sound the alarm to the people, and to exert their local influence

in effecting a change of federal representatives. There being no

such intermediate body between the State legislatures and the

people interested in watching the conduct of the former,

violations of the State constitutions are more likely to remain

unnoticed and unredressed. 2. ``This Constitution and the laws

of the United States which shall be made in pursuance thereof,

and all treaties made, or which shall be made, under the

authority of the United States, shall be the supreme law of the

land, and the judges in every State shall be bound thereby, any

thing in the constitution or laws of any State to the contrary

notwithstanding. ''The indiscreet zeal of the adversaries to the

Constitution has betrayed them into an attack on this part of it

also, without which it would have been evidently and radically

defective. To be fully sensible of this, we need only suppose for

a moment that the supremacy of the State constitutions had been

left complete by a saving clause in their favor. In the first

place, as these constitutions invest the State legislatures with

absolute sovereignty, in all cases not excepted by the existing

articles of Confederation, all the authorities contained in the

proposed Constitution, so far as they exceed those enumerated in

the Confederation, would have been annulled, and the new Congress

would have been reduced to the same impotent condition with their

predecessors. In the next place, as the constitutions of some of

the States do not even expressly and fully recognize the existing

powers of the Confederacy, an express saving of the supremacy of

the former would, in such States, have brought into question

every power contained in the proposed Constitution. In the third

place, as the constitutions of the States differ much from each

other, it might happen that a treaty or national law, of great

and equal importance to the States, would interfere with some and

not with other constitutions, and would consequently be valid in

some of the States, at the same time that it would have no effect

in others. In fine, the world would have seen, for the first

time, a system of government founded on an inversion of the

fundamental principles of all government; it would have seen the

authority of the whole society every where subordinate to the

authority of the parts; it would have seen a monster, in which

the head was under the direction of the members. 3. ``The

Senators and Representatives, and the members of the several

State legislatures, and all executive and judicial officers, both

of the United States and the several States, shall be bound by

oath or affirmation to support this Constitution. ''It has been

asked why it was thought necessary, that the State magistracy

should be bound to support the federal Constitution, and

unnecessary that a like oath should be imposed on the officers of

the United States, in favor of the State constitutions. Several

reasons might be assigned for the distinction. I content myself

with one, which is obvious and conclusive. The members of the

federal government will have no agency in carrying the State

constitutions into effect. The members and officers of the State

governments, on the contrary, will have an essential agency in

giving effect to the federal Constitution. The election of the

President and Senate will depend, in all cases, on the

legislatures of the several States. And the election of the House

of Representatives will equally depend on the same authority in

the first instance; and will, probably, forever be conducted by

the officers, and according to the laws, of the States. 4. Among

the provisions for giving efficacy to the federal powers might be

added those which belong to the executive and judiciary

departments: but as these are reserved for particular examination

in another place, I pass them over in this. We have now

reviewed, in detail, all the articles composing the sum or

quantity of power delegated by the proposed Constitution to the

federal government, and are brought to this undeniable

conclusion, that no part of the power is unnecessary or improper

for accomplishing the necessary objects of the Union. The

question, therefore, whether this amount of power shall be

granted or not, resolves itself into another question, whether or

not a government commensurate to the exigencies of the Union

shall be established; or, in other words, whether the Union

itself shall be preserved. PUBLIUS.

 

FEDERALIST No. 45

The Alleged Danger From the Powers of the Union to the State

Governments Considered

For the Independent Fournal.

MADISON

To the People of the State of New York:

HAVING shown that no one of the powers transferred to the federal

government is unnecessary or improper, the next question to be

considered is, whether the whole mass of them will be dangerous

to the portion of authority left in the several States. The

adversaries to the plan of the convention, instead of considering

in the first place what degree of power was absolutely necessary

for the purposes of the federal government, have exhausted

themselves in a secondary inquiry into the possible consequences

of the proposed degree of power to the governments of the

particular States. But if the Union, as has been shown, be

essential to the security of the people of America against

foreign danger; if it be essential to their security against

contentions and wars among the different States; if it be

essential to guard them against those violent and oppressive

factions which embitter the blessings of liberty, and against

those military establishments which must gradually poison its

very fountain; if, in a word, the Union be essential to the

happiness of the people of America, is it not preposterous, to

urge as an objection to a government, without which the objects

of the Union cannot be attained, that such a government may

derogate from the importance of the governments of the individual

States? Was, then, the American Revolution effected, was the

American Confederacy formed, was the precious blood of thousands

spilt, and the hard-earned substance of millions lavished, not

that the people of America should enjoy peace, liberty, and

safety, but that the government of the individual States, that

particular municipal establishments, might enjoy a certain extent

of power, and be arrayed with certain dignities and attributes of

sovereignty? We have heard of the impious doctrine in the Old

World, that the people were made for kings, not kings for the

people. Is the same doctrine to be revived in the New, in another

shape that the solid happiness of the people is to be sacrificed

to the views of political institutions of a different form? It is

too early for politicians to presume on our forgetting that the

public good, the real welfare of the great body of the people, is

the supreme object to be pursued; and that no form of government

whatever has any other value than as it may be fitted for the

attainment of this object. Were the plan of the convention

adverse to the public happiness, my voice would be, Reject the

plan. Were the Union itself inconsistent with the public

happiness, it would be, Abolish the Union. In like manner, as far

as the sovereignty of the States cannot be reconciled to the

happiness of the people, the voice of every good citizen must be,

Let the former be sacrificed to the latter. How far the sacrifice

is necessary, has been shown. How far the unsacrificed residue

will be endangered, is the question before us. Several important

considerations have been touched in the course of these papers,

which discountenance the supposition that the operation of the

federal government will by degrees prove fatal to the State

governments. The more I revolve the subject, the more fully I am

persuaded that the balance is much more likely to be disturbed by

the preponderancy of the last than of the first scale. We have

seen, in all the examples of ancient and modern confederacies,

the strongest tendency continually betraying itself in the

members, to despoil the general government of its authorities,

with a very ineffectual capacity in the latter to defend itself

against the encroachments. Although, in most of these examples,

the system has been so dissimilar from that under consideration

as greatly to weaken any inference concerning the latter from the

fate of the former, yet, as the States will retain, under the

proposed Constitution, a very extensive portion of active

sovereignty, the inference ought not to be wholly disregarded. In

the Achaean league it is probable that the federal head had a

degree and species of power, which gave it a considerable

likeness to the government framed by the convention. The Lycian

Confederacy, as far as its principles and form are transmitted,

must have borne a still greater analogy to it. Yet history does

not inform us that either of them ever degenerated, or tended to

degenerate, into one consolidated government. On the contrary, we

know that the ruin of one of them proceeded from the incapacity

of the federal authority to prevent the dissensions, and finally

the disunion, of the subordinate authorities. These cases are the

more worthy of our attention, as the external causes by which the

component parts were pressed together were much more numerous and

powerful than in our case; and consequently less powerful

ligaments within would be sufficient to bind the members to the

head, and to each other. In the feudal system, we have seen a

similar propensity exemplified. Notwithstanding the want of

proper sympathy in every instance between the local sovereigns

and the people, and the sympathy in some instances between the

general sovereign and the latter, it usually happened that the

local sovereigns prevailed in the rivalship for encroachments.

Had no external dangers enforced internal harmony and

subordination, and particularly, had the local sovereigns

possessed the affections of the people, the great kingdoms in

Europe would at this time consist of as many independent princes

as there were formerly feudatory barons. The State government

will have the advantage of the Federal government, whether we

compare them in respect to the immediate dependence of the one on

the other; to the weight of personal influence which each side

will possess; to the powers respectively vested in them; to the

predilection and probable support of the people; to the

disposition and faculty of resisting and frustrating the measures

of each other. The State governments may be regarded as

constituent and essential parts of the federal government; whilst

the latter is nowise essential to the operation or organization

of the former. Without the intervention of the State

legislatures, the President of the United States cannot be

elected at all. They must in all cases have a great share in his

appointment, and will, perhaps, in most cases, of themselves

determine it. The Senate will be elected absolutely and

exclusively by the State legislatures. Even the House of

Representatives, though drawn immediately from the people, will

be chosen very much under the influence of that class of men,

whose influence over the people obtains for themselves an

election into the State legislatures. Thus, each of the principal

branches of the federal government will owe its existence more or

less to the favor of the State governments, and must consequently

feel a dependence, which is much more likely to beget a

disposition too obsequious than too overbearing towards them. On

the other side, the component parts of the State governments will

in no instance be indebted for their appointment to the direct

agency of the federal government, and very little, if at all, to

the local influence of its members. The number of individuals

employed under the Constitution of the United States will be much

smaller than the number employed under the particular States.

There will consequently be less of personal influence on the side

of the former than of the latter. The members of the legislative,

executive, and judiciary departments of thirteen and more States,

the justices of peace, officers of militia, ministerial officers

of justice, with all the county, corporation, and town officers,

for three millions and more of people, intermixed, and having

particular acquaintance with every class and circle of people,

must exceed, beyond all proportion, both in number and influence,

those of every description who will be employed in the

administration of the federal system. Compare the members of the

three great departments of the thirteen States, excluding from

the judiciary department the justices of peace, with the members

of the corresponding departments of the single government of the

Union; compare the militia officers of three millions of people

with the military and marine officers of any establishment which

is within the compass of probability, or, I may add, of

possibility, and in this view alone, we may pronounce the

advantage of the States to be decisive. If the federal government

is to have collectors of revenue, the State governments will have

theirs also. And as those of the former will be principally on

the seacoast, and not very numerous, whilst those of the latter

will be spread over the face of the country, and will be very

numerous, the advantage in this view also lies on the same side.

It is true, that the Confederacy is to possess, and may exercise,

the power of collecting internal as well as external taxes

throughout the States; but it is probable that this power will

not be resorted to, except for supplemental purposes of revenue;

that an option will then be given to the States to supply their

quotas by previous collections of their own; and that the

eventual collection, under the immediate authority of the Union,

will generally be made by the officers, and according to the

rules, appointed by the several States. Indeed it is extremely

probable, that in other instances, particularly in the

organization of the judicial power, the officers of the States

will be clothed with the correspondent authority of the Union.

Should it happen, however, that separate collectors of internal

revenue should be appointed under the federal government, the

influence of the whole number would not bear a comparison with

that of the multitude of State officers in the opposite scale.

Within every district to which a federal collector would be

allotted, there would not be less than thirty or forty, or even

more, officers of different descriptions, and many of them

persons of character and weight, whose influence would lie on the

side of the State. The powers delegated by the proposed

Constitution to the federal government are few and defined. Those

which are to remain in the State governments are numerous and

indefinite. The former will be exercised principally on external

objects, as war, peace, negotiation, and foreign commerce; with

which last the power of taxation will, for the most part, be

connected. The powers reserved to the several States will extend

to all the objects which, in the ordinary course of affairs,

concern the lives, liberties, and properties of the people, and

the internal order, improvement, and prosperity of the State. The

operations of the federal government will be most extensive and

important in times of war and danger; those of the State

governments, in times of peace and security. As the former

periods will probably bear a small proportion to the latter, the

State governments will here enjoy another advantage over the

federal government. The more adequate, indeed, the federal powers

may be rendered to the national defense, the less frequent will

be those scenes of danger which might favor their ascendancy over

the governments of the particular States. If the new Constitution

be examined with accuracy and candor, it will be found that the

change which it proposes consists much less in the addition of

NEW POWERS to the Union, than in the invigoration of its ORIGINAL

POWERS. The regulation of commerce, it is true, is a new power;

but that seems to be an addition which few oppose, and from which

no apprehensions are entertained. The powers relating to war and

peace, armies and fleets, treaties and finance, with the other

more considerable powers, are all vested in the existing Congress

by the articles of Confederation. The proposed change does not

enlarge these powers; it only substitutes a more effectual mode

of administering them. The change relating to taxation may be

regarded as the most important; and yet the present Congress have

as complete authority to REQUIRE of the States indefinite

supplies of money for the common defense and general welfare, as

the future Congress will have to require them of individual

citizens; and the latter will be no more bound than the States

themselves have been, to pay the quotas respectively taxed on

them. Had the States complied punctually with the articles of

Confederation, or could their compliance have been enforced by as

peaceable means as may be used with success towards single

persons, our past experience is very far from countenancing an

opinion, that the State governments would have lost their

constitutional powers, and have gradually undergone an entire

consolidation. To maintain that such an event would have ensued,

would be to say at once, that the existence of the State

governments is incompatible with any system whatever that

accomplishes the essental purposes of the Union. PUBLIUS.

 

FEDERALIST No. 46

The Influence of the State and Federal Governments Compared

From the New York Packet. Tuesday, January 29, 1788.

MADISON

To the People of the State of New York:

RESUMING the subject of the last paper, I proceed to inquire

whether the federal government or the State governments will have

the advantage with regard to the predilection and support of the

people. Notwithstanding the different modes in which they are

appointed, we must consider both of them as substantially

dependent on the great body of the citizens of the United States.

I assume this position here as it respects the first, reserving

the proofs for another place. The federal and State governments

are in fact but different agents and trustees of the people,

constituted with different powers, and designed for different

purposes. The adversaries of the Constitution seem to have lost

sight of the people altogether in their reasonings on this

subject; and to have viewed these different establishments, not

only as mutual rivals and enemies, but as uncontrolled by any

common superior in their efforts to usurp the authorities of each

other. These gentlemen must here be reminded of their error. They

must be told that the ultimate authority, wherever the derivative

may be found, resides in the people alone, and that it will not

depend merely on the comparative ambition or address of the

different governments, whether either, or which of them, will be

able to enlarge its sphere of jurisdiction at the expense of the

other. Truth, no less than decency, requires that the event in

every case should be supposed to depend on the sentiments and

sanction of their common constituents. Many considerations,

besides those suggested on a former occasion, seem to place it

beyond doubt that the first and most natural attachment of the

people will be to the governments of their respective States.

Into the administration of these a greater number of individuals

will expect to rise. From the gift of these a greater number of

offices and emoluments will flow. By the superintending care of

these, all the more domestic and personal interests of the people

will be regulated and provided for. With the affairs of these,

the people will be more familiarly and minutely conversant. And

with the members of these, will a greater proportion of the

people have the ties of personal acquaintance and friendship, and

of family and party attachments; on the side of these,

therefore, the popular bias may well be expected most strongly to

incline. Experience speaks the same language in this case. The

federal administration, though hitherto very defective in

comparison with what may be hoped under a better system, had,

during the war, and particularly whilst the independent fund of

paper emissions was in credit, an activity and importance as

great as it can well have in any future circumstances whatever.

It was engaged, too, in a course of measures which had for their

object the protection of everything that was dear, and the

acquisition of everything that could be desirable to the people

at large. It was, nevertheless, invariably found, after the

transient enthusiasm for the early Congresses was over, that the

attention and attachment of the people were turned anew to their

own particular governments; that the federal council was at no

time the idol of popular favor; and that opposition to proposed

enlargements of its powers and importance was the side usually

taken by the men who wished to build their political consequence

on the prepossessions of their fellow-citizens. If, therefore,

as has been elsewhere remarked, the people should in future

become more partial to the federal than to the State governments,

the change can only result from such manifest and irresistible

proofs of a better administration, as will overcome all their

antecedent propensities. And in that case, the people ought not

surely to be precluded from giving most of their confidence where

they may discover it to be most due; but even in that case the

State governments could have little to apprehend, because it is

only within a certain sphere that the federal power can, in the

nature of things, be advantageously administered. The remaining

points on which I propose to compare the federal and State

governments, are the disposition and the faculty they may

respectively possess, to resist and frustrate the measures of

each other. It has been already proved that the members of the

federal will be more dependent on the members of the State

governments, than the latter will be on the former. It has

appeared also, that the prepossessions of the people, on whom

both will depend, will be more on the side of the State

governments, than of the federal government. So far as the

disposition of each towards the other may be influenced by these

causes, the State governments must clearly have the advantage.

But in a distinct and very important point of view, the advantage

will lie on the same side. The prepossessions, which the members

themselves will carry into the federal government, will generally

be favorable to the States; whilst it will rarely happen, that

the members of the State governments will carry into the public

councils a bias in favor of the general government. A local

spirit will infallibly prevail much more in the members of

Congress, than a national spirit will prevail in the legislatures

of the particular States. Every one knows that a great proportion

of the errors committed by the State legislatures proceeds from

the disposition of the members to sacrifice the comprehensive and

permanent interest of the State, to the particular and separate

views of the counties or districts in which they reside. And if

they do not sufficiently enlarge their policy to embrace the

collective welfare of their particular State, how can it be

imagined that they will make the aggregate prosperity of the

Union, and the dignity and respectability of its government, the

objects of their affections and consultations? For the same

reason that the members of the State legislatures will be

unlikely to attach themselves sufficiently to national objects,

the members of the federal legislature will be likely to attach

themselves too much to local objects. The States will be to the

latter what counties and towns are to the former. Measures will

too often be decided according to their probable effect, not on

the national prosperity and happiness, but on the prejudices,

interests, and pursuits of the governments and people of the

individual States. What is the spirit that has in general

characterized the proceedings of Congress? A perusal of their

journals, as well as the candid acknowledgments of such as have

had a seat in that assembly, will inform us, that the members

have but too frequently displayed the character, rather of

partisans of their respective States, than of impartial guardians

of a common interest; that where on one occasion improper

sacrifices have been made of local considerations, to the

aggrandizement of the federal government, the great interests of

the nation have suffered on a hundred, from an undue attention to

the local prejudices, interests, and views of the particular

States. I mean not by these reflections to insinuate, that the

new federal government will not embrace a more enlarged plan of

policy than the existing government may have pursued; much less,

that its views will be as confined as those of the State

legislatures; but only that it will partake sufficiently of the

spirit of both, to be disinclined to invade the rights of the

individual States, or the preorgatives of their governments. The

motives on the part of the State governments, to augment their

prerogatives by defalcations from the federal government, will be

overruled by no reciprocal predispositions in the members. Were

it admitted, however, that the Federal government may feel an

equal disposition with the State governments to extend its power

beyond the due limits, the latter would still have the advantage

in the means of defeating such encroachments. If an act of a

particular State, though unfriendly to the national government,

be generally popular in that State and should not too grossly

violate the oaths of the State officers, it is executed

immediately and, of course, by means on the spot and depending on

the State alone. The opposition of the federal government, or the

interposition of federal officers, would but inflame the zeal of

all parties on the side of the State, and the evil could not be

prevented or repaired, if at all, without the employment of means

which must always be resorted to with reluctance and difficulty.

On the other hand, should an unwarrantable measure of the federal

government be unpopular in particular States, which would seldom

fail to be the case, or even a warrantable measure be so, which

may sometimes be the case, the means of opposition to it are

powerful and at hand. The disquietude of the people; their

repugnance and, perhaps, refusal to co-operate with the officers

of the Union; the frowns of the executive magistracy of the

State; the embarrassments created by legislative devices, which

would often be added on such occasions, would oppose, in any

State, difficulties not to be despised; would form, in a large

State, very serious impediments; and where the sentiments of

several adjoining States happened to be in unison, would present

obstructions which the federal government would hardly be willing

to encounter. But ambitious encroachments of the federal

government, on the authority of the State governments, would not

excite the opposition of a single State, or of a few States

only. They would be signals of general alarm. Every government

would espouse the common cause. A correspondence would be

opened. Plans of resistance would be concerted. One spirit would

animate and conduct the whole. The same combinations, in short,

would result from an apprehension of the federal, as was produced

by the dread of a foreign, yoke; and unless the projected

innovations should be voluntarily renounced, the same appeal to

a trial of force would be made in the one case as was made in the

other. But what degree of madness could ever drive the federal

government to such an extremity. In the contest with Great

Britain, one part of the empire was employed against the other.

The more numerous part invaded the rights of the less numerous

part. The attempt was unjust and unwise; but it was not in

speculation absolutely chimerical. But what would be the contest

in the case we are supposing? Who would be the parties? A few

representatives of the people would be opposed to the people

themselves; or rather one set of representatives would be

contending against thirteen sets of representatives, with the

whole body of their common constituents on the side of the

latter. The only refuge left for those who prophesy the downfall

of the State governments is the visionary supposition that the

federal government may previously accumulate a military force for

the projects of ambition. The reasonings contained in these

papers must have been employed to little purpose indeed, if it

could be necessary now to disprove the reality of this danger.

That the people and the States should, for a sufficient period of

time, elect an uninterupted succession of men ready to betray

both; that the traitors should, throughout this period,

uniformly and systematically pursue some fixed plan for the

extension of the military establishment; that the governments

and the people of the States should silently and patiently behold

the gathering storm, and continue to supply the materials, until

it should be prepared to burst on their own heads, must appear to

every one more like the incoherent dreams of a delirious

jealousy, or the misjudged exaggerations of a counterfeit zeal,

than like the sober apprehensions of genuine patriotism.

Extravagant as the supposition is, let it however be made. Let a

regular army, fully equal to the resources of the country, be

formed; and let it be entirely at the devotion of the federal

government; still it would not be going too far to say, that the

State governments, with the people on their side, would be able

to repel the danger. The highest number to which, according to

the best computation, a standing army can be carried in any

country, does not exceed one hundredth part of the whole number

of souls; or one twenty-fifth part of the number able to bear

arms. This proportion would not yield, in the United States, an

army of more than twenty-five or thirty thousand men. To these

would be opposed a militia amounting to near half a million of

citizens with arms in their hands, officered by men chosen from

among themselves, fighting for their common liberties, and united

and conducted by governments possessing their affections and

confidence. It may well be doubted, whether a militia thus

circumstanced could ever be conquered by such a proportion of

regular troops. Those who are best acquainted with the last

successful resistance of this country against the British arms,

will be most inclined to deny the possibility of it. Besides the

advantage of being armed, which the Americans possess over the

people of almost every other nation, the existence of

subordinate governments, to which the people are attached, and by

which the militia officers are appointed, forms a barrier against

the enterprises of ambition, more insurmountable than any which a

simple government of any form can admit of. Notwithstanding the

military establishments in the several kingdoms of Europe, which

are carried as far as the public resources will bear, the

governments are afraid to trust the people with arms. And it is

not certain, that with this aid alone they would not be able to

shake off their yokes. But were the people to possess the

additional advantages of local governments chosen by themselves,

who could collect the national will and direct the national

force, and of officers appointed out of the militia, by these

governments, and attached both to them and to the militia, it may

be affirmed with the greatest assurance, that the throne of every

tyranny in Europe would be speedily overturned in spite of the

legions which surround it. Let us not insult the free and gallant

citizens of America with the suspicion, that they would be less

able to defend the rights of which they would be in actual

possession, than the debased subjects of arbitrary power would be

to rescue theirs from the hands of their oppressors. Let us

rather no longer insult them with the supposition that they can

ever reduce themselves to the necessity of making the experiment,

by a blind and tame submission to the long train of insidious

measures which must precede and produce it. The argument under

the present head may be put into a very concise form, which

appears altogether conclusive. Either the mode in which the

federal government is to be constructed will render it

sufficiently dependent on the people, or it will not. On the

first supposition, it will be restrained by that dependence from

forming schemes obnoxious to their constituents. On the other

supposition, it will not possess the confidence of the people,

and its schemes of usurpation will be easily defeated by the

State governments, who will be supported by the people. On

summing up the considerations stated in this and the last paper,

they seem to amount to the most convincing evidence, that the

powers proposed to be lodged in the federal government are as

little formidable to those reserved to the individual States, as

they are indispensably necessary to accomplish the purposes of

the Union; and that all those alarms which have been sounded, of

a meditated and consequential annihilation of the State

governments, must, on the most favorable interpretation, be

ascribed to the chimerical fears of the authors of them. PUBLIUS.

 

FEDERALIST No. 47

The Particular Structure of the New Government and the

Distribution of Power Among Its Different Parts

From the New York Packet. Friday, February 1, 1788.

MADISON

To the People of the State of New York:

HAVING reviewed the general form of the proposed government and

the general mass of power allotted to it, I proceed to examine

the particular structure of this government, and the distribution

of this mass of power among its constituent parts. One of the

principal objections inculcated by the more respectable

adversaries to the Constitution, is its supposed violation of the

political maxim, that the legislative, executive, and judiciary

departments ought to be separate and distinct. In the structure

of the federal government, no regard, it is said, seems to have

been paid to this essential precaution in favor of liberty. The

several departments of power are distributed and blended in such

a manner as at once to destroy all symmetry and beauty of form,

and to expose some of the essential parts of the edifice to the

danger of being crushed by the disproportionate weight of other

parts. No political truth is certainly of greater intrinsic

value, or is stamped with the authority of more enlightened

patrons of liberty, than that on which the objection is founded.

The accumulation of all powers, legislative, executive, and

judiciary, in the same hands, whether of one, a few, or many, and

whether hereditary, selfappointed, or elective, may justly be

pronounced the very definition of tyranny. Were the federal

Constitution, therefore, really chargeable with the accumulation

of power, or with a mixture of powers, having a dangerous

tendency to such an accumulation, no further arguments would be

necessary to inspire a universal reprobation of the system. I

persuade myself, however, that it will be made apparent to every

one, that the charge cannot be supported, and that the maxim on

which it relies has been totally misconceived and misapplied. In

order to form correct ideas on this important subject, it will be

proper to investigate the sense in which the preservation of

liberty requires that the three great departments of power should

be separate and distinct. The oracle who is always consulted and

cited on this subject is the celebrated Montesquieu. If he be not

the author of this invaluable precept in the science of politics,

he has the merit at least of displaying and recommending it most

effectually to the attention of mankind. Let us endeavor, in the

first place, to ascertain his meaning on this point. The British

Constitution was to Montesquieu what Homer has been to the

didactic writers on epic poetry. As the latter have considered

the work of the immortal bard as the perfect model from which the

principles and rules of the epic art were to be drawn, and by

which all similar works were to be judged, so this great

political critic appears to have viewed the Constitution of

England as the standard, or to use his own expression, as the

mirror of political liberty; and to have delivered, in the form

of elementary truths, the several characteristic principles of

that particular system. That we may be sure, then, not to mistake

his meaning in this case, let us recur to the source from which

the maxim was drawn.

On the slightest view of the British

Constitution, we must perceive that the legislative, executive,

and judiciary departments are by no means totally separate and

distinct from each other. The executive magistrate forms an

integral part of the legislative authority. He alone has the

prerogative of making treaties with foreign sovereigns, which,

when made, have, under certain limitations, the force of

legislative acts. All the members of the judiciary department are

appointed by him, can be removed by him on the address of the two

Houses of Parliament, and form, when he pleases to consult them,

one of his constitutional councils. One branch of the legislative

department forms also a great constitutional council to the

executive chief, as, on another hand, it is the sole depositary

of judicial power in cases of impeachment, and is invested with

the supreme appellate jurisdiction in all other cases. The

judges, again, are so far connected with the legislative

department as often to attend and participate in its

deliberations, though not admitted to a legislative vote. From

these facts, by which Montesquieu was guided, it may clearly be

inferred that, in saying ``There can be no liberty where the

legislative and executive powers are united in the same person,

or body of magistrates,'' or, ``if the power of judging be not

separated from the legislative and executive powers,'' he did not

mean that these departments ought to have no PARTIAL AGENCY in,

or no CONTROL over, the acts of each other. His meaning, as his

own words import, and still more conclusively as illustrated by

the example in his eye, can amount to no more than this, that

where the WHOLE power of one department is exercised by the same

hands which possess the WHOLE power of another department, the

fundamental principles of a free constitution are subverted. This

would have been the case in the constitution examined by him, if

the king, who is the sole executive magistrate, had possessed

also the complete legislative power, or the supreme

administration of justice; or if the entire legislative body had

possessed the supreme judiciary, or the supreme executive

authority. This, however, is not among the vices of that

constitution. The magistrate in whom the whole executive power

resides cannot of himself make a law, though he can put a

negative on every law; nor administer justice in person, though

he has the appointment of those who do administer it. The judges

can exercise no executive prerogative, though they are shoots

from the executive stock; nor any legislative function, though

they may be advised with by the legislative councils. The entire

legislature can perform no judiciary act, though by the joint act

of two of its branches the judges may be removed from their

offices, and though one of its branches is possessed of the

judicial power in the last resort. The entire legislature, again,

can exercise no executive prerogative, though one of its branches

constitutes the supreme executive magistracy, and another, on the

impeachment of a third, can try and condemn all the subordinate

officers in the executive department. The reasons on which

Montesquieu grounds his maxim are a further demonstration of his

meaning. ``When the legislative and executive powers are united

in the same person or body,'' says he, ``there can be no liberty,

because apprehensions may arise lest THE SAME monarch or senate

should ENACT tyrannical laws to EXECUTE them in a tyrannical

manner. '' Again: ``Were the power of judging joined with the

legislative, the life and liberty of the subject would be exposed

to arbitrary control, for THE JUDGE would then be THE LEGISLATOR.

Were it joined to the executive power, THE JUDGE might behave

with all the violence of AN OPPRESSOR. '' Some of these reasons

are more fully explained in other passages; but briefly stated as

they are here, they sufficiently establish the meaning which we

have put on this celebrated maxim of this celebrated author.

If we look into the constitutions of the several States, we find

that, notwithstanding the emphatical and, in some instances, the

unqualified terms in which this axiom has been laid down, there

is not a single instance in which the several departments of

power have been kept absolutely separate and distinct. New

Hampshire, whose constitution was the last formed, seems to have

been fully aware of the impossibility and inexpediency of

avoiding any mixture whatever of these departments, and has

qualified the doctrine by declaring ``that the legislative,

executive, and judiciary powers ought to be kept as separate

from, and independent of, each other AS THE NATURE OF A FREE

GOVERNMENT WILL ADMIT; OR AS IS CONSISTENT WITH THAT CHAIN OF

CONNECTION THAT BINDS THE WHOLE FABRIC OF THE CONSTITUTION IN ONE

INDISSOLUBLE BOND OF UNITY AND AMITY. '' Her constitution

accordingly mixes these departments in several respects. The

Senate, which is a branch of the legislative department, is also

a judicial tribunal for the trial of impeachments. The

President, who is the head of the executive department, is the

presiding member also of the Senate; and, besides an equal vote

in all cases, has a casting vote in case of a tie. The executive

head is himself eventually elective every year by the

legislative department, and his council is every year chosen by

and from the members of the same department. Several of the

officers of state are also appointed by the legislature. And the

members of the judiciary department are appointed by the

executive department. The constitution of Massachusetts has

observed a sufficient though less pointed caution, in expressing

this fundamental article of liberty. It declares ``that the

legislative department shall never exercise the executive and

judicial powers, or either of them; the executive shall never

exercise the legislative and judicial powers, or either of them;

the judicial shall never exercise the legislative and executive

powers, or either of them. '' This declaration corresponds

precisely with the doctrine of Montesquieu, as it has been

explained, and is not in a single point violated by the plan of

the convention. It goes no farther than to prohibit any one of

the entire departments from exercising the powers of another

department. In the very Constitution to which it is prefixed, a

partial mixture of powers has been admitted. The executive

magistrate has a qualified negative on the legislative body, and

the Senate, which is a part of the legislature, is a court of

impeachment for members both of the executive and judiciary

departments. The members of the judiciary department, again, are

appointable by the executive department, and removable by the

same authority on the address of the two legislative branches.

Lastly, a number of the officers of government are annually

appointed by the legislative department. As the appointment to

offices, particularly executive offices, is in its nature an

executive function, the compilers of the Constitution have, in

this last point at least, violated the rule established by

themselves. I pass over the constitutions of Rhode Island and

Connecticut, because they were formed prior to the Revolution,

and even before the principle under examination had become an

object of political attention. The constitution of New York

contains no declaration on this subject; but appears very

clearly to have been framed with an eye to the danger of

improperly blending the different departments. It gives,

nevertheless, to the executive magistrate, a partial control over

the legislative department; and, what is more, gives a like

control to the judiciary department; and even blends the

executive and judiciary departments in the exercise of this

control. In its council of appointment members of the

legislative are associated with the executive authority, in the

appointment of officers, both executive and judiciary. And its

court for the trial of impeachments and correction of errors is

to consist of one branch of the legislature and the principal

members of the judiciary department. The constitution of New

Jersey has blended the different powers of government more than

any of the preceding. The governor, who is the executive

magistrate, is appointed by the legislature; is chancellor and

ordinary, or surrogate of the State; is a member of the Supreme

Court of Appeals, and president, with a casting vote, of one of

the legislative branches. The same legislative branch acts again

as executive council of the governor, and with him constitutes

the Court of Appeals. The members of the judiciary department are

appointed by the legislative department and removable by one

branch of it, on the impeachment of the other. According to the

constitution of Pennsylvania, the president, who is the head of

the executive department, is annually elected by a vote in which

the legislative department predominates. In conjunction with an

executive council, he appoints the members of the judiciary

department, and forms a court of impeachment for trial of all

officers, judiciary as well as executive. The judges of the

Supreme Court and justices of the peace seem also to be removable

by the legislature; and the executive power of pardoning in

certain cases, to be referred to the same department. The members

of the executive counoil are made EX-OFFICIO justices of peace

throughout the State. In Delaware, the chief executive magistrate

is annually elected by the legislative department. The speakers

of the two legislative branches are vice-presidents in the

executive department. The executive chief, with six others,

appointed, three by each of the legislative branches constitutes

the Supreme Court of Appeals; he is joined with the legislative

department in the appointment of the other judges. Throughout the

States, it appears that the members of the legislature may at the

same time be justices of the peace; in this State, the members of

one branch of it are EX-OFFICIO justices of the peace; as are

also the members of the executive council. The principal officers

of the executive department are appointed by the legislative; and

one branch of the latter forms a court of impeachments. All

officers may be removed on address of the legislature. Maryland

has adopted the maxim in the most unqualified terms; declaring

that the legislative, executive, and judicial powers of

government ought to be forever separate and distinct from each

other. Her constitution, notwithstanding, makes the executive

magistrate appointable by the legislative department; and the

members of the judiciary by the executive department. The

language of Virginia is still more pointed on this subject. Her

constitution declares, ``that the legislative, executive, and

judiciary departments shall be separate and distinct; so that

neither exercise the powers properly belonging to the other; nor

shall any person exercise the powers of more than one of them at

the same time, except that the justices of county courts shall be

eligible to either House of Assembly. '' Yet we find not only

this express exception, with respect to the members of the

irferior courts, but that the chief magistrate, with his

executive council, are appointable by the legislature; that two

members of the latter are triennially displaced at the pleasure

of the legislature; and that all the principal offices, both

executive and judiciary, are filled by the same department. The

executive prerogative of pardon, also, is in one case vested in

the legislative department. The constitution of North Carolina,

which declares ``that the legislative, executive, and supreme

judicial powers of government ought to be forever separate and

distinct from each other,'' refers, at the same time, to the

legislative department, the appointment not only of the executive

chief, but all the principal officers within both that and the

judiciary department. In South Carolina, the constitution makes

the executive magistracy eligible by the legislative department.

It gives to the latter, also, the appointment of the members of

the judiciary department, including even justices of the peace

and sheriffs; and the appointment of officers in the executive

department, down to captains in the army and navy of the State.

In the constitution of Georgia, where it is declared ``that the

legislative, executive, and judiciary departments shall be

separate and distinct, so that neither exercise the powers

properly belonging to the other,'' we find that the executive

department is to be filled by appointments of the legislature;

and the executive prerogative of pardon to be finally exercised

by the same authority. Even justices of the peace are to be

appointed by the legislature. In citing these cases, in which

the legislative, executive, and judiciary departments have not

been kept totally separate and distinct, I wish not to be

regarded as an advocate for the particular organizations of the

several State governments. I am fully aware that among the many

excellent principles which they exemplify, they carry strong

marks of the haste, and still stronger of the inexperience, under

which they were framed. It is but too obvious that in some

instances the fundamental principle under consideration has been

violated by too great a mixture, and even an actual

consolidation, of the different powers; and that in no instance

has a competent provision been made for maintaining in practice

the separation delineated on paper. What I have wished to evince

is, that the charge brought against the proposed Constitution, of

violating the sacred maxim of free government, is warranted

neither by the real meaning annexed to that maxim by its author,

nor by the sense in which it has hitherto been understood in

America. This interesting subject will be resumed in the ensuing

paper. PUBLIUS.

 

FEDERALIST No. 48

These Departments Should Not Be So Far Separated as to Have No

Constitutional Control Over Each Other

From the New York Packet. Friday, February 1, 1788.

MADISON

To the People of the State of New York:

IT WAS shown in the last paper that the political apothegm there

examined does not require that the legislative, executive, and

judiciary departments should be wholly unconnected with each

other. I shall undertake, in the next place, to show that unless

these departments be so far connected and blended as to give to

each a constitutional control over the others, the degree of

separation which the maxim requires, as essential to a free

government, can never in practice be duly maintained. It is

agreed on all sides, that the powers properly belonging to one of

the departments ought not to be directly and completely

administered by either of the other departments. It is equally

evident, that none of them ought to possess, directly or

indirectly, an overruling influence over the others, in the

administration of their respective powers. It will not be denied,

that power is of an encroaching nature, and that it ought to be

effectually restrained from passing the limits assigned to it.

After discriminating, therefore, in theory, the several classes

of power, as they may in their nature be legislative, executive,

or judiciary, the next and most difficult task is to provide some

practical security for each, against the invasion of the others.

What this security ought to be, is the great problem to be

solved. Will it be sufficient to mark, with precision, the

boundaries of these departments, in the constitution of the

government, and to trust to these parchment barriers against the

encroaching spirit of power? This is the security which appears

to have been principally relied on by the compilers of most of

the American constitutions. But experience assures us, that the

efficacy of the provision has been greatly overrated; and that

some more adequate defense is indispensably necessary for the

more feeble, against the more powerful, members of the

government. The legislative department is everywhere extending

the sphere of its activity, and drawing all power into its

impetuous vortex. The founders of our republics have so much

merit for the wisdom which they have displayed, that no task can

be less pleasing than that of pointing out the errors into which

they have fallen. A respect for truth, however, obliges us to

remark, that they seem never for a moment to have turned their

eyes from the danger to liberty from the overgrown and

all-grasping prerogative of an hereditary magistrate, supported

and fortified by an hereditary branch of the legislative

authority. They seem never to have recollected the danger from

legislative usurpations, which, by assembling all power in the

same hands, must lead to the same tyranny as is threatened by

executive usurpations. In a government where numerous and

extensive prerogatives are placed in the hands of an hereditary

monarch, the executive department is very justly regarded as the

source of danger, and watched with all the jealousy which a zeal

for liberty ought to inspire. In a democracy, where a multitude

of people exercise in person the legislative functions, and are

continually exposed, by their incapacity for regular deliberation

and concerted measures, to the ambitious intrigues of their

executive magistrates, tyranny may well be apprehended, on some

favorable emergency, to start up in the same quarter. But in a

representative republic, where the executive magistracy is

carefully limited; both in the extent and the duration of its

power; and where the legislative power is exercised by an

assembly, which is inspired, by a supposed influence over the

people, with an intrepid confidence in its own strength; which is

sufficiently numerous to feel all the passions which actuate a

multitude, yet not so numerous as to be incapable of pursuing the

objects of its passions, by means which reason prescribes; it is

against the enterprising ambition of this department that the

people ought to indulge all their jealousy and exhaust all their

precautions. The legislative department derives a superiority in

our governments from other circumstances. Its constitutional

powers being at once more extensive, and less susceptible of

precise limits, it can, with the greater facility, mask, under

complicated and indirect measures, the encroachments which it

makes on the co-ordinate departments. It is not unfrequently a

question of real nicety in legislative bodies, whether the

operation of a particular measure will, or will not, extend

beyond the legislative sphere. On the other side, the executive

power being restrained within a narrower compass, and being more

simple in its nature, and the judiciary being described by

landmarks still less uncertain, projects of usurpation by either

of these departments would immediately betray and defeat

themselves. Nor is this all: as the legislative department alone

has access to the pockets of the people, and has in some

constitutions full discretion, and in all a prevailing influence,

over the pecuniary rewards of those who fill the other

departments, a dependence is thus created in the latter, which

gives still greater facility to encroachments of the former. I

have appealed to our own experience for the truth of what I

advance on this subject. Were it necessary to verify this

experience by particular proofs, they might be multiplied

without end. I might find a witness in every citizen who has

shared in, or been attentive to, the course of public

administrations. I might collect vouchers in abundance from the

records and archives of every State in the Union. But as a more

concise, and at the same time equally satisfactory, evidence, I

will refer to the example of two States, attested by two

unexceptionable authorities. The first example is that of

Virginia, a State which, as we have seen, has expressly declared

in its constitution, that the three great departments ought not

to be intermixed. The authority in support of it is Mr.

Jefferson, who, besides his other advantages for remarking the

operation of the government, was himself the chief magistrate of

it. In order to convey fully the ideas with which his experience

had impressed him on this subject, it will be necessary to quote

a passage of some length from his very interesting ``Notes on the

State of Virginia,'' p. 195. ``All the powers of government,

legislative, executive, and judiciary, result to the legislative

body. The concentrating these in the same hands, is precisely the

definition of despotic government. It will be no alleviation,

that these powers will be exercised by a plurality of hands, and

not by a single one. One hundred and seventy-three despots would

surely be as oppressive as one. Let those who doubt it, turn

their eyes on the republic of Venice. As little will it avail us,

that they are chosen by ourselves. An ELECTIVE DESPOTISM was not

the government we fought for; but one which should not only be

founded on free principles, but in which the powers of government

should be so divided and balanced among several bodies of

magistracy, as that no one could transcend their legal limits,

without being effectually checked and restrained by the others.

For this reason, that convention which passed the ordinance of

government, laid its foundation on this basis, that the

legislative, executive, and judiciary departments should be

separate and distinct, so that no person should exercise the

powers of more than one of them at the same time. BUT NO BARRIER

WAS PROVIDED BETWEEN THESE SEVERAL POWERS. The judiciary and the

executive members were left dependent on the legislative for

their subsistence in office, and some of them for their

continuance in it. If, therefore, the legislature assumes

executive and judiciary powers, no opposition is likely to be

made; nor, if made, can be effectual; because in that case they

may put their proceedings into the form of acts of Assembly,

which will render them obligatory on the other branches. They

have accordingly, IN MANY instances, DECIDED RIGHTS which should

have been left to JUDICIARY CONTROVERSY, and THE DIRECTION OF THE

EXECUTIVE, DURING THE WHOLE TIME OF THEIR SESSION, IS BECOMING

HABITUAL AND FAMILIAR. ''The other State which I shall take for

an example is Pennsylvania; and the other authority, the Council

of Censors, which assembled in the years 1783 and 1784. A part of

the duty of this body, as marked out by the constitution, was

``to inquire whether the constitution had been preserved

inviolate in every part; and whether the legislative and

executive branches of government had performed their duty as

guardians of the people, or assumed to themselves, or exercised,

other or greater powers than they are entitled to by the

constitution. '' In the execution of this trust, the council were

necessarily led to a comparison of both the legislative and

executive proceedings, with the constitutional powers of these

departments; and from the facts enumerated, and to the truth of

most of which both sides in the council subscribed, it appears

that the constitution had been flagrantly violated by the

legislature in a variety of important instances. A great number

of laws had been passed, violating, without any apparent

necessity, the rule requiring that all bills of a public nature

shall be previously printed for the consideration of the people;

although this is one of the precautions chiefly relied on by the

constitution against improper acts of legislature. The

constitutional trial by jury had been violated, and powers

assumed which had not been delegated by the constitution.

Executive powers had been usurped. The salaries of the judges,

which the constitution expressly requires to be fixed, had been

occasionally varied; and cases belonging to the judiciary

department frequently drawn within legislative cognizance and

determination. Those who wish to see the several particulars

falling under each of these heads, may consult the journals of

the council, which are in print. Some of them, it will be found,

may be imputable to peculiar circumstances connected with the

war; but the greater part of them may be considered as the

spontaneous shoots of an ill-constituted government. It appears,

also, that the executive department had not been innocent of

frequent breaches of the constitution. There are three

observations, however, which ought to be made on this head:

FIRST, a great proportion of the instances were either

immediately produced by the necessities of the war, or

recommended by Congress or the commander-in-chief; 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 responsibility

for the acts of the body, and deriving confidence from mutual

example and joint influence, unauthorized measures would, of

course, be more freely hazarded, than where the executive

department is administered by a single hand, or by a few hands.

The conclusion which I am warranted in drawing from these

observations is, that a mere demarcation on parchment of the

constitutional limits of the several departments, is not a

sufficient guard against those encroachments which lead to a

tyrannical concentration of all the powers of government in the

same hands. PUBLIUS.

 

FEDERALIST No. 49

Method of Guarding Against the Encroachments of Any One

Department of Government by Appealing to the People Through a

Convention

From the New York Packet. Tuesday, February 5, 1788.

HAMILTON OR MADISON

To the People of the State of New York:

THE author of the ``Notes on the State of Virginia,'' quoted in

the last paper, has subjoined to that valuable work the draught

of a constitution, which had been prepared in order to be laid

before a convention, expected to be called in 1783, by the

legislature, for the establishment of a constitution for that

commonwealth. The plan, like every thing from the same pen, marks

a turn of thinking, original, comprehensive, and accurate; and is

the more worthy of attention as it equally displays a fervent

attachment to republican government and an enlightened view of

the dangerous propensities against which it ought to be guarded.

One of the precautions which he proposes, and on which he appears

ultimately to rely as a palladium to the weaker departments of

power against the invasions of the stronger, is perhaps

altogether his own, and as it immediately relates to the subject

of our present inquiry, ought not to be overlooked. His

proposition is, ``that whenever any two of the three branches of

government shall concur in opinion, each by the voices of two

thirds of their whole number, that a convention is necessary for

altering the constitution, or CORRECTING BREACHES OF IT, a

convention shall be called for the purpose. ''As the people are

the only legitimate fountain of power, and it is from them that

the constitutional charter, under which the several branches of

government hold their power, is derived, it seems strictly

consonant to the republican theory, to recur to the same original

authority, not only whenever it may be necessary to enlarge,

diminish, or new-model the powers of the government, but also

whenever any one of the departments may commit encroachments on

the chartered authorities of the others. The several departments

being perfectly co-ordinate by the terms of their common

commission, none of them, it is evident, can pretend to an

exclusive or superior right of settling the boundaries between

their respective powers; and how are the encroachments of the

stronger to be prevented, or the wrongs of the weaker to be

redressed, without an appeal to the people themselves, who, as

the grantors of the commissions, can alone declare its true

meaning, and enforce its observance? There is certainly great

force in this reasoning, and it must be allowed to prove that a

constitutional road to the decision of the people ought to be

marked out and kept open, for certain great and extraordinary

occasions. But there appear to be insuperable objections against

the proposed recurrence to the people, as a provision in all

cases for keeping the several departments of power within their

constitutional limits. In the first place, the provision does not

reach the case of a combination of two of the departments against

the third. If the legislative authority, which possesses so many

means of operating on the motives of the other departments,

should be able to gain to its interest either of the others, or

even one third of its members, the remaining department could

derive no advantage from its remedial provision. I do not dwell,

however, on this objection, because it may be thought to be

rather against the modification of the principle, than against

the principle itself. In the next place, it may be considered as

an objection inherent in the principle, that as every appeal to

the people would carry an implication of some defect in the

government, frequent appeals would, in a great measure, deprive

the government of that veneration which time bestows on every

thing, and without which perhaps the wisest and freest

governments would not possess the requisite stability. If it be

true that all governments rest on opinion, it is no less true

that the strength of opinion in each individual, and its

practical influence on his conduct, depend much on the number

which he supposes to have entertained the same opinion. The

reason of man, like man himself, is timid and cautious when left

alone, and acquires firmness and confidence in proportion to the

number with which it is associated. When the examples which

fortify opinion are ANCIENT as well as NUMEROUS, they are known

to have a double effect. In a nation of philosophers, this

consideration ought to be disregarded. A reverence for the laws

would be sufficiently inculcated by the voice of an enlightened

reason. But a nation of philosophers is as little to be expected

as the philosophical race of kings wished for by Plato. And in

every other nation, the most rational government will not find it

a superfluous advantage to have the prejudices of the community

on its side. The danger of disturbing the public tranquillity by

interesting too strongly the public passions, is a still more

serious objection against a frequent reference of constitutional

questions to the decision of the whole society. Notwithstanding

the success which has attended the revisions of our established

forms of government, and which does so much honor to the virtue

and intelligence of the people of America, it must be confessed

that the experiments are of too ticklish a nature to be

unnecessarily multiplied. We are to recollect that all the

existing constitutions were formed in the midst of a danger which

repressed the passions most unfriendly to order and concord; of

an enthusiastic confidence of the people in their patriotic

leaders, which stifled the ordinary diversity of opinions on

great national questions; of a universal ardor for new and

opposite forms, produced by a universal resentment and

indignation against the ancient government; and whilst no spirit

of party connected with the changes to be made, or the abuses to

be reformed, could mingle its leaven in the operation. The future

situations in which we must expect to be usually placed, do not

present any equivalent security against the danger which is

apprehended. But the greatest objection of all is, that the

decisions which would probably result from such appeals would not

answer the purpose of maintaining the constitutional equilibrium

of the government. We have seen that the tendency of republican

governments is to an aggrandizement of the legislative at the

expense of the other departments. The appeals to the people,

therefore, would usually be made by the executive and judiciary

departments. But whether made by one side or the other, would

each side enjoy equal advantages on the trial? Let us view their

different situations. The members of the executive and judiciary

departments are few in number, and can be personally known to a

small part only of the people. The latter, by the mode of their

appointment, as well as by the nature and permanency of it, are

too far removed from the people to share much in their

prepossessions. The former are generally the objects of jealousy,

and their administration is always liable to be discolored and

rendered unpopular. The members of the legislative department, on

the other hand, are numberous. They are distributed and dwell

among the people at large. Their connections of blood, of

friendship, and of acquaintance embrace a great proportion of the

most influential part of the society. The nature of their public

trust implies a personal influence among the people, and that

they are more immediately the confidential guardians of the

rights and liberties of the people. With these advantages, it can

hardly be supposed that the adverse party would have an equal

chance for a favorable issue. But the legislative party would not

only be able to plead their cause most successfully with the

people. They would probably be constituted themselves the judges.

The same influence which had gained them an election into the

legislature, would gain them a seat in the convention. If this

should not be the case with all, it would probably be the case

with many, and pretty certainly with those leading characters, on

whom every thing depends in such bodies. The convention, in

short, would be composed chiefly of men who had been, who

actually were, or who expected to be, members of the department

whose conduct was arraigned. They would consequently be parties

to the very question to be decided by them. It might, however,

sometimes happen, that appeals would be made under circumstances

less adverse to the executive and judiciary departments. The

usurpations of the legislature might be so flagrant and so

sudden, as to admit of no specious coloring. A strong party

among themselves might take side with the other branches. The

executive power might be in the hands of a peculiar favorite of

the people. In such a posture of things, the public decision

might be less swayed by prepossessions in favor of the

legislative party. But still it could never be expected to turn

on the true merits of the question. It would inevitably be

connected with the spirit of pre-existing parties, or of parties

springing out of the question itself. It would be connected with

persons of distinguished character and extensive influence in the

community. It would be pronounced by the very men who had been

agents in, or opponents of, the measures to which the decision

would relate. The PASSIONS, therefore, not the REASON, of the

public would sit in judgment. But it is the reason, alone, of the

public, that ought to control and regulate the government. The

passions ought to be controlled and regulated by the government.

We found in the last paper, that mere declarations in the written

constitution are not sufficient to restrain the several

departments within their legal rights. It appears in this, that

occasional appeals to the people would be neither a proper nor an

effectual provision for that purpose. How far the provisions of a

different nature contained in the plan above quoted might be

adequate, I do not examine. Some of them are unquestionably

founded on sound political principles, and all of them are framed

with singular ingenuity and precision. PUBLIUS.

 

FEDERALIST No. 50

Periodical Appeals to the People Considered

From the New York Packet. Tuesday, February 5, 1788.

HAMILTON OR MADISON

To the People of the State of New York:

IT MAY be contended, perhaps, that instead of OCCASIONAL appeals

to the people, which are liable to the objections urged against

them, PERIODICAL appeals are the proper and adequate means of

PREVENTING AND CORRECTING INFRACTIONS OF THE CONSTITUTION. It

will be attended to, that in the examination of these expedients,

I confine myself to their aptitude for ENFORCING the

Constitution, by keeping the several departments of power within

their due bounds, without particularly considering them as

provisions for ALTERING the Constitution itself. In the first

view, appeals to the people at fixed periods appear to be nearly

as ineligible as appeals on particular occasions as they emerge.

If the periods be separated by short intervals, the measures to

be reviewed and rectified will have been of recent date, and will

be connected with all the circumstances which tend to vitiate and

pervert the result of occasional revisions. If the periods be

distant from each other, the same remark will be applicable to

all recent measures; and in proportion as the remoteness of the

others may favor a dispassionate review of them, this advantage

is inseparable from inconveniences which seem to counterbalance

it. In the first place, a distant prospect of public censure

would be a very feeble restraint on power from those excesses to

which it might be urged by the force of present motives. Is it to

be imagined that a legislative assembly, consisting of a hundred

or two hundred members, eagerly bent on some favorite object, and

breaking through the restraints of the Constitution in pursuit of

it, would be arrested in their career, by considerations drawn

from a censorial revision of their conduct at the future distance

of ten, fifteen, or twenty years? In the next place, the abuses

would often have completed their mischievous effects before the

remedial provision would be applied. And in the last place, where

this might not be the case, they would be of long standing, would

have taken deep root, and would not easily be extirpated. The

scheme of revising the constitution, in order to correct recent

breaches of it, as well as for other purposes, has been actually

tried in one of the States. One of the objects of the Council of

Censors which met in Pennsylvania in 1783 and 1784, was, as we

have seen, to inquire, ``whether the constitution had been

violated, and whether the legislative and executive departments

had encroached upon each other. '' This important and novel

experiment in politics merits, in several points of view, very

particular attention. In some of them it may, perhaps, as a

single experiment, made under circumstances somewhat peculiar, be

thought to be not absolutely conclusive. But as applied to the

case under consideration, it involves some facts, which I venture

to remark, as a complete and satisfactory illustration of the

reasoning which I have employed. First. It appears, from the

names of the gentlemen who composed the council, that some, at

least, of its most active members had also been active and

leading characters in the parties which pre-existed in the State.

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 other

members of the executive council, within the seven preceding

years. One of them had been speaker, and a number of others

distinguished members, of the legislative assembly within the

same period. 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 proceedings exhibits a proof equally

satisfactory. In all questions, however unimportant in

themselves, or unconnected with each other, the same names stand

invariably contrasted on the opposite columns. Every unbiased

observer may infer, without danger of mistake, and at the same

time without meaning to reflect on either party, or any

individuals of either party, that, unfortunately, PASSION, not

REASON, must have presided over their decisions. When men

exercise their reason coolly and freely on a variety of distinct

questions, they inevitably fall into different opinions on some

of them. When they are governed by a common passion, their

opinions, if they are so to be called, will be the same.

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 limiting them within their constitutional places.

Fifthly. I have never understood that the decisions of the

council on constitutional questions, whether rightly or

erroneously formed, have had any effect in varying the practice

founded on legislative constructions. It even appears, if I

mistake not, that in one instance the contemporary legislature

denied the constructions of the council, and actually prevailed

in the contest. This censorial body, therefore, proves at the

same time, by its researches, the existence of the disease, and

by its example, the inefficacy of the remedy. This conclusion

cannot be invalidated by alleging that the State in which the

experiment was made was at that crisis, and had been for a long

time before, violently heated and distracted by the rage of

party. Is it to be presumed, that at any future septennial epoch

the same State will be free from parties? Is it to be presumed

that any other State, at the same or any other given period, will

be exempt from them? Such an event ought to be neither presumed

nor desired; because an extinction of parties necessarily implies

either a universal alarm for the public safety, or an absolute

extinction of liberty. Were the precaution taken of excluding

from the assemblies elected by the people, to revise the

preceding administration of the government, all persons who

should have been concerned with the government within the given

period, the difficulties would not be obviated. The important

task would probably devolve on men, who, with inferior

capacities, would in other respects be little better qualified.

Although they might not have been personally concerned in the

administration, and therefore not immediately agents in the

measures to be examined, they would probably have been involved

in the parties connected with these measures, and have been

elected under their auspices. PUBLIUS.

 

FEDERALIST No. 51

The Structure of the Government Must Furnish the Proper Checks

and Balances Between the Different Departments

From the New York Packet. Friday, February 8, 1788.

HAMILTON OR MADISON

To the People of the State of New York:

TO WHAT expedient, then, shall we finally resort, for maintaining

in practice the necessary partition of power among the several

departments, as laid down in the Constitution? The only answer

that can be given is, that as all these exterior provisions are

found to be inadequate, the defect must be supplied, by so

contriving the interior structure of the government as that its

several constituent parts may, by their mutual relations, be the

means of keeping each other in their proper places. Without

presuming to undertake a full development of this important idea,

I will hazard a few general observations, which may perhaps place

it in a clearer light, and enable us to form a more correct

judgment of the principles and structure of the government

planned by the convention. In order to lay a due foundation for

that separate and distinct exercise of the different powers of

government, which to a certain extent is admitted on all hands to

be essential to the preservation of liberty, it is evident that

each department should have a will of its own; and consequently

should be so constituted that the members of each should have as

little agency as possible in the appointment of the members of

the others. Were this principle rigorously adhered to, it would

require that all the appointments for the supreme executive,

legislative, and judiciary magistracies should be drawn from the

same fountain of authority, the people, through channels having

no communication whatever with one another. Perhaps such a plan

of constructing the several departments would be less difficult

in practice than it may in contemplation appear. Some

difficulties, however, and some additional expense would attend

the execution of it. Some deviations, therefore, from the

principle must be admitted. In the constitution of the judiciary

department in particular, it might be inexpedient to insist

rigorously on the principle: first, because peculiar

qualifications being essential in the members, the primary

consideration ought to be to select that mode of choice which

best secures these qualifications; secondly, because the

permanent tenure by which the appointments are held in that

department, must soon destroy all sense of dependence on the

authority conferring them. It is equally evident, that the

members of each department should be as little dependent as

possible on those of the others, for the emoluments annexed to

their offices. Were the executive magistrate, or the judges, not

independent of the legislature in this particular, their

independence in every other would be merely nominal. But the

great security against a gradual concentration of the several

powers in the same department, consists in giving to those who

administer each department the necessary constitutional means and

personal motives to resist encroachments of the others. The

provision for defense must in this, as in all other cases, be

made commensurate to the danger of attack. Ambition must be made

to counteract ambition. The interest of the man must be

connected with the constitutional rights of the place. It may be

a reflection on human nature, that such devices should be

necessary to control the abuses of government. But what is

government itself, but the greatest of all reflections on human

nature? If men were angels, no government would be necessary. If

angels were to govern men, neither external nor internal

controls on government would be necessary. In framing a

government which is to be administered by men over men, the great

difficulty lies in this: you must first enable the government to

control the governed; and in the next place oblige it to control

itself. A dependence on the people is, no doubt, the primary

control on the government; but experience has taught mankind the

necessity of auxiliary precautions. This policy of supplying, by

opposite and rival interests, the defect of better motives, might

be traced through the whole system of human affairs, private as

well as public. We see it particularly displayed in all the

subordinate distributions of power, where the constant aim is to

divide and arrange the several offices in such a manner as that

each may be a check on the other that the private interest of

every individual may be a sentinel over the public rights. These

inventions of prudence cannot be less requisite in the

distribution of the supreme powers of the State. But it is not

possible to give to each department an equal power of

self-defense. In republican government, the legislative

authority necessarily predominates. The remedy for this

inconveniency is to divide the legislature into different

branches; and to render them, by different modes of election and

different principles of action, as little connected with each

other as the nature of their common functions and their common

dependence on the society will admit. It may even be necessary

to guard against dangerous encroachments by still further

precautions. As the weight of the legislative authority requires

that it should be thus divided, the weakness of the executive may

require, on the other hand, that it should be fortified. An

absolute negative on the legislature appears, at first view, to

be the natural defense with which the executive magistrate should

be armed. But perhaps it would be neither altogether safe nor

alone sufficient. On ordinary occasions it might not be exerted

with the requisite firmness, and on extraordinary occasions it

might be perfidiously abused. May not this defect of an absolute

negative be supplied by some qualified connection between this

weaker department and the weaker branch of the stronger

department, by which the latter may be led to support the

constitutional rights of the former, without being too much

detached from the rights of its own department? If the principles

on which these observations are founded be just, as I persuade

myself they are, and they be applied as a criterion to the

several State constitutions, and to the federal Constitution it

will be found that if the latter does not perfectly correspond

with them, the former are infinitely less able to bear such a

test. There are, moreover, two considerations particularly

applicable to the federal system of America, which place that

system in a very interesting point of view. First. In a single

republic, all the power surrendered by the people is submitted to

the administration of a single government; and the usurpations

are guarded against by a division of the government into distinct

and separate departments. In the compound republic of America,

the power surrendered by the people is first divided between two

distinct governments, and then the portion allotted to each

subdivided among distinct and separate departments. Hence a

double security arises to the rights of the people. The different

governments will control each other, at the same time that each

will be controlled by itself. Second. It is of great importance

in a republic not only to guard the society against the

oppression of its rulers, but to guard one part of the society

against the injustice of the other part. Different interests

necessarily exist in different classes of citizens. If a

majority be united by a common interest, the rights of the

minority will be insecure. There are but two methods of

providing against this evil: the one by creating a will in the

community independent of the majority that is, of the society

itself; the other, by comprehending in the society so many

separate descriptions of citizens as will render an unjust

combination of a majority of the whole very improbable, if not

impracticable. The first method prevails in all governments

possessing an hereditary or self-appointed authority. This, at

best, is but a precarious security; because a power independent

of the society may as well espouse the unjust views of the major,

as the rightful interests of the minor party, and may possibly be

turned against both parties. The second method will be

exemplified in the federal republic of the United States. Whilst

all authority in it will be derived from and dependent on the

society, the society itself will be broken into so many parts,

interests, and classes of citizens, that the rights of

individuals, or of the minority, will be in little danger from

interested combinations of the majority. In a free government

the security for civil rights must be the same as that for

religious rights. It consists in the one case in the

multiplicity of interests, and in the other in the multiplicity

of sects. The degree of security in both cases will depend on

the number of interests and sects; and this may be presumed to

depend on the extent of country and number of people comprehended

under the same government. This view of the subject must

particularly recommend a proper federal system to all the sincere

and considerate friends of republican government, since it shows

that in exact proportion as the territory of the Union may be

formed into more circumscribed Confederacies, or States

oppressive combinations of a majority will be facilitated: the

best security, under the republican forms, for the rights of

every class of citizens, will be diminished: and consequently the

stability and independence of some member of the government, the

only other security, must be proportionately increased. Justice

is the end of government. It is the end of civil society. It

ever has been and ever will be pursued until it be obtained, or

until liberty be lost in the pursuit. In a society under the

forms of which the stronger faction can readily unite and oppress

the weaker, anarchy may as truly be said to reign as in a state

of nature, where the weaker individual is not secured against the

violence of the stronger; and as, in the latter state, even the

stronger individuals are prompted, by the uncertainty of their

condition, to submit to a government which may protect the weak

as well as themselves; so, in the former state, will the more

powerful factions or parties be gradnally induced, by a like

motive, to wish for a government which will protect all parties,

the weaker as well as the more powerful. It can be little

doubted that if the State of Rhode Island was separated from the

Confederacy and left to itself, the insecurity of rights under

the popular form of government within such narrow limits would be

displayed by such reiterated oppressions of factious majorities

that some power altogether independent of the people would soon

be called for by the voice of the very factions whose misrule had

proved the necessity of it. In the extended republic of the

United States, and among the great variety of interests, parties,

and sects which it embraces, a coalition of a majority of the

whole society could seldom take place on any other principles

than those of justice and the general good; whilst there being

thus less danger to a minor from the will of a major party, there

must be less pretext, also, to provide for the security of the

former, by introducing into the government a will not dependent

on the latter, or, in other words, a will independent of the

society itself. It is no less certain than it is important,

notwithstanding the contrary opinions which have been

entertained, that the larger the society, provided it lie within

a practical sphere, the more duly capable it will be of

self-government. And happily for the REPUBLICAN CAUSE, the

practicable sphere may be carried to a very great extent, by a

judicious modification and mixture of the FEDERAL PRINCIPLE.

PUBLIUS.

 

FEDERALIST No. 52

The House of Representatives

From the New York Packet. Friday, February 8, 1788.

HAMILTON OR MADISON

To the People of the State of New York:

FROM the more general inquiries pursued in the four last papers,

I pass on to a more particular examination of the several parts

of the government. I shall begin with the House of

Representatives. The first view to be taken of this part of the

government relates to the qualifications of the electors and the

elected. Those of the former are to be the same with those of the

electors of the most numerous branch of the State legislatures.

The definition of the right of suffrage is very justly regarded

as a fundamental article of republican government. It was

incumbent on the convention, therefore, to define and establish

this right in the Constitution. To have left it open for the

occasional regulation of the Congress, would have been improper

for the reason just mentioned. To have submitted it to the

legislative discretion of the States, would have been improper

for the same reason; and for the additional reason that it would

have rendered too dependent on the State governments that branch

of the federal government which ought to be dependent on the

people alone. To have reduced the different qualifications in the

different States to one uniform rule, would probably have been as

dissatisfactory to some of the States as it would have been

difficult to the convention. The provision made by the convention

appears, therefore, to be the best that lay within their option.

It must be satisfactory to every State, because it is conformable

to the standard already established, or which may be established,

by the State itself. It will be safe to the United States,

because, being fixed by the State constitutions, it is not

alterable by the State governments, and it cannot be feared that

the people of the States will alter this part of their

constitutions in such a manner as to abridge the rights secured

to them by the federal Constitution. The qualifications of the

elected, being less carefully and properly defined by the State

constitutions, and being at the same time more susceptible of

uniformity, have been very properly considered and regulated by

the convention. A representative of the United States must be of

the age of twenty-five years; must have been seven years a

citizen of the United States; must, at the time of his election,

be an inhabitant of the State he is to represent; and, during the

time of his service, must be in no office under the United

States. Under these reasonable limitations, the door of this part

of the federal government is open to merit of every description,

whether native or adoptive, whether young or old, and without

regard to poverty or wealth, or to any particular profession of

religious faith. The term for which the representatives are to be

elected falls under a second view which may be taken of this

branch. In order to decide on the propriety of this article, two

questions must be considered: first, whether biennial elections

will, in this case, be safe; secondly, whether they be necessary

or useful. First. As it is essential to liberty that the

government in general should have a common interest with the

people, so it is particularly essential that the branch of it

under consideration should have an immediate dependence on, and

an intimate sympathy with, the people. Frequent elections are

unquestionably the only policy by which this dependence and

sympathy can be effectually secured. But what particular degree

of frequency may be absolutely necessary for the purpose, does

not appear to be susceptible of any precise calculation, and must

depend on a variety of circumstances with which it may be

connected. Let us consult experience, the guide that ought always

to be followed whenever it can be found. The scheme of

representation, as a substitute for a meeting of the citizens in

person, being at most but very imperfectly known to ancient

polity, it is in more modern times only that we are to expect

instructive examples. And even here, in order to avoid a research

too vague and diffusive, it will be proper to confine ourselves

to the few examples which are best known, and which bear the

greatest analogy to our particular case. The first to which this

character ought to be applied, is the House of Commons in Great

Britain. The history of this branch of the English Constitution,

anterior to the date of Magna Charta, is too obscure to yield

instruction. The very existence of it has been made a question

among political antiquaries. The earliest records of subsequent

date prove that parliaments were to SIT only every year; not that

they were to be ELECTED every year. And even these annual

sessions were left so much at the discretion of the monarch,

that, under various pretexts, very long and dangerous

intermissions were often contrived by royal ambition. To remedy

this grievance, it was provided by a statute in the reign of

Charles II. , that the intermissions should not be protracted

beyond a period of three years. On the accession of William III.

, when a revolution took place in the government, the subject was

still more seriously resumed, and it was declared to be among the

fundamental rights of the people that parliaments ought to be

held FREQUENTLY. By another statute, which passed a few years

later in the same reign, the term ``frequently,'' which had

alluded to the triennial period settled in the time of Charles

II. , is reduced to a precise meaning, it being expressly enacted

that a new parliament shall be called within three years after

the termination of the former. The last change, from three to

seven years, is well known to have been introduced pretty early

in the present century, under on alarm for the Hanoverian

succession. From these facts it appears that the greatest

frequency of elections which has been deemed necessary in that

kingdom, for binding the representatives to their constituents,

does not exceed a triennial return of them. And if we may argue

from the degree of liberty retained even under septennial

elections, and all the other vicious ingredients in the

parliamentary constitution, we cannot doubt that a reduction of

the period from seven to three years, with the other necessary

reforms, would so far extend the influence of the people over

their representatives as to satisfy us that biennial elections,

under the federal system, cannot possibly be dangerous to the

requisite dependence of the House of Representatives on their

constituents. Elections in Ireland, till of late, were regulated

entirely by the discretion of the crown, and were seldom

repeated, except on the accession of a new prince, or some other

contingent event. The parliament which commenced with George II.

was continued throughout his whole reign, a period of about

thirty-five years. The only dependence of the representatives on

the people consisted in the right of the latter to supply

occasional vacancies by the election of new members, and in the

chance of some event which might produce a general new election.

The ability also of the Irish parliament to maintain the rights

of their constituents, so far as the disposition might exist, was

extremely shackled by the control of the crown over the subjects

of their deliberation. Of late these shackles, if I mistake not,

have been broken; and octennial parliaments have besides been

established. What effect may be produced by this partial reform,

must be left to further experience. The example of Ireland, from

this view of it, can throw but little light on the subject. As

far as we can draw any conclusion from it, it must be that if the

people of that country have been able under all these

disadvantages to retain any liberty whatever, the advantage of

biennial elections would secure to them every degree of liberty,

which might depend on a due connection between their

representatives and themselves. Let us bring our inquiries nearer

home. The example of these States, when British colonies, claims

particular attention, at the same time that it is so well known

as to require little to be said on it. The principle of

representation, in one branch of the legislature at least, was

established in all of them. But the periods of election were

different. They varied from one to seven years. Have we any

reason to infer, from the spirit and conduct of the

representatives of the people, prior to the Revolution, that

biennial elections would have been dangerous to the public

liberties? The spirit which everywhere displayed itself at the

commencement of the struggle, and which vanquished the obstacles

to independence, is the best of proofs that a sufficient portion

of liberty had been everywhere enjoyed to inspire both a sense of

its worth and a zeal for its proper enlargement This remark holds

good, as well with regard to the then colonies whose elections

were least frequent, as to those whose elections were most

frequent Virginia was the colony which stood first in resisting

the parliamentary usurpations of Great Britain; it was the first

also in espousing, by public act, the resolution of independence.

In Virginia, nevertheless, if I have not been misinformed,

elections under the former government were septennial. This

particular example is brought into view, not as a proof of any

peculiar merit, for the priority in those instances was probably

accidental; and still less of any advantage in SEPTENNIAL

elections, for when compared with a greater frequency they are

inadmissible; but merely as a proof, and I conceive it to be a

very substantial proof, that the liberties of the people can be

in no danger from BIENNIAL elections. The conclusion resulting

from these examples will be not a little strengthened by

recollecting three circumstances. The first is, that the federal

legislature will possess a part only of that supreme legislative

authority which is vested completely in the British Parliament;

and which, with a few exceptions, was exercised by the colonial

assemblies and the Irish legislature. It is a received and

well-founded maxim, that where no other circumstances affect the

case, the greater the power is, the shorter ought to be its

duration; and, conversely, the smaller the power, the more safely

may its duration be protracted. In the second place, it has, on

another occasion, been shown that the federal legislature will

not only be restrained by its dependence on its people, as other

legislative bodies are, but that it will be, moreover, watched

and controlled by the several collateral legislatures, which

other legislative bodies are not. And in the third place, no

comparison can be made between the means that will be possessed

by the more permanent branches of the federal government for

seducing, if they should be disposed to seduce, the House of

Representatives from their duty to the people, and the means of

influence over the popular branch possessed by the other branches

of the government above cited. With less power, therefore, to

abuse, the federal representatives can be less tempted on one

side, and will be doubly watched on the other. PUBLIUS.

FEDERALIST No. 53

The Same Subject Continued(The House of Representatives)

From the New York Packet. Tuesday, February 12, 1788.

HAMILTON OR MADISON

To the People of the State of New York:

I SHALL here, perhaps, be reminded of a current observation,

``that where annual elections end, tyranny begins. '' If it be

true, as has often been remarked, that sayings which become

proverbial are generally founded in reason, it is not less true,

that when once established, they are often applied to cases to

which the reason of them does not extend. I need not look for a

proof beyond the case before us. What is the reason on which this

proverbial observation is founded? No man will subject himself to

the ridicule of pretending that any natural connection subsists

between the sun or the seasons, and the period within which human

virtue can bear the temptations of power. Happily for mankind,

liberty is not, in this respect, confined to any single point of

time; but lies within extremes, which afford sufficient latitude

for all the variations which may be required by the various

situations and circumstances of civil society. The election of

magistrates might be, if it were found expedient, as in some

instances it actually has been, daily, weekly, or monthly, as

well as annual; and if circumstances may require a deviation from

the rule on one side, why not also on the other side? Turning our

attention to the periods established among ourselves, for the

election of the most numerous branches of the State legislatures,

we find them by no means coinciding any more in this instance,

than in the elections of other civil magistrates. In Connecticut

and Rhode Island, the periods are half-yearly. In the other

States, South Carolina excepted, they are annual. In South

Carolina they are biennial as is proposed in the federal

government. Here is a difference, as four to one, between the

longest and shortest periods; and yet it would be not easy to

show, that Connecticut or Rhode Island is better governed, or

enjoys a greater share of rational liberty, than South Carolina;

or that either the one or the other of these States is

distinguished in these respects, and by these causes, from the

States whose elections are different from both. In searching for

the grounds of this doctrine, I can discover but one, and that is

wholly inapplicable to our case. The important distinction so

well understood in America, between a Constitution established by

the people and unalterable by the government, and a law

established by the government and alterable by the government,

seems to have been little understood and less observed in any

other country. Wherever the supreme power of legislation has

resided, has been supposed to reside also a full power to change

the form of the government. Even in Great Britain, where the

principles of political and civil liberty have been most

discussed, and where we hear most of the rights of the

Constitution, it is maintained that the authority of the

Parliament is transcendent and uncontrollable, as well with

regard to the Constitution, as the ordinary objects of

legislative provision. They have accordingly, in several

instances, actually changed, by legislative acts, some of the

most fundamental articles of the government. They have in

particular, on several occasions, changed the period of election;

and, on the last occasion, not only introduced septennial in

place of triennial elections, but by the same act, continued

themselves in place four years beyond the term for which they

were elected by the people. An attention to these dangerous

practices has produced a very natural alarm in the votaries of

free government, of which frequency of elections is the

corner-stone; and has led them to seek for some security to

liberty, against the danger to which it is exposed. Where no

Constitution, paramount to the government, either existed or

could be obtained, no constitutional security, similar to that

established in the United States, was to be attempted. Some

other security, therefore, was to be sought for; and what better

security would the case admit, than that of selecting and

appealing to some simple and familiar portion of time, as a

standard for measuring the danger of innovations, for fixing the

national sentiment, and for uniting the patriotic exertions? The

most simple and familiar portion of time, applicable to the

subject was that of a year; and hence the doctrine has been

inculcated by a laudable zeal, to erect some barrier against the

gradual innovations of an unlimited government, that the advance

towards tyranny was to be calculated by the distance of departure

from the fixed point of annual elections. But what necessity can

there be of applying this expedient to a government limited, as

the federal government will be, by the authority of a paramount

Constitution? Or who will pretend that the liberties of the

people of America will not be more secure under biennial

elections, unalterably fixed by such a Constitution, than those

of any other nation would be, where elections were annual, or

even more frequent, but subject to alterations by the ordinary

power of the government? The second question stated is, whether

biennial elections be necessary or useful. The propriety of

answering this question in the affirmative will appear from

several very obvious considerations.

No man can be a

competent legislator who does not add to an upright intention and

a sound judgment a certain degree of knowledge of the subjects on

which he is to legislate. A part of this knowledge may be

acquired by means of information which lie within the compass of

men in private as well as public stations. Another part can only

be attained, or at least thoroughly attained, by actual

experience in the station which requires the use of it. The

period of service, ought, therefore, in all such cases, to bear

some proportion to the extent of practical knowledge requisite to

the due performance of the service. The period of legislative

service established in most of the States for the more numerous

branch is, as we have seen, one year. The question then may be

put into this simple form: does the period of two years bear no

greater proportion to the knowledge requisite for federal

legislation than one year does to the knowledge requisite for

State legislation? The very statement of the question, in this

form, suggests the answer that ought to be given to it. In a

single State, the requisite knowledge relates to the existing

laws which are uniform throughout the State, and with which all

the citizens are more or less conversant; and to the general

affairs of the State, which lie within a small compass, are not

very diversified, and occupy much of the attention and

conversation of every class of people. The great theatre of the

United States presents a very different scene. The laws are so

far from being uniform, that they vary in every State; whilst the

public affairs of the Union are spread throughout a very

extensive region, and are extremely diversified by t e local

affairs connected with them, and can with difficulty be correctly

learnt in any other place than in the central councils to which a

knowledge of them will be brought by the representatives of every

part of the empire. Yet some knowledge of the affairs, and even

of the laws, of all the States, ought to be possessed by the

members from each of the States. How can foreign trade be

properly regulated by uniform laws, without some acquaintance

with the commerce, the ports, the usages, and the regulatious of

the different States? How can the trade between the different

States be duly regulated, without some knowledge of their

relative situations in these and other respects? How can taxes

be judiciously imposed and effectually collected, if they be not

accommodated to the different laws and local circumstances

relating to these objects in the different States? How can

uniform regulations for the militia be duly provided, without a

similar knowledge of many internal circumstances by which the

States are distinguished from each other? These are the

principal objects of federal legislation, and suggest most

forcibly the extensive information which the representatives

ought to acquire. The other interior objects will require a

proportional degree of information with regard to them. It is

true that all these difficulties will, by degrees, be very much

diminished. The most laborious task will be the proper

inauguration of the government and the primeval formation of a

federal code. Improvements on the first draughts will every year

become both easier and fewer. Past transactions of the

government will be a ready and accurate source of information to

new members. The affairs of the Union will become more and more

objects of curiosity and conversation among the citizens at

large. And the increased intercourse among those of different

States will contribute not a little to diffuse a mutual knowledge

of their affairs, as this again will contribute to a general

assimilation of their manners and laws. But with all these

abatements, the business of federal legislation must continue so

far to exceed, both in novelty and difficulty, the legislative

business of a single State, as to justify the longer period of

service assigned to those who are to transact it. A branch of

knowledge which belongs to the acquirements of a federal

representative, and which has not been mentioned is that of

foreign affairs. In regulating our own commerce he ought to be

not only acquainted with the treaties between the United States

and other nations, but also with the commercial policy and laws

of other nations. He ought not to be altogether ignorant of the

law of nations; for that, as far as it is a proper object of

municipal legislation, is submitted to the federal government.

And although the House of Representatives is not immediately to

participate in foreign negotiations and arrangements, yet from

the necessary connection between the several branches of public

affairs, those particular branches will frequently deserve

attention in the ordinary course of legislation, and will

sometimes demand particular legislative sanction and

co-operation. Some portion of this knowledge may, no doubt, be

acquired in a man's closet; but some of it also can only be

derived from the public sources of information; and all of it

will be acquired to best effect by a practical attention to the

subject during the period of actual service in the legislature.

There are other considerations, of less importance, perhaps, but

which are not unworthy of notice. The distance which many of the

representatives will be obliged to travel, and the arrangements

rendered necessary by that circumstance, might be much more

serious objections with fit men to this service, if limited to a

single year, than if extended to two years. No argument can be

drawn on this subject, from the case of the delegates to the

existing Congress. They are elected annually, it is true; but

their re-election is considered by the legislative assemblies

almost as a matter of course. The election of the representatives

by the people would not be governed by the same principle. A few

of the members, as happens in all such assemblies, will possess

superior talents; will, by frequent reelections, become members

of long standing; will be thoroughly masters of the public

business, and perhaps not unwilling to avail themselves of those

advantages. The greater the proportion of new members, and the

less the information of the bulk of the members the more apt will

they be to fall into the snares that may be laid for them. This

remark is no less applicable to the relation which will subsist

between the House of Representatives and the Senate. It is an

inconvenience mingled with the advantages of our frequent

elections even in single States, where they are large, and hold

but one legislative session in a year, that spurious elections

cannot be investigated and annulled in time for the decision to

have its due effect. If a return can be obtained, no matter by

what unlawful means, the irregular member, who takes his seat of

course, is sure of holding it a sufficient time to answer his

purposes. Hence, a very pernicious encouragement is given to the

use of unlawful means, for obtaining irregular returns. Were

elections for the federal legislature to be annual, this practice

might become a very serious abuse, particularly in the more

distant States. Each house is, as it necessarily must be, the

judge of the elections, qualifications, and returns of its

members; and whatever improvements may be suggested by

experience, for simplifying and accelerating the process in

disputed cases, so great a portion of a year would unavoidably

elapse, before an illegitimate member could be dispossessed of

his seat, that the prospect of such an event would be little

check to unfair and illicit means of obtaining a seat. All these

considerations taken together warrant us in affirming, that

biennial elections will be as useful to the affairs of the public

as we have seen that they will be safe to the liberty of the

people. PUBLIUS.

 

FEDERALIST No. 54

The Apportionment of Members Among the States

From the New York Packet. Tuesday, February 12, 1788.

HAMILTON OR MADISON

To the People of the State of New York:

THE next view which I shall take of the House of Representatives

relates to the appointment of its members to the several States

which is to be determined by the same rule with that of direct

taxes.

It is not contended that the number of people in each

State ought not to be the standard for regulating the proportion

of those who are to represent the people of each State. The

establishment of the same rule for the appointment of taxes, will

probably be as little contested; though the rule itself in this

case, is by no means founded on the same principle. In the former

case, the rule is understood to refer to the personal rights of

the people, with which it has a natural and universal connection.

In the latter, it has reference to the proportion of wealth, of

which it is in no case a precise measure, and in ordinary cases a

very unfit one. But notwithstanding the imperfection of the rule

as applied to the relative wealth and contributions of the

States, it is evidently the least objectionable among the

practicable rules, and had too recently obtained the general

sanction of America, not to have found a ready preference with

the convention. All this is admitted, it will perhaps be said;

but does it follow, from an admission of numbers for the measure

of representation, or of slaves combined with free citizens as a

ratio of taxation, that slaves ought to be included in the

numerical rule of representation? Slaves are considered as

property, not as persons. They ought therefore to be comprehended

in estimates of taxation which are founded on property, and to be

excluded from representation which is regulated by a census of

persons. This is the objection, as I understand it, stated in its

full force. I shall be equally candid in stating the reasoning

which may be offered on the opposite side. ``We subscribe to the

doctrine,'' might one of our Southern brethren observe, ``that

representation relates more immediately to persons, and taxation

more immediately to property, and we join in the application of

this distinction to the case of our slaves. But we must deny the

fact, that slaves are considered merely as property, and in no

respect whatever as persons. The true state of the case is, that

they partake of both these qualities: being considered by our

laws, in some respects, as persons, and in other respects as

property. In being compelled to labor, not for himself, but for

a master; in being vendible by one master to another master; and

in being subject at all times to be restrained in his liberty and

chastised in his body, by the capricious will of another, the

slave may appear to be degraded from the human rank, and classed

with those irrational animals which fall under the legal

denomination of property. In being protected, on the other hand,

in his life and in his limbs, against the violence of all

others, even the master of his labor and his liberty; and in

being punishable himself for all violence committed against

others, the slave is no less evidently regarded by the law as a

member of the society, not as a part of the irrational creation;

as a moral person, not as a mere article of property. The

federal Constitution, therefore, decides with great propriety on

the case of our slaves, when it views them in the mixed character

of persons and of property. This is in fact their true

character. It is the character bestowed on them by the laws

under which they live; and it will not be denied, that these are

the proper criterion; because it is only under the pretext that

the laws have transformed the negroes into subjects of property,

that a place is disputed them in the computation of numbers; and

it is admitted, that if the laws were to restore the rights which

have been taken away, the negroes could no longer be refused an

equal share of representation with the other inhabitants. ``This

question may be placed in another light. It is agreed on all

sides, that numbers are the best scale of wealth and taxation, as

they are the only proper scale of representation. Would the

convention have been impartial or consistent, if they had

rejected the slaves from the list of inhabitants, when the shares

of representation were to be calculated, and inserted them on the

lists when the tariff of contributions was to be adjusted? Could

it be reasonably expected, that the Southern States would concur

in a system, which considered their slaves in some degree as men,

when burdens were to be imposed, but refused to consider them in

the same light, when advantages were to be conferred? Might not

some surprise also be expressed, that those who reproach the

Southern States with the barbarous policy of considering as

property a part of their human brethren, should themselves

contend, that the government to which all the States are to be

parties, ought to consider this unfortunate race more completely

in the unnatural light of property, than the very laws of which

they complain? ``It may be replied, perhaps, that slaves are not

included in the estimate of representatives in any of the States

possessing them. They neither vote themselves nor increase the

votes of their masters. Upon what principle, then, ought they to

be taken into the federal estimate of representation? In

rejecting them altogether, the Constitution would, in this

respect, have followed the very laws which have been appealed to

as the proper guide. ``This objection is repelled by a single

abservation. It is a fundamental principle of the proposed

Constitution, that as the aggregate number of representatives

allotted to the several States is to be determined by a federal

rule, founded on the aggregate number of inhabitants, so the

right of choosing this allotted number in each State is to be

exercised by such part of the inhabitants as the State itself may

designate. The qualifications on which the right of suffrage

depend are not, perhaps, the same in any two States. In some of

the States the difference is very material. In every State, a

certain proportion of inhabitants are deprived of this right by

the constitution of the State, who will be included in the census

by which the federal Constitution apportions the representatives.

In this point of view the Southern States might retort the

complaint, by insisting that the principle laid down by the

convention required that no regard should be had to the policy of

particular States towards their own inhabitants; and

consequently, that the slaves, as inhabitants, should have been

admitted into the census according to their full number, in like

manner with other inhabitants, who, by the policy of other

States, are not admitted to all the rights of citizens. A

rigorous adherence, however, to this principle, is waived by

those who would be gainers by it. All that they ask is that

equal moderation be shown on the other side. Let the case of the

slaves be considered, as it is in truth, a peculiar one. Let the

compromising expedient of the Constitution be mutually adopted,

which regards them as inhabitants, but as debased by servitude

below the equal level of free inhabitants, which regards the

SLAVE as divested of two fifths of the MAN. ``After all, may not

another ground be taken on which this article of the

Constitution will admit of a still more ready defense? We have

hitherto proceeded on the idea that representation related to

persons only, and not at all to property. But is it a just idea?

Government is instituted no less for protection of the property,

than of the persons, of individuals. The one as well as the

other, therefore, may be considered as represented by those who

are charged with the government. Upon this principle it is, that

in several of the States, and particularly in the State of New

York, one branch of the government is intended more especially to

be the guardian of property, and is accordingly elected by that

part of the society which is most interested in this object of

government. In the federal Constitution, this policy does not

prevail. The rights of property are committed into the same hands

with the personal rights. Some attention ought, therefore, to be

paid to property in the choice of those hands. ``For another

reason, the votes allowed in the federal legislature to the

people of each State, ought to bear some proportion to the

comparative wealth of the States. States have not, like

individuals, an influence over each other, arising from superior

advantages of fortune. If the law allows an opulent citizen but a

single vote in the choice of his representative, the respect and

consequence which he derives from his fortunate situation very

frequently guide the votes of others to the objects of his

choice; and through this imperceptible channel the rights of

property are conveyed into the public representation. A State

possesses no such influence over other States. It is not probable

that the richest State in the Confederacy will ever influence the

choice of a single representative in any other State. Nor will

the representatives of the larger and richer States possess any

other advantage in the federal legislature, over the

representatives of other States, than what may result from their

superior number alone. As far, therefore, as their superior

wealth and weight may justly entitle them to any advantage, it

ought to be secured to them by a superior share of

representation. The new Constitution is, in this respect,

materially different from the existing Confederation, as well as

from that of the United Netherlands, and other similar

confederacies. In each of the latter, the efficacy of the

federal resolutions depends on the subsequent and voluntary

resolutions of the states composing the union. Hence the states,

though possessing an equal vote in the public councils, have an

unequal influence, corresponding with the unequal importance of

these subsequent and voluntary resolutions. Under the proposed

Constitution, the federal acts will take effect without the

necessary intervention of the individual States. They will depend

merely on the majority of votes in the federal legislature, and

consequently each vote, whether proceeding from a larger or

smaller State, or a State more or less wealthy or powerful, will

have an equal weight and efficacy: in the same manner as the

votes individually given in a State legislature, by the

representatives of unequal counties or other districts, have

each a precise equality of value and effect; or if there be any

difference in the case, it proceeds from the difference in the

personal character of the individual representative, rather than

from any regard to the extent of the district from which he

comes. ''Such is the reasoning which an advocate for the

Southern interests might employ on this subject; and although it

may appear to be a little strained in some points, yet, on the

whole, I must confess that it fully reconciles me to the scale of

representation which the convention have established. In one

respect, the establishment of a common measure for representation

and taxation will have a very salutary effect. As the accuracy

of the census to be obtained by the Congress will necessarily

depend, in a considerable degree on the disposition, if not on

the co-operation, of the States, it is of great importance that

the States should feel as little bias as possible, to swell or to

reduce the amount of their numbers. Were their share of

representation alone to be governed by this rule, they would have

an interest in exaggerating their inhabitants. Were the rule to

decide their share of taxation alone, a contrary temptation would

prevail. By extending the rule to both objects, the States will

have opposite interests, which will control and balance each

other, and produce the requisite impartiality. PUBLIUS.

 

FEDERALIST No. 55

The Total Number of the House of Representatives

From the New York Packet. Friday, February 15, 1788.

HAMILTON OR MADISON

To the People of the State of New York:

THE number of which the House of Representatives is to consist,

forms another and a very interesting point of view, under which

this branch of the federal legislature may be contemplated.

Scarce any article, indeed, in the whole Constitution seems to be

rendered more worthy of attention, by the weight of character and

the apparent force of argument with which it has been assailed.

The charges exhibited against it are, first, that so small a

number of representatives will be an unsafe depositary of the

public interests; secondly, that they will not possess a proper

knowledge of the local circumstances of their numerous

constituents; thirdly, that they will be taken from that class of

citizens which will sympathize least with the feelings of the

mass of the people, and be most likely to aim at a permanent

elevation of the few on the depression of the many; fourthly,

that defective as the number will be in the first instance, it

will be more and more disproportionate, by the increase of the

people, and the obstacles which will prevent a correspondent

increase of the representatives. In general it may be remarked on

this subject, that no political problem is less susceptible of a

precise solution than that which relates to the number most

convenient for a representative legislature; nor is there any

point on which the policy of the several States is more at

variance, whether we compare their legislative assemblies

directly with each other, or consider the proportions which they

respectively bear to the number of their constituents. Passing

over the difference between the smallest and largest States, as

Delaware, whose most numerous branch consists of twenty-one

representatives, and Massachusetts, where it amounts to between

three and four hundred, a very considerable difference is

observable among States nearly equal in population. The number of

representatives in Pennsylvania is not more than one fifth of

that in the State last mentioned. New York, whose population is

to that of South Carolina as six to five, has little more than

one third of the number of representatives. As great a disparity

prevails between the States of Georgia and Delaware or Rhode

Island. In Pennsylvania, the representatives do not bear a

greater proportion to their constituents than of one for every

four or five thousand. In Rhode Island, they bear a proportion of

at least one for every thousand. And according to the

constitution of Georgia, the proportion may be carried to one to

every ten electors; and must unavoidably far exceed the

proportion in any of the other States. Another general remark to

be made is, that the ratio between the representatives and the

people ought not to be the same where the latter are very

numerous as where they are very few. Were the representatives in

Virginia to be regulated by the standard in Rhode Island, they

would, at this time, amount to between four and five hundred; and

twenty or thirty years hence, to a thousand. On the other hand,

the ratio of Pennsylvania, if applied to the State of Delaware,

would reduce the representative assembly of the latter to seven

or eight members. Nothing can be more fallacious than to found

our political calculations on arithmetical principles. Sixty or

seventy men may be more properly trusted with a given degree of

power than six or seven. But it does not follow that six or seven

hundred would be proportionably a better depositary. And if we

carry on the supposition to six or seven thousand, the whole

reasoning ought to be reversed. The truth is, that in all cases a

certain number at least seems to be necessary to secure the

benefits of free consultation and discussion, and to guard

against too easy a combination for improper purposes; as, on the

other hand, the number ought at most to be kept within a certain

limit, in order to avoid the confusion and intemperance of a

multitude. In all very numerous assemblies, of whatever character

composed, passion never fails to wrest the sceptre from reason.

Had every Athenian citizen been a Socrates, every Athenian

assembly would still have been a mob.

It is necessary also to

recollect here the observations which were applied to the case of

biennial elections. For the same reason that the limited powers

of the Congress, and the control of the State legislatures,

justify less frequent elections than the public safely might

otherwise require, the members of the Congress need be less

numerous than if they possessed the whole power of legislation,

and were under no other than the ordinary restraints of other

legislative bodies. With these general ideas in our mind, let us

weigh the objections which have been stated against the number of

members proposed for the House of Representatives. It is said, in

the first place, that so small a number cannot be safely trusted

with so much power. The number of which this branch of the

legislature is to consist, at the outset of the government, will

be sixtyfive. Within three years a census is to be taken, when

the number may be augmented to one for every thirty thousand

inhabitants; and within every successive period of ten years the

census is to be renewed, and augmentations may continue to be

made under the above limitation. It will not be thought an

extravagant conjecture that the first census will, at the rate of

one for every thirty thousand, raise the number of

representatives to at least one hundred. Estimating the negroes

in the proportion of three fifths, it can scarcely be doubted

that the population of the United States will by that time, if it

does not already, amount to three millions. At the expiration of

twenty-five years, according to the computed rate of increase,

the number of representatives will amount to two hundred, and of

fifty years, to four hundred. This is a number which, I presume,

will put an end to all fears arising from the smallness of the

body. I take for granted here what I shall, in answering the

fourth objection, hereafter show, that the number of

representatives will be augmented from time to time in the

manner provided by the Constitution. On a contrary supposition, I

should admit the objection to have very great weight indeed. The

true question to be decided then is, whether the smallness of the

number, as a temporary regulation, be dangerous to the public

liberty? Whether sixty-five members for a few years, and a

hundred or two hundred for a few more, be a safe depositary for a

limited and well-guarded power of legislating for the United

States? I must own that I could not give a negative answer to

this question, without first obliterating every impression which

I have received with regard to the present genius of the people

of America, the spirit which actuates the State legislatures, and

the principles which are incorporated with the political

character of every class of citizens I am unable to conceive that

the people of America, in their present temper, or under any

circumstances which can speedily happen, will choose, and every

second year repeat the choice of, sixty-five or a hundred men who

would be disposed to form and pursue a scheme of tyranny or

treachery. I am unable to conceive that the State legislatures,

which must feel so many motives to watch, and which possess so

many means of counteracting, the federal legislature, would fail

either to detect or to defeat a conspiracy of the latter against

the liberties of their common constituents. I am equally unable

to conceive that there are at this time, or can be in any short

time, in the United States, any sixty-five or a hundred men

capable of recommending themselves to the choice of the people at

large, who would either desire or dare, within the short space of

two years, to betray the solemn trust committed to them. What

change of circumstances, time, and a fuller population of our

country may produce, requires a prophetic spirit to declare,

which makes no part of my pretensions. But judging from the

circumstances now before us, and from the probable state of them

within a moderate period of time, I must pronounce that the

liberties of America cannot be unsafe in the number of hands

proposed by the federal Constitution. From what quarter can the

danger proceed? Are we afraid of foreign gold? If foreign gold

could so easily corrupt our federal rulers and enable them to

ensnare and betray their constituents, how has it happened that

we are at this time a free and independent nation? The Congress

which conducted us through the Revolution was a less numerous

body than their successors will be; they were not chosen by, nor

responsible to, their fellowcitizens at large; though appointed

from year to year, and recallable at pleasure, they were

generally continued for three years, and prior to the

ratification of the federal articles, for a still longer term.

They held their consultations always under the veil of secrecy;

they had the sole transaction of our affairs with foreign

nations; through the whole course of the war they had the fate of

their country more in their hands than it is to be hoped will

ever be the case with our future representatives; and from the

greatness of the prize at stake, and the eagerness of the party

which lost it, it may well be supposed that the use of other

means than force would not have been scrupled. Yet we know by

happy experience that the public trust was not betrayed; nor has

the purity of our public councils in this particular ever

suffered, even from the whispers of calumny. Is the danger

apprehended from the other branches of the federal government?

But where are the means to be found by the President, or the

Senate, or both? Their emoluments of office, it is to be

presumed, will not, and without a previous corruption of the

House of Representatives cannot, more than suffice for very

different purposes; their private fortunes, as they must allbe

American citizens, cannot possibly be sources of danger. The

only means, then, which they can possess, will be in the

dispensation of appointments. Is it here that suspicion rests

her charge? Sometimes we are told that this fund of corruption

is to be exhausted by the President in subduing the virtue of the

Senate. Now, the fidelity of the other House is to be the

victim. The improbability of such a mercenary and perfidious

combination of the several members of government, standing on as

different foundations as republican principles will well admit,

and at the same time accountable to the society over which they

are placed, ought alone to quiet this apprehension. But,

fortunately, the Constitution has provided a still further

safeguard. The members of the Congress are rendered ineligible

to any civil offices that may be created, or of which the

emoluments may be increased, during the term of their election.

No offices therefore can be dealt out to the existing members but

such as may become vacant by ordinary casualties: and to suppose

that these would be sufficient to purchase the guardians of the

people, selected by the people themselves, is to renounce every

rule by which events ought to be calculated, and to substitute an

indiscriminate and unbounded jealousy, with which all reasoning

must be vain. The sincere friends of liberty, who give

themselves up to the extravagancies of this passion, are not

aware of the injury they do their own cause. As there is a

degree of depravity in mankind which requires a certain degree of

circumspection and distrust, so there are other qualities in

human nature which justify a certain portion of esteem and

confidence. Republican government presupposes the existence of

these qualities in a higher degree than any other form. Were the

pictures which have been drawn by the political jealousy of some

among us faithful likenesses of the human character, the

inference would be, that there is not sufficient virtue among men

for self-government; and that nothing less than the chains of

despotism can restrain them from destroying and devouring one

another. PUBLIUS.

 

FEDERALIST No. 56

The Same Subject Continued (The Total Number of the House of Representatives)

From the New York Packet. Tuesday, February 19, 1788.

HAMILTON OR MADISON

To the People of the State of New York:

THE SECOND charge against the House of Representatives is, that

it will be too small to possess a due knowledge of the interests

of its constituents. As this objection evidently proceeds from a

comparison of the proposed number of representatives with the

great extent of the United States, the number of their

inhabitants, and the diversity of their interests, without taking

into view at the same time the circumstances which will

distinguish the Congress from other legislative bodies, the best

answer that can be given to it will be a brief explanation of

these peculiarities. It is a sound and important principle that

the representative ought to be acquainted with the interests and

circumstances of his constituents. But this principle can extend

no further than to those circumstances and interests to which the

authority and care of the representative relate. An ignorance of

a variety of minute and particular objects, which do not lie

within the compass of legislation, is consistent with every

attribute necessary to a due performance of the legislative

trust. In determining the extent of information required in the

exercise of a particular authority, recourse then must be had to

the objects within the purview of that authority. What are to be

the objects of federal legislation? Those which are of most

importance, and which seem most to require local knowledge, are

commerce, taxation, and the militia. A proper regulation of

commerce requires much information, as has been elsewhere

remarked; but as far as this information relates to the laws and

local situation of each individual State, a very few

representatives would be very sufficient vehicles of it to the

federal councils. Taxation will consist, in a great measure, of

duties which will be involved in the regulation of commerce. So

far the preceding remark is applicable to this object. As far as

it may consist of internal collections, a more diffusive

knowledge of the circumstances of the State may be necessary. But

will not this also be possessed in sufficient degree by a very

few intelligent men, diffusively elected within the State? Divide

the largest State into ten or twelve districts, and it will be

found that there will be no peculiar local interests in either,

which will not be within the knowledge of the representative of

the district. Besides this source of information, the laws of the

State, framed by representatives from every part of it, will be

almost of themselves a sufficient guide. In every State there

have been made, and must continue to be made, regulations on this

subject which will, in many cases, leave little more to be done

by the federal legislature, than to review the different laws,

and reduce them in one general act. A skillful individual in his

closet with all the local codes before him, might compile a law

on some subjects of taxation for the whole union, without any aid

from oral information, and it may be expected that whenever

internal taxes may be necessary, and particularly in cases

requiring uniformity throughout the States, the more simple

objects will be preferred. To be fully sensible of the facility

which will be given to this branch of federal legislation by the

assistance of the State codes, we need only suppose for a moment

that this or any other State were divided into a number of parts,

each having and exercising within itself a power of local

legislation. Is it not evident that a degree of local information

and preparatory labor would be found in the several volumes of

their proceedings, which would very much shorten the labors of

the general legislature, and render a much smaller number of

members sufficient for it? The federal councils will derive great

advantage from another circumstance. The representatives of each

State will not only bring with them a considerable knowledge of

its laws, and a local knowledge of their respective districts,

but will probably in all cases have been members, and may even at

the very time be members, of the State legislature, where all the

local information and interests of the State are assembled, and

from whence they may easily be conveyed by a very few hands into

the legislature of the United States. The observations made on

the subject of taxation apply with greater force to the case of

the militia. For however different the rules of discipline may be

in different States, they are the same throughout each particular

State; and depend on circumstances which can differ but little in

different parts of the same State. The attentive reader will

discern that the reasoning here used, to prove the sufficiency of

a moderate number of representatives, does not in any respect

contradict what was urged on another occasion with regard to the

extensive information which the representatives ought to possess,

and the time that might be necessary for acquiring it. This

information, so far as it may relate to local objects, is

rendered necessary and difficult, not by a difference of laws and

local circumstances within a single State, but of those among

different States. Taking each State by itself, its laws are the

same, and its interests but little diversified. A few men,

therefore, will possess all the knowledge requisite for a proper

representation of them. Were the interests and affairs of each

individual State perfectly simple and uniform, a knowledge of

them in one part would involve a knowledge of them in every

other, and the whole State might be competently represented by a

single member taken from any part of it. On a comparison of the

different States together, we find a great dissimilarity in their

laws, and in many other circumstances connected with the objects

of federal legislation, with all of which the federal

representatives ought to have some acquaintance. Whilst a few

representatives, therefore, from each State, may bring with them

a due knowledge of their own State, every representative will

have much information to acquire concerning all the other States.

The changes of time, as was formerly remarked, on the comparative

situation of the different States, will have an assimilating

effect. The effect of time on the internal affairs of the States,

taken singly, will be just the contrary. At present some of the

States are little more than a society of husbandmen. Few of them

have made much progress in those branches of industry which give

a variety and complexity to the affairs of a nation. These,

however, will in all of them be the fruits of a more advanced

population, and will require, on the part of each State, a fuller

representation. The foresight of the convention has accordingly

taken care that the progress of population may be accompanied

with a proper increase of the representative branch of the

government. The experience of Great Britain, which presents to

mankind so many political lessons, both of the monitory and

exemplary kind, and which has been frequently consulted in the

course of these inquiries, corroborates the result of the

reflections which we have just made. The number of inhabitants in

the two kingdoms of England and Scotland cannot be stated at less

than eight millions. The representatives of these eight millions

in the House of Commons amount to five hundred and fifty-eight.

Of this number, one ninth are elected by three hundred and

sixty-four persons, and one half, by five thousand seven hundred

and twenty-three persons. 1 It cannot be supposed that the half

thus elected, and who do not even reside among the people at

large, can add any thing either to the security of the people

against the government, or to the knowledge of their

circumstances and interests in the legislative councils. On the

contrary, it is notorious, that they are more frequently the

representatives and instruments of the executive magistrate, than

the guardians and advocates of the popular rights. They might

therefore, with great propriety, be considered as something more

than a mere deduction from the real representatives of the

nation. We will, however, consider them in this light alone, and

will not extend the deduction to a considerable number of

others, who do not reside among their constitutents, are very

faintly connected with them, and have very little particular

knowledge of their affairs. With all these concessions, two

hundred and seventy-nine persons only will be the depository of

the safety, interest, and happiness of eight millions that is to

say, there will be one representative only to maintain the rights

and explain the situation OF TWENTY-EIGHT THOUSAND SIX HUNDRED

AND SEVENTY constitutents, in an assembly exposed to the whole

force of executive influence, and extending its authority to

every object of legislation within a nation whose affairs are in

the highest degree diversified and complicated. Yet it is very

certain, not only that a valuable portion of freedom has been

preserved under all these circumstances, but that the defects in

the British code are chargeable, in a very small proportion, on

the ignorance of the legislature concerning the circumstances of

the people. Allowing to this case the weight which is due to it,

and comparing it with that of the House of Representatives as

above explained it seems to give the fullest assurance, that a

representative for every THIRTY THOUSAND INHABITANTS will render

the latter both a safe and competent guardian of the interests

which will be confided to it. PUBLIUS. Burgh's ``Political

Disquisitions. ''

 

FEDERALIST No. 57

The Alleged Tendency of the New Plan to Elevate the Few at the

Expense of the Many Considered in Connection with Representation

From the New York Packet. Tuesday, February 19, 1788.

HAMILTON OR MADISON

To the People of the State of New York:

THE THIRD charge against the House of Representatives is, that it

will be taken from that class of citizens which will have least

sympathy with the mass of the people, and be most likely to aim

at an ambitious sacrifice of the many to the aggrandizement of

the few. Of all the objections which have been framed against the

federal Constitution, this is perhaps the most extraordinary.

Whilst the objection itself is levelled against a pretended

oligarchy, the principle of it strikes at the very root of

republican government. The aim of every political constitution

is, or ought to be, first to obtain for rulers men who possess

most wisdom to discern, and most virtue to pursue, the common

good of the society; and in the next place, to take the most

effectual precautions for keeping them virtuous whilst they

continue to hold their public trust. The elective mode of

obtaining rulers is the characteristic policy of republican

government. The means relied on in this form of government for

preventing their degeneracy are numerous and various. The most

effectual one, is such a limitation of the term of appointments

as will maintain a proper responsibility to the people. Let me

now ask what circumstance there is in the constitution of the

House of Representatives that violates the principles of

republican government, or favors the elevation of the few on the

ruins of the many? Let me ask whether every circumstance is not,

on the contrary, strictly conformable to these principles, and

scrupulously impartial to the rights and pretensions of every

class and description of citizens? Who are to be the electors of

the federal representatives? Not the rich, more than the poor;

not the learned, more than the ignorant; not the haughty heirs of

distinguished names, more than the humble sons of obscurity and

unpropitious fortune. The electors are to be the great body of

the people of the United States. They are to be the same who

exercise the right in every State of electing the corresponding

branch of the legislature of the State. Who are to be the objects

of popular choice? Every citizen whose merit may recommend him to

the esteem and confidence of his country. No qualification of

wealth, of birth, of religious faith, or of civil profession is

permitted to fetter the judgement or disappoint the inclination

of the people. If we consider the situation of the men on whom

the free suffrages of their fellow-citizens may confer the

representative trust, we shall find it involving every security

which can be devised or desired for their fidelity to their

constituents. In the first place, as they will have been

distinguished by the preference of their fellow-citizens, we are

to presume that in general they will be somewhat distinguished

also by those qualities which entitle them to it, and which

promise a sincere and scrupulous regard to the nature of their

engagements. In the second place, they will enter into the public

service under circumstances which cannot fail to produce a

temporary affection at least to their constituents. There is in

every breast a sensibility to marks of honor, of favor, of

esteem, and of confidence, which, apart from all considerations

of interest, is some pledge for grateful and benevolent returns.

Ingratitude is a common topic of declamation against human

nature; and it must be confessed that instances of it are but too

frequent and flagrant, both in public and in private life. But

the universal and extreme indignation which it inspires is itself

a proof of the energy and prevalence of the contrary sentiment.

In the third place, those ties which bind the representative to

his constituents are strengthened by motives of a more selfish

nature. His pride and vanity attach him to a form of government

which favors his pretensions and gives him a share in its honors

and distinctions. Whatever hopes or projects might be entertained

by a few aspiring characters, it must generally happen that a

great proportion of the men deriving their advancement from their

influence with the people, would have more to hope from a

preservation of the favor, than from innovations in the

government subversive of the authority of the people. All these

securities, however, would be found very insufficient without the

restraint of frequent elections. Hence, in the fourth place, the

House of Representatives is so constituted as to support in the

members an habitual recollection of their dependence on the

people. Before the sentiments impressed on their minds by the

mode of their elevation can be effaced by the exercise of power,

they will be compelled to anticipate the moment when their power

is to cease, when their exercise of it is to be reviewed, and

when they must descend to the level from which they were raised;

there forever to remain unless a faithful discharge of their

trust shall have established their title to a renewal of it. I

will add, as a fifth circumstance in the situation of the House

of Representatives, restraining them from oppressive measures,

that they can make no law which will not have its full operation

on themselves and their friends, as well as on the great mass of

the society. This has always been deemed one of the strongest

bonds by which human policy can connect the rulers and the people

together. It creates between them that communion of interests and

sympathy of sentiments, of which few governments have furnished

examples; but without which every government degenerates into

tyranny. If it be asked, what is to restrain the House of

Representatives from making legal discriminations in favor of

themselves and a particular class of the society? I answer: the

genius of the whole system; the nature of just and constitutional

laws; and above all, the vigilant and manly spirit which actuates

the people of America, a spirit which nourishes freedom, and in

return is nourished by it. If this spirit shall ever be so far

debased as to tolerate a law not obligatory on the legislature,

as well as on the people, the people will be prepared to tolerate

any thing but liberty. Such will be the relation between the

House of Representatives and their constituents. Duty, gratitude,

interest, ambition itself, are the chords by which they will be

bound to fidelity and sympathy with the great mass of the people.

It is possible that these may all be insufficient to control the

caprice and wickedness of man. But are they not all that

government will admit, and that human prudence can devise? Are

they not the genuine and the characteristic means by which

republican government provides for the liberty and happiness of

the people? Are they not the identical means on which every State

government in the Union relies for the attainment of these

important ends? What then are we to understand by the objection

which this paper has combated? What are we to say to the men who

profess the most flaming zeal for republican government, yet

boldly impeach the fundamental principle of it; who pretend to be

champions for the right and the capacity of the people to choose

their own rulers, yet maintain that they will prefer those only

who will immediately and infallibly betray the trust committed to

them? Were the objection to be read by one who had not seen the

mode prescribed by the Constitution for the choice of

representatives, he could suppose nothing less than that some

unreasonable qualification of property was annexed to the right

of suffrage; or that the right of eligibility was limited to

persons of particular families or fortunes; or at least that the

mode prescribed by the State constitutions was in some respect or

other, very grossly departed from. We have seen how far such a

supposition would err, as to the two first points. Nor would it,

in fact, be less erroneous as to the last. The only difference

discoverable between the two cases is, that each representative

of the United States will be elected by five or six thousand

citizens; whilst in the individual States, the election of a

representative is left to about as many hundreds. Will it be

pretended that this difference is sufficient to justify an

attachment to the State governments, and an abhorrence to the

federal government? If this be the point on which the objection

turns, it deserves to be examined. Is it supported by REASON?

This cannot be said, without maintaining that five or six

thousand citizens are less capable of choosing a fit

representative, or more liable to be corrupted by an unfit one,

than five or six hundred. Reason, on the contrary, assures us,

that as in so great a number a fit representative would be most

likely to be found, so the choice would be less likely to be

diverted from him by the intrigues of the ambitious or the

ambitious or the bribes of the rich. Is the CONSEQUENCE from

this doctrine admissible? If we say that five or six hundred

citizens are as many as can jointly exercise their right of

suffrage, must we not deprive the people of the immediate choice

of their public servants, in every instance where the

administration of the government does not require as many of them

as will amount to one for that number of citizens? Is the

doctrine warranted by FACTS? It was shown in the last paper, that

the real representation in the British House of Commons very

little exceeds the proportion of one for every thirty thousand

inhabitants. Besides a variety of powerful causes not existing

here, and which favor in that country the pretensions of rank and

wealth, no person is eligible as a representative of a county,

unless he possess real estate of the clear value of six hundred

pounds sterling per year; nor of a city or borough, unless he

possess a like estate of half that annual value. To this

qualification on the part of the county representatives is added

another on the part of the county electors, which restrains the

right of suffrage to persons having a freehold estate of the

annual value of more than twenty pounds sterling, according to

the present rate of money. Notwithstanding these unfavorable

circumstances, and notwithstanding some very unequal laws in the

British code, it cannot be said that the representatives of the

nation have elevated the few on the ruins of the many. But we

need not resort to foreign experience on this subject. Our own

is explicit and decisive. The districts in New Hampshire in

which the senators are chosen immediately by the people, are

nearly as large as will be necessary for her representatives in

the Congress. Those of Massachusetts are larger than will be

necessary for that purpose; and those of New York still more so.

In the last State the members of Assembly for the cities and

counties of New York and Albany are elected by very nearly as

many voters as will be entitled to a representative in the

Congress, calculating on the number of sixty-five representatives

only. It makes no difference that in these senatorial districts

and counties a number of representatives are voted for by each

elector at the same time. If the same electors at the same time

are capable of choosing four or five representatives, they cannot

be incapable of choosing one. Pennsylvania is an additional

example. Some of her counties, which elect her State

representatives, are almost as large as her districts will be by

which her federal representatives will be elected. The city of

Philadelphia is supposed to contain between fifty and sixty

thousand souls. It will therefore form nearly two districts for

the choice of federal representatives. It forms, however, but

one county, in which every elector votes for each of its

representatives in the State legislature. And what may appear to

be still more directly to our purpose, the whole city actually

elects a SINGLE MEMBER for the executive council. This is the

case in all the other counties of the State. Are not these facts

the most satisfactory proofs of the fallacy which has been

employed against the branch of the federal government under

consideration? Has it appeared on trial that the senators of New

Hampshire, Massachusetts, and New York, or the executive council

of Pennsylvania, or the members of the Assembly in the two last

States, have betrayed any peculiar disposition to sacrifice the

many to the few, or are in any respect less worthy of their

places than the representatives and magistrates appointed in

other States by very small divisions of the people? But there are

cases of a stronger complexion than any which I have yet quoted.

One branch of the legislature of Connecticut is so constituted

that each member of it is elected by the whole State. So is the

governor of that State, of Massachusetts, and of this State, and

the president of New Hampshire. I leave every man to decide

whether the result of any one of these experiments can be said to

countenance a suspicion, that a diffusive mode of choosing

representatives of the people tends to elevate traitors and to

undermine the public liberty. PUBLIUS.

 

FEDERALIST No. 58

Objection That The Number of Members Will Not Be Augmented as the

Progress of Population Demands Considered

MADISON

To the People of the State of New York:

THE remaining charge against the House of Representatives, which

I am to examine, is grounded on a supposition that the number of

members will not be augmented from time to time, as the progress

of population may demand. It has been admitted, that this

objection, if well supported, would have great weight. The

following observations will show that, like most other objections

against the Constitution, it can only proceed from a partial view

of the subject, or from a jealousy which discolors and disfigures

every object which is beheld. 1. Those who urge the objection

seem not to have recollected that the federal Constitution will

not suffer by a comparison with the State constitutions, in the

security provided for a gradual augmentation of the number of

representatives. The number which is to prevail in the first

instance is declared to be temporary. Its duration is limited to

the short term of three years. Within every successive term of

ten years a census of inhabitants is to be repeated. The

unequivocal objects of these regulations are, first, to readjust,

from time to time, the apportionment of representatives to the

number of inhabitants, under the single exception that each State

shall have one representative at least; secondly, to augment the

number of representatives at the same periods, under the sole

limitation that the whole number shall not exceed one for every

thirty thousand inhabitants. If we review the constitutions of

the several States, we shall find that some of them contain no

determinate regulations on this subject, that others correspond

pretty much on this point with the federal Constitution, and that

the most effectual security in any of them is resolvable into a

mere directory provision. 2. As far as experience has taken place

on this subject, a gradual increase of representatives under the

State constitutions has at least kept pace with that of the

constituents, and it appears that the former have been as ready

to concur in such measures as the latter have been to call for

them. 3. There is a peculiarity in the federal Constitution which

insures a watchful attention in a majority both of the people and

of their representatives to a constitutional augmentation of the

latter. The peculiarity lies in this, that one branch of the

legislature is a representation of citizens, the other of the

States: in the former, consequently, the larger States will have

most weight; in the latter, the advantage will be in favor of the

smaller States. From this circumstance it may with certainty be

inferred that the larger States will be strenuous advocates for

increasing the number and weight of that part of the legislature

in which their influence predominates. And it so happens that

four only of the largest will have a majority of the whole votes

in the House of Representatives. Should the representatives or

people, therefore, of the smaller States oppose at any time a

reasonable addition of members, a coalition of a very few States

will be sufficient to overrule the opposition; a coalition which,

notwithstanding the rivalship and local prejudices which might

prevent it on ordinary occasions, would not fail to take place,

when not merely prompted by common interest, but justified by

equity and the principles of the Constitution. It may be

alleged, perhaps, that the Senate would be prompted by like

motives to an adverse coalition; and as their concurrence would

be indispensable, the just and constitutional views of the other

branch might be defeated. This is the difficulty which has

probably created the most serious apprehensions in the jealous

friends of a numerous representation. Fortunately it is among

the difficulties which, existing only in appearance, vanish on a

close and accurate inspection. The following reflections will,

if I mistake not, be admitted to be conclusive and satisfactory

on this point. Notwithstanding the equal authority which will

subsist between the two houses on all legislative subjects,

except the originating of money bills, it cannot be doubted that

the House, composed of the greater number of members, when

supported by the more powerful States, and speaking the known and

determined sense of a majority of the people, will have no small

advantage in a question depending on the comparative firmness of

the two houses. This advantage must be increased by the

consciousness, felt by the same side of being supported in its

demands by right, by reason, and by the Constitution; and the

consciousness, on the opposite side, of contending against the

force of all these solemn considerations. It is farther to be

considered, that in the gradation between the smallest and

largest States, there are several, which, though most likely in

general to arrange themselves among the former are too little

removed in extent and population from the latter, to second an

opposition to their just and legitimate pretensions. Hence it is

by no means certain that a majority of votes, even in the

Senate, would be unfriendly to proper augmentations in the number

of representatives. It will not be looking too far to add, that

the senators from all the new States may be gained over to the

just views of the House of Representatives, by an expedient too

obvious to be overlooked. As these States will, for a great

length of time, advance in population with peculiar rapidity,

they will be interested in frequent reapportionments of the

representatives to the number of inhabitants. The large States,

therefore, who will prevail in the House of Representatives, will

have nothing to do but to make reapportionments and augmentations

mutually conditions of each other; and the senators from all the

most growing States will be bound to contend for the latter, by

the interest which their States will feel in the former. These

considerations seem to afford ample security on this subject, and

ought alone to satisfy all the doubts and fears which have been

indulged with regard to it. Admitting, however, that they should

all be insufficient to subdue the unjust policy of the smaller

States, or their predominant influence in the councils of the

Senate, a constitutional and infallible resource still remains

with the larger States, by which they will be able at all times

to accomplish their just purposes. The House of Representatives

cannot only refuse, but they alone can propose, the supplies

requisite for the support of government. They, in a word, hold

the purse that powerful instrument by which we behold, in the

history of the British Constitution, an infant and humble

representation of the people gradually enlarging the sphere of

its activity and importance, and finally reducing, as far as it

seems to have wished, all the overgrown prerogatives of the other

branches of the government. This power over the purse may, in

fact, be regarded as the most complete and effectual weapon with

which any constitution can arm the immediate representatives of

the people, for obtaining a redress of every grievance, and for

carrying into effect every just and salutary measure. But will

not the House of Representatives be as much interested as the

Senate in maintaining the government in its proper functions, and

will they not therefore be unwilling to stake its existence or

its reputation on the pliancy of the Senate? Or, if such a trial

of firmness between the two branches were hazarded, would not the

one be as likely first to yield as the other? These questions

will create no difficulty with those who reflect that in all

cases the smaller the number, and the more permanent and

conspicuous the station, of men in power, the stronger must be

the interest which they will individually feel in whatever

concerns the government. Those who represent the dignity of their

country in the eyes of other nations, will be particularly

sensible to every prospect of public danger, or of dishonorable

stagnation in public affairs. To those causes we are to ascribe

the continual triumph of the British House of Commons over the

other branches of the government, whenever the engine of a money

bill has been employed. An absolute inflexibility on the side of

the latter, although it could not have failed to involve every

department of the state in the general confusion, has neither

been apprehended nor experienced. The utmost degree of firmness

that can be displayed by the federal Senate or President, will

not be more than equal to a resistance in which they will be

supported by constitutional and patriotic principles. In this

review of the Constitution of the House of Representatives, I

have passed over the circumstances of economy, which, in the

present state of affairs, might have had some effect in lessening

the temporary number of representatives, and a disregard of which

would probably have been as rich a theme of declamation against

the Constitution as has been shown by the smallness of the number

proposed. I omit also any remarks on the difficulty which might

be found, under present circumstances, in engaging in the federal

service a large number of such characters as the people will

probably elect. One observation, however, I must be permitted to

add on this subject as claiming, in my judgment, a very serious

attention. It is, that in all legislative assemblies the greater

the number composing them may be, the fewer will be the men who

will in fact direct their proceedings. In the first place, the

more numerous an assembly may be, of whatever characters

composed, the greater is known to be the ascendency of passion

over reason. In the next place, the larger the number, the

greater will be the proportion of members of limited information

and of weak capacities. Now, it is precisely on characters of

this description that the eloquence and address of the few are

known to act with all their force. In the ancient republics,

where the whole body of the people assembled in person, a single

orator, or an artful statesman, was generally seen to rule with

as complete a sway as if a sceptre had been placed in his single

hand. On the same principle, the more multitudinous a

representative assembly may be rendered, the more it will partake

of the infirmities incident to collective meetings of the people.

Ignorance will be the dupe of cunning, and passion the slave of

sophistry and declamation. The people can never err more than in

supposing that by multiplying their representatives beyond a

certain limit, they strengthen the barrier against the government

of a few. Experience will forever admonish them that, on the

contrary, AFTER SECURING A SUFFICIENT NUMBER FOR THE PURPOSES OF

SAFETY, OF LOCAL INFORMATION, AND OF DIFFUSIVE SYMPATHY WITH THE

WHOLE SOCIETY, they will counteract their own views by every

addition to their representatives. The countenance of the

government may become more democratic, but the soul that animates

it will be more oligarchic. The machine will be enlarged, but the

fewer, and often the more secret, will be the springs by which

its motions are directed. As connected with the objection against

the number of representatives, may properly be here noticed, that

which has been suggested against the number made competent for

legislative business. It has been said that more than a majority

ought to have been required for a quorum; and in particular

cases, if not in all, more than a majority of a quorum for a

decision. That some advantages might have resulted from such a

precaution, cannot be denied. It might have been an additional

shield to some particular interests, and another obstacle

generally to hasty and partial measures. But these considerations

are outweighed by the inconveniences in the opposite scale. In

all cases where justice or the general good might require new

laws to be passed, or active measures to be pursued, the

fundamental principle of free government would be reversed. It

would be no longer the majority that would rule: the power would

be transferred to the minority. Were the defensive privilege

limited to particular cases, an interested minority might take

advantage of it to screen themselves from equitable sacrifices to

the general weal, or, in particular emergencies, to extort

unreasonable indulgences. Lastly, it would facilitate and foster

the baneful practice of secessions; a practice which has shown

itself even in States where a majority only is required; a

practice subversive of all the principles of order and regular

government; a practice which leads more directly to public

convulsions, and the ruin of popular governments, than any other

which has yet been displayed among us. PUBLIUS.

 

FEDERALIST No. 59

Concerning the Power of Congress to Regulate the Election of Members

From the New York Packet. Friday, February 22, 1788.

HAMILTON

To the People of the State of New York:

THE natural order of the subject leads us to consider, in this

place, that provision of the Constitution which authorizes the

national legislature to regulate, in the last resort, the

election of its own members. It is in these words: ``The TIMES,

PLACES, and MANNER of holding elections for senators and

representatives shall be prescribed in each State by the

legislature thereof; but the Congress may, at any time, by law,

make or alter SUCH REGULATIONS, except as to the PLACES of

choosing senators. ''1 This provision has not only been declaimed

against by those who condemn the Constitution in the gross, but

it has been censured by those who have objected with less

latitude and greater moderation; and, in one instance it has been

thought exceptionable by a gentleman who has declared himself the

advocate of every other part of the system. I am greatly

mistaken, notwithstanding, if there be any article in the whole

plan more completely defensible than this. Its propriety rests

upon the evidence of this plain proposition, that EVERY

GOVERNMENT OUGHT TO CONTAIN IN ITSELF THE MEANS OF ITS OWN

PRESERVATION. Every just reasoner will, at first sight, approve

an adherence to this rule, in the work of the convention; and

will disapprove every deviation from it which may not appear to

have been dictated by the necessity of incorporating into the

work some particular ingredient, with which a rigid conformity to

the rule was incompatible. Even in this case, though he may

acquiesce in the necessity, yet he will not cease to regard and

to regret a departure from so fundamental a principle, as a

portion of imperfection in the system which may prove the seed of

future weakness, and perhaps anarchy. It will not be alleged,

that an election law could have been framed and inserted in the

Constitution, which would have been always applicable to every

probable change in the situation of the country; and it will

therefore not be denied, that a discretionary power over

elections ought to exist somewhere. It will, I presume, be as

readily conceded, that there were only three ways in which this

power could have been reasonably modified and disposed: that it

must either have been lodged wholly in the national legislature,

or wholly in the State legislatures, or primarily in the latter

and ultimately in the former. The last mode has, with reason,

been preferred by the convention. They have submitted the

regulation of elections for the federal government, in the first

instance, to the local administrations; which, in ordinary

cases, and when no improper views prevail, may be both more

convenient and more satisfactory; but they have reserved to the

national authority a right to interpose, whenever extraordinary

circumstances might render that interposition necessary to its

safety. Nothing can be more evident, than that an exclusive

power of regulating elections for the national government, in the

hands of the State legislatures, would leave the existence of the

Union entirely at their mercy. They could at any moment

annihilate it, by neglecting to provide for the choice of persons

to administer its affairs. It is to little purpose to say, that

a neglect or omission of this kind would not be likely to take

place. The constitutional possibility of the thing, without an

equivalent for the risk, is an unanswerable objection. Nor has

any satisfactory reason been yet assigned for incurring that

risk. The extravagant surmises of a distempered jealousy can

never be dignified with that character. If we are in a humor to

presume abuses of power, it is as fair to presume them on the

part of the State governments as on the part of the general

government. And as it is more consonant to the rules of a just

theory, to trust the Union with the care of its own existence,

than to transfer that care to any other hands, if abuses of power

are to be hazarded on the one side or on the other, it is more

rational to hazard them where the power would naturally be

placed, than where it would unnaturally be placed. Suppose an

article had been introduced into the Constitution, empowering the

United States to regulate the elections for the particular

States, would any man have hesitated to condemn it, both as an

unwarrantable transposition of power, and as a premeditated

engine for the destruction of the State governments? The

violation of principle, in this case, would have required no

comment; and, to an unbiased observer, it will not be less

apparent in the project of subjecting the existence of the

national government, in a similar respect, to the pleasure of the

State governments. An impartial view of the matter cannot fail

to result in a conviction, that each, as far as possible, ought

to depend on itself for its own preservation. As an objection to

this position, it may be remarked that the constitution of the

national Senate would involve, in its full extent, the danger

which it is suggested might flow from an exclusive power in the

State legislatures to regulate the federal elections. It may be

alleged, that by declining the appointment of Senators, they

might at any time give a fatal blow to the Union; and from this

it may be inferred, that as its existence would be thus rendered

dependent upon them in so essential a point, there can be no

objection to intrusting them with it in the particular case under

consideration. The interest of each State, it may be added, to

maintain its representation in the national councils, would be a

complete security against an abuse of the trust. This argument,

though specious, will not, upon examination, be found solid. It

is certainly true that the State legislatures, by forbearing the

appointment of senators, may destroy the national government. But

it will not follow that, because they have a power to do this in

one instance, they ought to have it in every other. There are

cases in which the pernicious tendency of such a power may be far

more decisive, without any motive equally cogent with that which

must have regulated the conduct of the convention in respect to

the formation of the Senate, to recommend their admission into

the system. So far as that construction may expose the Union to

the possibility of injury from the State legislatures, it is an

evil; but it is an evil which could not have been avoided without

excluding the States, in their political capacities, wholly from

a place in the organization of the national government. If this

had been done, it would doubtless have been interpreted into an

entire dereliction of the federal principle; and would certainly

have deprived the State governments of that absolute safeguard

which they will enjoy under this provision. But however wise it

may have been to have submitted in this instance to an

inconvenience, for the attainment of a necessary advantage or a

greater good, no inference can be drawn from thence to favor an

accumulation of the evil, where no necessity urges, nor any

greater good invites. It may be easily discerned also that the

national government would run a much greater risk from a power in

the State legislatures over the elections of its House of

Representatives, than from their power of appointing the members

of its Senate. The senators are to be chosen for the period of

six years; there is to be a rotation, by which the seats of a

third part of them are to be vacated and replenished every two

years; and no State is to be entitled to more than two senators;

a quorum of the body is to consist of sixteen members. The joint

result of these circumstances would be, that a temporary

combination of a few States to intermit the appointment of

senators, could neither annul the existence nor impair the

activity of the body; and it is not from a general and permanent

combination of the States that we can have any thing to fear. The

first might proceed from sinister designs in the leading members

of a few of the State legislatures; the last would suppose a

fixed and rooted disaffection in the great body of the people,

which will either never exist at all, or will, in all

probability, proceed from an experience of the inaptitude of the

general government to the advancement of their happiness in which

event no good citizen could desire its continuance. But with

regard to the federal House of Representatives, there is intended

to be a general election of members once in two years. If the

State legislatures were to be invested with an exclusive power of

regulating these elections, every period of making them would be

a delicate crisis in the national situation, which might issue in

a dissolution of the Union, if the leaders of a few of the most

important States should have entered into a previous conspiracy

to prevent an election. I shall not deny, that there is a degree

of weight in the observation, that the interests of each State,

to be represented in the federal councils, will be a security

against the abuse of a power over its elections in the hands of

the State legislatures. But the security will not be considered

as complete, by those who attend to the force of an obvious

distinction between the interest of the people in the public

felicity, and the interest of their local rulers in the power and

consequence of their offices. The people of America may be

warmly attached to the government of the Union, at times when the

particular rulers of particular States, stimulated by the natural

rivalship of power, and by the hopes of personal aggrandizement,

and supported by a strong faction in each of those States, may be

in a very opposite temper. This diversity of sentiment between a

majority of the people, and the individuals who have the

greatest credit in their councils, is exemplified in some of the

States at the present moment, on the present question. The

scheme of separate confederacies, which will always nultiply the

chances of ambition, will be a never failing bait to all such

influential characters in the State administrations as are

capable of preferring their own emolument and advancement to the

public weal. With so effectual a weapon in their hands as the

exclusive power of regulating elections for the national

government, a combination of a few such men, in a few of the most

considerable States, where the temptation will always be the

strongest, might accomplish the destruction of the Union, by

seizing the opportunity of some casual dissatisfaction among the

people (and which perhaps they may themselves have excited), to

discontinue the choice of members for the federal House of

Representatives. It ought never to be forgotten, that a firm

union of this country, under an efficient government, will

probably be an increasing object of jealousy to more than one

nation of Europe; and that enterprises to subvert it will

sometimes originate in the intrigues of foreign powers, and will

seldom fail to be patronized and abetted by some of them. Its

preservation, therefore ought in no case that can be avoided, to

be committed to the guardianship of any but those whose situation

will uniformly beget an immediate interest in the faithful and

vigilant performance of the trust. PUBLIUS. Ist clause, 4th

section, of the Ist article.

 

FEDERALIST No. 60

The Same Subject Continued

(Concerning the Power of Congress to Regulate the Election of Members)

From the New York Packet.

Tuesday, February 26, 1788.

HAMILTON

To the People of the State of New York:

WE HAVE seen, that an uncontrollable power over the elections to

the federal government could not, without hazard, be committed to

the State legislatures. Let us now see, what would be the danger on

the other side; that is, from confiding the ultimate right of

regulating its own elections to the Union itself. It is not

pretended, that this right would ever be used for the exclusion of

any State from its share in the representation. The interest of all

would, in this respect at least, be the security of all. But it is

alleged, that it might be employed in such a manner as to promote

the election of some favorite class of men in exclusion of others,

by confining the places of election to particular districts, and

rendering it impracticable to the citizens at large to partake in

the choice. Of all chimerical suppositions, this seems to be the

most chimerical. On the one hand, no rational calculation of

probabilities would lead us to imagine that the disposition which a

conduct so violent and extraordinary would imply, could ever find

its way into the national councils; and on the other, it may be

concluded with certainty, that if so improper a spirit should ever

gain admittance into them, it would display itself in a form

altogether different and far more decisive.

The improbability of the attempt may be satisfactorily inferred

from this single reflection, that it could never be made without

causing an immediate revolt of the great body of the people, headed

and directed by the State governments. It is not difficult to

conceive that this characteristic right of freedom may, in certain

turbulent and factious seasons, be violated, in respect to a

particular class of citizens, by a victorious and overbearing

majority; but that so fundamental a privilege, in a country so

situated and enlightened, should be invaded to the prejudice of the

great mass of the people, by the deliberate policy of the

government, without occasioning a popular revolution, is altogether

inconceivable and incredible.

In addition to this general reflection, there are considerations

of a more precise nature, which forbid all apprehension on the

subject. The dissimilarity in the ingredients which will compose

the national government, and Ustill more in the manner in which they

will be brought into action in its various branches, must form a

powerful obstacle to a concert of views in any partial scheme of

elections. There is sufficient diversity in the state of property,

in the genius, manners, and habits of the people of the different

parts of the Union, to occasion a material diversity of disposition

in their representatives towards the different ranks and conditions

in society. And though an intimate intercourse under the same

government will promote a gradual assimilation in some of these

respects, yet there are causes, as well physical as moral, which

may, in a greater or less degree, permanently nourish different

propensities and inclinations in this respect. But the circumstance

which will be likely to have the greatest influence in the matter,

will be the dissimilar modes of constituting the several component

parts of the government. The House of Representatives being to be

elected immediately by the people, the Senate by the State

legislatures, the President by electors chosen for that purpose by

the people, there would be little probability of a common interest

to cement these different branches in a predilection for any

particular class of electors.

As to the Senate, it is impossible that any regulation of ``time

and manner,'' which is all that is proposed to be submitted to the

national government in respect to that body, can affect the spirit

which will direct the choice of its members. The collective sense

of the State legislatures can never be influenced by extraneous

circumstances of that sort; a consideration which alone ought to

satisfy us that the discrimination apprehended would never be

attempted. For what inducement could the Senate have to concur in a

preference in which itself would not be included? Or to what

purpose would it be established, in reference to one branch of the

legislature, if it could not be extended to the other? The

composition of the one would in this case counteract that of the

other. And we can never suppose that it would embrace the

appointments to the Senate, unless we can at the same time suppose

the voluntary co-operation of the State legislatures. If we make

the latter supposition, it then becomes immaterial where the power

in question is placed whether in their hands or in those of the

Union.

But what is to be the object of this capricious partiality in

the national councils? Is it to be exercised in a discrimination

between the different departments of industry, or between the

different kinds of property, or between the different degrees of

property? Will it lean in favor of the landed interest, or the

moneyed interest, or the mercantile interest, or the manufacturing

interest? Or, to speak in the fashionable language of the

adversaries to the Constitution, will it court the elevation of

``the wealthy and the well-born,'' to the exclusion and debasement

of all the rest of the society?

If this partiality is to be exerted in favor of those who are

concerned in any particular description of industry or property, I

presume it will readily be admitted, that the competition for it

will lie between landed men and merchants. And I scruple not to

affirm, that it is infinitely less likely that either of them should

gain an ascendant in the national councils, than that the one or the

other of them should predominate in all the local councils. The

inference will be, that a conduct tending to give an undue

preference to either is much less to be dreaded from the former than

from the latter.

The several States are in various degrees addicted to

agriculture and commerce. In most, if not all of them, agriculture

is predominant. In a few of them, however, commerce nearly divides

its empire, and in most of them has a considerable share of

influence. In proportion as either prevails, it will be conveyed

into the national representation; and for the very reason, that

this will be an emanation from a greater variety of interests, and

in much more various proportions, than are to be found in any single

State, it will be much less apt to espouse either of them with a

decided partiality, than the representation of any single State.

In a country consisting chiefly of the cultivators of land,

where the rules of an equal representation obtain, the landed

interest must, upon the whole, preponderate in the government. As

long as this interest prevails in most of the State legislatures, so

long it must maintain a correspondent superiority in the national

Senate, which will generally be a faithful copy of the majorities of

those assemblies. It cannot therefore be presumed, that a sacrifice

of the landed to the mercantile class will ever be a favorite object

of this branch of the federal legislature. In applying thus

particularly to the Senate a general observation suggested by the

situation of the country, I am governed by the consideration, that

the credulous votaries of State power cannot, upon their own

principles, suspect, that the State legislatures would be warped

from their duty by any external influence. But in reality the same

situation must have the same effect, in the primative composition at

least of the federal House of Representatives: an improper bias

towards the mercantile class is as little to be expected from this

quarter as from the other.

In order, perhaps, to give countenance to the objection at any

rate, it may be asked, is there not danger of an opposite bias in

the national government, which may dispose it to endeavor to secure

a monopoly of the federal administration to the landed class? As

there is little likelihood that the supposition of such a bias will

have any terrors for those who would be immediately injured by it, a

labored answer to this question will be dispensed with. It will be

sufficient to remark, first, that for the reasons elsewhere

assigned, it is less likely that any decided partiality should

prevail in the councils of the Union than in those of any of its

members. Secondly, that there would be no temptation to violate the

Constitution in favor of the landed class, because that class would,

in the natural course of things, enjoy as great a preponderancy as

itself could desire. And thirdly, that men accustomed to

investigate the sources of public prosperity upon a large scale,

must be too well convinced of the utility of commerce, to be

inclined to inflict upon it so deep a wound as would result from the

entire exclusion of those who would best understand its interest

from a share in the management of them. The importance of commerce,

in the view of revenue alone, must effectually guard it against the

enmity of a body which would be continually importuned in its favor,

by the urgent calls of public necessity.

I the rather consult brevity in discussing the probability of a

preference founded upon a discrimination between the different kinds

of industry and property, because, as far as I understand the

meaning of the objectors, they contemplate a discrimination of

another kind. They appear to have in view, as the objects of the

preference with which they endeavor to alarm us, those whom they

designate by the description of ``the wealthy and the well-born.''

These, it seems, are to be exalted to an odious pre-eminence over

the rest of their fellow-citizens. At one time, however, their

elevation is to be a necessary consequence of the smallness of the

representative body; at another time it is to be effected by

depriving the people at large of the opportunity of exercising their

right of suffrage in the choice of that body.

But upon what principle is the discrimination of the places of

election to be made, in order to answer the purpose of the meditated

preference? Are ``the wealthy and the well-born,'' as they are

called, confined to particular spots in the several States? Have

they, by some miraculous instinct or foresight, set apart in each of

them a common place of residence? Are they only to be met with in

the towns or cities? Or are they, on the contrary, scattered over

the face of the country as avarice or chance may have happened to

cast their own lot or that of their predecessors? If the latter is

the case, (as every intelligent man knows it to be,1) is it not

evident that the policy of confining the places of election to

particular districts would be as subversive of its own aim as it

would be exceptionable on every other account? The truth is, that

there is no method of securing to the rich the preference

apprehended, but by prescribing qualifications of property either

for those who may elect or be elected. But this forms no part of

the power to be conferred upon the national government. Its

authority would be expressly restricted to the regulation of the

TIMES, the PLACES, the MANNER of elections. The qualifications of

the persons who may choose or be chosen, as has been remarked upon

other occasions, are defined and fixed in the Constitution, and are

unalterable by the legislature.

Let it, however, be admitted, for argument sake, that the

expedient suggested might be successful; and let it at the same

time be equally taken for granted that all the scruples which a

sense of duty or an apprehension of the danger of the experiment

might inspire, were overcome in the breasts of the national rulers,

still I imagine it will hardly be pretended that they could ever

hope to carry such an enterprise into execution without the aid of a

military force sufficient to subdue the resistance of the great body

of the people. The improbability of the existence of a force equal

to that object has been discussed and demonstrated in different

parts of these papers; but that the futility of the objection under

consideration may appear in the strongest light, it shall be

conceded for a moment that such a force might exist, and the

national government shall be supposed to be in the actual possession

of it. What will be the conclusion? With a disposition to invade

the essential rights of the community, and with the means of

gratifying that disposition, is it presumable that the persons who

were actuated by it would amuse themselves in the ridiculous task of

fabricating election laws for securing a preference to a favorite

class of men? Would they not be likely to prefer a conduct better

adapted to their own immediate aggrandizement? Would they not

rather boldly resolve to perpetuate themselves in office by one

decisive act of usurpation, than to trust to precarious expedients

which, in spite of all the precautions that might accompany them,

might terminate in the dismission, disgrace, and ruin of their

authors? Would they not fear that citizens, not less tenacious than

conscious of their rights, would flock from the remote extremes of

their respective States to the places of election, to voerthrow

their tyrants, and to substitute men who would be disposed to avenge

the violated majesty of the people?

PUBLIUS.

1 Particularly in the Southern States and in this State.

 

FEDERALIST No. 61

The Same Subject Continued

(Concerning the Power of Congress to Regulate the Election of Members)

From the New York Packet.

Tuesday, February 26, 1788.

HAMILTON

To the People of the State of New York:

THE more candid opposers of the provision respecting elections,

contained in the plan of the convention, when pressed in argument,

will sometimes concede the propriety of that provision; with this

qualification, however, that it ought to have been accompanied with

a declaration, that all elections should be had in the counties

where the electors resided. This, say they, was a necessary

precaution against an abuse of the power. A declaration of this

nature would certainly have been harmless; so far as it would have

had the effect of quieting apprehensions, it might not have been

undesirable. But it would, in fact, have afforded little or no

additional security against the danger apprehended; and the want of

it will never be considered, by an impartial and judicious examiner,

as a serious, still less as an insuperable, objection to the plan.

The different views taken of the subject in the two preceding

papers must be sufficient to satisfy all dispassionate and

discerning men, that if the public liberty should ever be the victim

of the ambition of the national rulers, the power under examination,

at least, will be guiltless of the sacrifice.

If those who are inclined to consult their jealousy only, would

exercise it in a careful inspection of the several State

constitutions, they would find little less room for disquietude and

alarm, from the latitude which most of them allow in respect to

elections, than from the latitude which is proposed to be allowed to

the national government in the same respect. A review of their

situation, in this particular, would tend greatly to remove any ill

impressions which may remain in regard to this matter. But as that

view would lead into long and tedious details, I shall content

myself with the single example of the State in which I write. The

constitution of New York makes no other provision for LOCALITY of

elections, than that the members of the Assembly shall be elected in

the COUNTIES; those of the Senate, in the great districts into

which the State is or may be divided: these at present are four in

number, and comprehend each from two to six counties. It may

readily be perceived that it would not be more difficult to the

legislature of New York to defeat the suffrages of the citizens of

New York, by confining elections to particular places, than for the

legislature of the United States to defeat the suffrages of the

citizens of the Union, by the like expedient. Suppose, for

instance, the city of Albany was to be appointed the sole place of

election for the county and district of which it is a part, would

not the inhabitants of that city speedily become the only electors

of the members both of the Senate and Assembly for that county and

district? Can we imagine that the electors who reside in the remote

subdivisions of the counties of Albany, Saratoga, Cambridge, etc.,

or in any part of the county of Montgomery, would take the trouble

to come to the city of Albany, to give their votes for members of

the Assembly or Senate, sooner than they would repair to the city of

New York, to participate in the choice of the members of the federal

House of Representatives? The alarming indifference discoverable in

the exercise of so invaluable a privilege under the existing laws,

which afford every facility to it, furnishes a ready answer to this

question. And, abstracted from any experience on the subject, we

can be at no loss to determine, that when the place of election is

at an INCONVENIENT DISTANCE from the elector, the effect upon his

conduct will be the same whether that distance be twenty miles or

twenty thousand miles. Hence it must appear, that objections to the

particular modification of the federal power of regulating elections

will, in substance, apply with equal force to the modification of

the like power in the constitution of this State; and for this

reason it will be impossible to acquit the one, and to condemn the

other. A similar comparison would lead to the same conclusion in

respect to the constitutions of most of the other States.

If it should be said that defects in the State constitutions

furnish no apology for those which are to be found in the plan

proposed, I answer, that as the former have never been thought

chargeable with inattention to the security of liberty, where the

imputations thrown on the latter can be shown to be applicable to

them also, the presumption is that they are rather the cavilling

refinements of a predetermined opposition, than the well-founded

inferences of a candid research after truth. To those who are

disposed to consider, as innocent omissions in the State

constitutions, what they regard as unpardonable blemishes in the

plan of the convention, nothing can be said; or at most, they can

only be asked to assign some substantial reason why the

representatives of the people in a single State should be more

impregnable to the lust of power, or other sinister motives, than

the representatives of the people of the United States? If they

cannot do this, they ought at least to prove to us that it is easier

to subvert the liberties of three millions of people, with the

advantage of local governments to head their opposition, than of two

hundred thousand people who are destitute of that advantage. And in

relation to the point immediately under consideration, they ought to

convince us that it is less probable that a predominant faction in a

single State should, in order to maintain its superiority, incline

to a preference of a particular class of electors, than that a

similar spirit should take possession of the representatives of

thirteen States, spread over a vast region, and in several respects

distinguishable from each other by a diversity of local

circumstances, prejudices, and interests.

Hitherto my observations have only aimed at a vindication of the

provision in question, on the ground of theoretic propriety, on that

of the danger of placing the power elsewhere, and on that of the

safety of placing it in the manner proposed. But there remains to

be mentioned a positive advantage which will result from this

disposition, and which could not as well have been obtained from any

other: I allude to the circumstance of uniformity in the time of

elections for the federal House of Representatives. It is more than

possible that this uniformity may be found by experience to be of

great importance to the public welfare, both as a security against

the perpetuation of the same spirit in the body, and as a cure for

the diseases of faction. If each State may choose its own time of

election, it is possible there may be at least as many different

periods as there are months in the year. The times of election in

the several States, as they are now established for local purposes,

vary between extremes as wide as March and November. The

consequence of this diversity would be that there could never happen

a total dissolution or renovation of the body at one time. If an

improper spirit of any kind should happen to prevail in it, that

spirit would be apt to infuse itself into the new members, as they

come forward in succession. The mass would be likely to remain

nearly the same, assimilating constantly to itself its gradual

accretions. There is a contagion in example which few men have

sufficient force of mind to resist. I am inclined to think that

treble the duration in office, with the condition of a total

dissolution of the body at the same time, might be less formidable

to liberty than one third of that duration subject to gradual and

successive alterations.

Uniformity in the time of elections seems not less requisite for

executing the idea of a regular rotation in the Senate, and for

conveniently assembling the legislature at a stated period in each

year.

It may be asked, Why, then, could not a time have been fixed in

the Constitution? As the most zealous adversaries of the plan of

the convention in this State are, in general, not less zealous

admirers of the constitution of the State, the question may be

retorted, and it may be asked, Why was not a time for the like

purpose fixed in the constitution of this State? No better answer

can be given than that it was a matter which might safely be

entrusted to legislative discretion; and that if a time had been

appointed, it might, upon experiment, have been found less

convenient than some other time. The same answer may be given to

the question put on the other side. And it may be added that the

supposed danger of a gradual change being merely speculative, it

would have been hardly advisable upon that speculation to establish,

as a fundamental point, what would deprive several States of the

convenience of having the elections for their own governments and

for the national government at the same epochs.

PUBLIUS.

 

FEDERALIST No. 62

The Senate

For the Independent Journal.

HAMILTON OR MADISON

To the People of the State of New York:

HAVING examined the constitution of the House of

Representatives, and answered such of the objections against it as

seemed to merit notice, I enter next on the examination of the

Senate.

The heads into which this member of the government may be

considered are: I. The qualification of senators; II. The

appointment of them by the State legislatures; III. The equality of

representation in the Senate; IV. The number of senators, and the

term for which they are to be elected; V. The powers vested in the

Senate.

I. The qualifications proposed for senators, as distinguished

from those of representatives, consist in a more advanced age and a

longer period of citizenship. A senator must be thirty years of age

at least; as a representative must be twenty-five. And the former

must have been a citizen nine years; as seven years are required

for the latter. The propriety of these distinctions is explained by

the nature of the senatorial trust, which, requiring greater extent

of information and tability of character, requires at the same time

that the senator should have reached a period of life most likely to

supply these advantages; and which, participating immediately in

transactions with foreign nations, ought to be exercised by none who

are not thoroughly weaned from the prepossessions and habits

incident to foreign birth and education. The term of nine years

appears to be a prudent mediocrity between a total exclusion of

adopted citizens, whose merits and talents may claim a share in the

public confidence, and an indiscriminate and hasty admission of

them, which might create a channel for foreign influence on the

national councils.

II. It is equally unnecessary to dilate on the appointment of

senators by the State legislatures. Among the various modes which

might have been devised for constituting this branch of the

government, that which has been proposed by the convention is

probably the most congenial with the public opinion. It is

recommended by the double advantage of favoring a select

appointment, and of giving to the State governments such an agency

in the formation of the federal government as must secure the

authority of the former, and may form a convenient link between the

two systems.

III. The equality of representation in the Senate is another

point, which, being evidently the result of compromise between the

opposite pretensions of the large and the small States, does not

call for much discussion. If indeed it be right, that among a

people thoroughly incorporated into one nation, every district ought

to have a PROPORTIONAL share in the government, and that among

independent and sovereign States, bound together by a simple league,

the parties, however unequal in size, ought to have an EQUAL share

in the common councils, it does not appear to be without some reason

that in a compound republic, partaking both of the national and

federal character, the government ought to be founded on a mixture

of the principles of proportional and equal representation. But it

is superfluous to try, by the standard of theory, a part of the

Constitution which is allowed on all hands to be the result, not of

theory, but ``of a spirit of amity, and that mutual deference and

concession which the peculiarity of our political situation rendered

indispensable.'' A common government, with powers equal to its

objects, is called for by the voice, and still more loudly by the

political situation, of America. A government founded on principles

more consonant to the wishes of the larger States, is not likely to

be obtained from the smaller States. The only option, then, for the

former, lies between the proposed government and a government still

more objectionable. Under this alternative, the advice of prudence

must be to embrace the lesser evil; and, instead of indulging a

fruitless anticipation of the possible mischiefs which may ensue, to

contemplate rather the advantageous consequences which may qualify

the sacrifice.

In this spirit it may be remarked, that the equal vote allowed

to each State is at once a constitutional recognition of the portion

of sovereignty remaining in the individual States, and an instrument

for preserving that residuary sovereignty. So far the equality

ought to be no less acceptable to the large than to the small

States; since they are not less solicitous to guard, by every

possible expedient, against an improper consolidation of the States

into one simple republic.

Another advantage accruing from this ingredient in the

constitution of the Senate is, the additional impediment it must

prove against improper acts of legislation. No law or resolution

can now be passed without the concurrence, first, of a majority of

the people, and then, of a majority of the States. It must be

acknowledged that this complicated check on legislation may in some

instances be injurious as well as beneficial; and that the peculiar

defense which it involves in favor of the smaller States, would be

more rational, if any interests common to them, and distinct from

those of the other States, would otherwise be exposed to peculiar

danger. But as the larger States will always be able, by their

power over the supplies, to defeat unreasonable exertions of this

prerogative of the lesser States, and as the faculty and excess of

law-making seem to be the diseases to which our governments are most

liable, it is not impossible that this part of the Constitution may

be more convenient in practice than it appears to many in

contemplation.

IV. The number of senators, and the duration of their

appointment, come next to be considered. In order to form an

accurate judgment on both of these points, it will be proper to

inquire into the purposes which are to be answered by a senate; and

in order to ascertain these, it will be necessary to review the

inconveniences which a republic must suffer from the want of such an

institution.

First. It is a misfortune incident to republican

government, though in a less degree than to other governments, that

those who administer it may forget their obligations to their

constituents, and prove unfaithful to their important trust. In

this point of view, a senate, as a second branch of the legislative

assembly, distinct from, and dividing the power with, a first, must

be in all cases a salutary check on the government. It doubles the

security to the people, by requiring the concurrence of two distinct

bodies in schemes of usurpation or perfidy, where the ambition or

corruption of one would otherwise be sufficient. This is a

precaution founded on such clear principles, and now so well

understood in the United States, that it would be more than

superfluous to enlarge on it. I will barely remark, that as the

improbability of sinister combinations will be in proportion to the

dissimilarity in the genius of the two bodies, it must be politic to

distinguish them from each other by every circumstance which will

consist with a due harmony in all proper measures, and with the

genuine principles of republican government.

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 might be cited without number; and from

proceedings within the United States, as well as from the history of

other nations. But a position that will not be contradicted, need

not be proved. All that need be remarked is, that a body which is

to correct this infirmity ought itself to be free from it, and

consequently ought to be less numerous. It ought, moreover, to

possess great firmness, and consequently ought to hold its authority

by a tenure of considerable duration.

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 assembly of men called for

the most part from pursuits of a private nature, continued in

appointment for a short time, and led by no permanent motive to

devote the intervals of public occupation to a study of the laws,

the affairs, and the comprehensive interests of their country,

should, if left wholly to themselves, escape a variety of important

errors in the exercise of their legislative trust. It may be

affirmed, on the best grounds, that no small share of the present

embarrassments of America is to be charged on the blunders of our

governments; and that these have proceeded from the heads rather

than the hearts of most of the authors of them. What indeed are all

the repealing, explaining, and amending laws, which fill and

disgrace our voluminous codes, but so many monuments of deficient

wisdom; so many impeachments exhibited by each succeeding against

each preceding session; so many admonitions to the people, of the

value of those aids which may be expected from a well-constituted

senate?

A good government implies two things: first, fidelity to the

object of government, which is the happiness of the people;

secondly, a knowledge of the means by which that object can be best

attained. Some governments are deficient in both these qualities;

most governments are deficient in the first. I scruple not to

assert, that in American governments too little attention has been

paid to the last. The federal Constitution avoids this error; and

what merits particular notice, it provides for the last in a mode

which increases the security for the first.

Fourthly. The mutability in the public councils arising

from a rapid succession of new members, however qualified they may

be, points out, in the strongest manner, the necessity of some

stable institution in the government. Every new election in the

States is found to change one half of the representatives. From

this change of men must proceed a change of opinions; and from a

change of opinions, a change of measures. But a continual change

even of good measures is inconsistent with every rule of prudence

and every prospect of success. The remark is verified in private

life, and becomes more just, as well as more important, in national

transactions.

To trace the mischievous effects of a mutable government would

fill a volume. I will hint a few only, each of which will be

perceived to be a source of innumerable others.

In the first place, it forfeits the respect and confidence of

other nations, and all the advantages connected with national

character. An individual who is observed to be inconstant to his

plans, or perhaps to carry on his affairs without any plan at all,

is marked at once, by all prudent people, as a speedy victim to his

own unsteadiness and folly. His more friendly neighbors may pity

him, but all will decline to connect their fortunes with his; and

not a few will seize the opportunity of making their fortunes out of

his. One nation is to another what one individual is to another;

with this melancholy distinction perhaps, that the former, with

fewer of the benevolent emotions than the latter, are under fewer

restraints also from taking undue advantage from the indiscretions

of each other. Every nation, consequently, whose affairs betray a

want of wisdom and stability, may calculate on every loss which can

be sustained from the more systematic policy of their wiser

neighbors. But the best instruction on this subject is unhappily

conveyed to America by the example of her own situation. She finds

that she is held in no respect by her friends; that she is the

derision of her enemies; and that she is a prey to every nation

which has an interest in speculating on her fluctuating councils and

embarrassed affairs.

The internal effects of a mutable policy are still more

calamitous. It poisons the blessing of liberty itself. It will be

of little avail to the people, that the laws are made by men of

their own choice, if the laws be so voluminous that they cannot be

read, or so incoherent that they cannot be understood; if they be

repealed or revised before they are promulgated, or undergo such

incessant changes that no man, who knows what the law is to-day, can

guess what it will be to-morrow. Law is defined to be a rule of

action; but how can that be a rule, which is little known, and less

fixed?

Another effect of public instability is the unreasonable

advantage it gives to the sagacious, the enterprising, and the

moneyed few over the industrious and uniformed mass of the people.

Every new regulation concerning commerce or revenue, or in any way

affecting the value of the different species of property, presents a

new harvest to those who watch the change, and can trace its

consequences; a harvest, reared not by themselves, but by the toils

and cares of the great body of their fellow-citizens. This is a

state of things in which it may be said with some truth that laws

are made for the FEW, not for the MANY.

In another point of view, great injury results from an unstable

government. The want of confidence in the public councils damps

every useful undertaking, the success and profit of which may depend

on a continuance of existing arrangements. What prudent merchant

will hazard his fortunes in any new branch of commerce when he knows

not but that his plans may be rendered unlawful before they can be

executed? What farmer or manufacturer will lay himself out for the

encouragement given to any particular cultivation or establishment,

when he can have no assurance that his preparatory labors and

advances will not render him a victim to an inconstant government?

In a word, no great improvement or laudable enterprise can go

forward which requires the auspices of a steady system of national

policy.

But the most deplorable effect of all is that diminution of

attachment and reverence which steals into the hearts of the people,

towards a political system which betrays so many marks of infirmity,

and disappoints so many of their flattering hopes. No government,

any more than an individual, will long be respected without being

truly respectable; nor be truly respectable, without possessing a

certain portion of order and stability.

PUBLIUS.

 

FEDERALIST. No. 63

The Senate Continued

For the Independent Journal.

HAMILTON OR MADISON

To the People of the State of New York:

A FIFTH desideratum, illustrating the utility of a senate, is

the want of a due sense of national character. Without a select and

stable member of the government, the esteem of foreign powers will

not only be forfeited by an unenlightened and variable policy,

proceeding from the causes already mentioned, but the national

councils will not possess that sensibility to the opinion of the

world, which is perhaps not less necessary in order to merit, than

it is to obtain, its respect and confidence.

An attention to the judgment of other nations is important to

every government for two reasons: the one is, that, independently

of the merits of any particular plan or measure, it is desirable, on

various accounts, that it should appear to other nations as the

offspring of a wise and honorable policy; the second is, that in

doubtful cases, particularly where the national councils may be

warped by some strong passion or momentary interest, the presumed or

known opinion of the impartial world may be the best guide that can

be followed. What has not America lost by her want of character

with foreign nations; and how many errors and follies would she not

have avoided, if the justice and propriety of her measures had, in

every instance, been previously tried by the light in which they

would probably appear to the unbiased part of mankind?

Yet however requisite a sense of national character may be, it

is evident that it can never be sufficiently possessed by a numerous

and changeable body. It can only be found in a number so small that

a sensible degree of the praise and blame of public measures may be

the portion of each individual; or in an assembly so durably

invested with public trust, that the pride and consequence of its

members may be sensibly incorporated with the reputation and

prosperity of the community. The half-yearly representatives of

Rhode Island would probably have been little affected in their

deliberations on the iniquitous measures of that State, by arguments

drawn from the light in which such measures would be viewed by

foreign nations, or even by the sister States; whilst it can

scarcely be doubted that if the concurrence of a select and stable

body had been necessary, a regard to national character alone would

have prevented the calamities under which that misguided people is

now laboring.

I add, as a SIXTH defect the want, in some important cases, of a

due responsibility in the government to the people, arising from

that frequency of elections which in other cases produces this

responsibility. This remark will, perhaps, appear not only new, but

paradoxical. It must nevertheless be acknowledged, when explained,

to be as undeniable as it is important.

Responsibility, in order to be reasonable, must be limited to

objects within the power of the responsible party, and in order to

be effectual, must relate to operations of that power, of which a

ready and proper judgment can be formed by the constituents. The

objects of government may be divided into two general classes: the

one depending on measures which have singly an immediate and

sensible operation; the other depending on a succession of

well-chosen and well-connected measures, which have a gradual and

perhaps unobserved operation. The importance of the latter

description to the collective and permanent welfare of every

country, needs no explanation. And yet it is evident that an

assembly elected for so short a term as to be unable to provide more

than one or two links in a chain of measures, on which the general

welfare may essentially depend, ought not to be answerable for the

final result, any more than a steward or tenant, engaged for one

year, could be justly made to answer for places or improvements

which could not be accomplished in less than half a dozen years.

Nor is it possible for the people to estimate the SHARE of

influence which their annual assemblies may respectively have on

events resulting from the mixed transactions of several years. It

is sufficiently difficult to preserve a personal responsibility in

the members of a NUMEROUS body, for such acts of the body as have an

immediate, detached, and palpable operation on its constituents.

The proper remedy for this defect must be an additional body in

the legislative department, which, having sufficient permanency to

provide for such objects as require a continued attention, and a

train of measures, may be justly and effectually answerable for the

attainment of those objects.

Thus far I have considered the circumstances which point out the

necessity of a well-constructed Senate only as they relate to the

representatives of the people. To a people as little blinded by

prejudice or corrupted by flattery as those whom I address, I shall

not scruple to add, that such an institution may be sometimes

necessary as a defense to the people against their own temporary

errors and delusions. As the cool and deliberate sense of the

community ought, in all governments, and actually will, in all free

governments, ultimately prevail over the views of its rulers; so

there are particular moments in public affairs when the people,

stimulated by some irregular passion, or some illicit advantage, or

misled by the artful misrepresentations of interested men, may call

for measures which they themselves will afterwards be the most ready

to lament and condemn. In these critical moments, how salutary will

be the interference of some temperate and respectable body of

citizens, in order to check the misguided career, and to suspend the

blow meditated by the people against themselves, until reason,

justice, and truth can regain their authority over the public mind?

What bitter anguish would not the people of Athens have often

escaped if their government had contained so provident a safeguard

against the tyranny of their own passions? Popular liberty might

then have escaped the indelible reproach of decreeing to the same

citizens the hemlock on one day and statues on the next.

It may be suggested, that a people spread over an extensive

region cannot, like the crowded inhabitants of a small district, be

subject to the infection of violent passions, or to the danger of

combining in pursuit of unjust measures. I am far from denying that

this is a distinction of peculiar importance. I have, on the

contrary, endeavored in a former paper to show, that it is one of

the principal recommendations of a confederated republic. At the

same time, this advantage ought not to be considered as superseding

the use of auxiliary precautions. It may even be remarked, that the

same extended situation, which will exempt the people of America

from some of the dangers incident to lesser republics, will expose

them to the inconveniency of remaining for a longer time under the

influence of those misrepresentations which the combined industry of

interested men may succeed in distributing among them.

It adds no small weight to all these considerations, to

recollect that history informs us of no long-lived republic which

had not a senate. Sparta, Rome, and Carthage are, in fact, the only

states to whom that character can be applied. In each of the two

first there was a senate for life. The constitution of the senate

in the last is less known. Circumstantial evidence makes it

probable that it was not different in this particular from the two

others. It is at least certain, that it had some quality or other

which rendered it an anchor against popular fluctuations; and that

a smaller council, drawn out of the senate, was appointed not only

for life, but filled up vacancies itself. These examples, though as

unfit for the imitation, as they are repugnant to the genius, of

America, are, notwithstanding, when compared with the fugitive and

turbulent existence of other ancient republics, very instructive

proofs of the necessity of some institution that will blend

stability with liberty. I am not unaware of the circumstances which

distinguish the American from other popular governments, as well

ancient as modern; and which render extreme circumspection

necessary, in reasoning from the one case to the other. But after

allowing due weight to this consideration, it may still be

maintained, that there are many points of similitude which render

these examples not unworthy of our attention. Many of the defects,

as we have seen, which can only be supplied by a senatorial

institution, are common to a numerous assembly frequently elected by

the people, and to the people themselves. There are others peculiar

to the former, which require the control of such an institution.

The people can never wilfully betray their own interests; but they

may possibly be betrayed by the representatives of the people; and

the danger will be evidently greater where the whole legislative

trust is lodged in the hands of one body of men, than where the

concurrence of separate and dissimilar bodies is required in every

public act.

The difference most relied on, between the American and other

republics, consists in the principle of representation; which is

the pivot on which the former move, and which is supposed to have

been unknown to the latter, or at least to the ancient part of them.

The use which has been made of this difference, in reasonings

contained in former papers, will have shown that I am disposed

neither to deny its existence nor to undervalue its importance. I

feel the less restraint, therefore, in observing, that the position

concerning the ignorance of the ancient governments on the subject

of representation, is by no means precisely true in the latitude

commonly given to it. Without entering into a disquisition which

here would be misplaced, I will refer to a few known facts, in

support of what I advance.

In the most pure democracies of Greece, many of the executive

functions were performed, not by the people themselves, but by

officers elected by the people, and REPRESENTING the people in their

EXECUTIVE capacity.

Prior to the reform of Solon, Athens was governed by nine

Archons, annually ELECTED BY THE PEOPLE AT LARGE. The degree of

power delegated to them seems to be left in great obscurity.

Subsequent to that period, we find an assembly, first of four, and

afterwards of six hundred members, annually ELECTED BY THE PEOPLE;

and PARTIALLY representing them in their LEGISLATIVE capacity,

since they were not only associated with the people in the function

of making laws, but had the exclusive right of originating

legislative propositions to the people. The senate of Carthage,

also, whatever might be its power, or the duration of its

appointment, appears to have been ELECTIVE by the suffrages of the

people. Similar instances might be traced in most, if not all the

popular governments of antiquity.

Lastly, in Sparta we meet with the Ephori, and in Rome with the

Tribunes; two bodies, small indeed in numbers, but annually ELECTED

BY THE WHOLE BODY OF THE PEOPLE, and considered as the

REPRESENTATIVES of the people, almost in their PLENIPOTENTIARY

capacity. The Cosmi of Crete were also annually ELECTED BY THE

PEOPLE, and have been considered by some authors as an institution

analogous to those of Sparta and Rome, with this difference only,

that in the election of that representative body the right of

suffrage was communicated to a part only of the people.

From these facts, to which many others might be added, it is

clear that the principle of representation was neither unknown to

the ancients nor wholly overlooked in their political constitutions.

The true distinction between these and the American governments,

lies IN THE TOTAL EXCLUSION OF THE PEOPLE, IN THEIR COLLECTIVE

CAPACITY, from any share in the LATTER, and not in the TOTAL

EXCLUSION OF THE REPRESENTATIVES OF THE PEOPLE from the

administration of the FORMER. The distinction, however, thus

qualified, must be admitted to leave a most advantageous superiority

in favor of the United States. But to insure to this advantage its

full effect, we must be careful not to separate it from the other

advantage, of an extensive territory. For it cannot be believed,

that any form of representative government could have succeeded

within the narrow limits occupied by the democracies of Greece.

In answer to all these arguments, suggested by reason,

illustrated by examples, and enforced by our own experience, the

jealous adversary of the Constitution will probably content himself

with repeating, that a senate appointed not immediately by the

people, and for the term of six years, must gradually acquire a

dangerous pre-eminence in the government, and finally transform it

into a tyrannical aristocracy.

To this general answer, the general reply ought to be

sufficient, that liberty may be endangered by the abuses of liberty

as well as by the abuses of power; that there are numerous

instances of the former as well as of the latter; and that the

former, rather than the latter, are apparently most to be

apprehended by the United States. But a more particular reply may

be given.

Before such a revolution can be effected, the Senate, it is to

be observed, must in the first place corrupt itself; must next

corrupt the State legislatures; must then corrupt the House of

Representatives; and must finally corrupt the people at large. It

is evident that the Senate must be first corrupted before it can

attempt an establishment of tyranny. Without corrupting the State

legislatures, it cannot prosecute the attempt, because the

periodical change of members would otherwise regenerate the whole

body. Without exerting the means of corruption with equal success

on the House of Representatives, the opposition of that coequal

branch of the government would inevitably defeat the attempt; and

without corrupting the people themselves, a succession of new

representatives would speedily restore all things to their pristine

order. Is there any man who can seriously persuade himself that the

proposed Senate can, by any possible means within the compass of

human address, arrive at the object of a lawless ambition, through

all these obstructions?

If reason condemns the suspicion, the same sentence is

pronounced by experience. The constitution of Maryland furnishes

the most apposite example. The Senate of that State is elected, as

the federal Senate will be, indirectly by the people, and for a term

less by one year only than the federal Senate. It is distinguished,

also, by the remarkable prerogative of filling up its own vacancies

within the term of its appointment, and, at the same time, is not

under the control of any such rotation as is provided for the

federal Senate. There are some other lesser distinctions, which

would expose the former to colorable objections, that do not lie

against the latter. If the federal Senate, therefore, really

contained the danger which has been so loudly proclaimed, some

symptoms at least of a like danger ought by this time to have been

betrayed by the Senate of Maryland, but no such symptoms have

appeared. On the contrary, the jealousies at first entertained by

men of the same description with those who view with terror the

correspondent part of the federal Constitution, have been gradually

extinguished by the progress of the experiment; and the Maryland

constitution is daily deriving, from the salutary operation of this

part of it, a reputation in which it will probably not be rivalled

by that of any State in the Union.

But if any thing could silence the jealousies on this subject,

it ought to be the British example. The Senate there instead of

being elected for a term of six years, and of being unconfined to

particular families or fortunes, is an hereditary assembly of

opulent nobles. The House of Representatives, instead of being

elected for two years, and by the whole body of the people, is

elected for seven years, and, in very great proportion, by a very

small proportion of the people. Here, unquestionably, ought to be

seen in full display the aristocratic usurpations and tyranny which

are at some future period to be exemplified in the United States.

Unfortunately, however, for the anti-federal argument, the British

history informs us that this hereditary assembly has not been able

to defend itself against the continual encroachments of the House of

Representatives; and that it no sooner lost the support of the

monarch, than it was actually crushed by the weight of the popular

branch.

As far as antiquity can instruct us on this subject, its

examples support the reasoning which we have employed. In Sparta,

the Ephori, the annual representatives of the people, were found an

overmatch for the senate for life, continually gained on its

authority and finally drew all power into their own hands. The

Tribunes of Rome, who were the representatives of the people,

prevailed, it is well known, in almost every contest with the senate

for life, and in the end gained the most complete triumph over it.

The fact is the more remarkable, as unanimity was required in every

act of the Tribunes, even after their number was augmented to ten.

It proves the irresistible force possessed by that branch of a free

government, which has the people on its side. To these examples

might be added that of Carthage, whose senate, according to the

testimony of Polybius, instead of drawing all power into its vortex,

had, at the commencement of the second Punic War, lost almost the

whole of its original portion.

Besides the conclusive evidence resulting from this assemblage

of facts, that the federal Senate will never be able to transform

itself, by gradual usurpations, into an independent and aristocratic

body, we are warranted in believing, that if such a revolution

should ever happen from causes which the foresight of man cannot

guard against, the House of Representatives, with the people on

their side, will at all times be able to bring back the Constitution

to its primitive form and principles. Against the force of the

immediate representatives of the people, nothing will be able to

maintain even the constitutional authority of the Senate, but such a

display of enlightened policy, and attachment to the public good, as

will divide with that branch of the legislature the affections and

support of the entire body of the people themselves.

PUBLIUS.

 

FEDERALIST No. 64

The Powers of the Senate

From the New York Packet.

Friday, March 7, 1788.

JAY

To the People of the State of New York:

IT IS a just and not a new observation, that enemies to

particular persons, and opponents to particular measures, seldom

confine their censures to such things only in either as are worthy

of blame. Unless on this principle, it is difficult to explain the

motives of their conduct, who condemn the proposed Constitution in

the aggregate, and treat with severity some of the most

unexceptionable articles in it.

The second section gives power to the President, ``BY AND WITH

THE ADVICE AND CONSENT OF THE SENATE, TO MAKE TREATIES, PROVIDED TWO

THIRDS OF THE SENATORS PRESENT CONCUR.''

The power of making treaties is an important one, especially as

it relates to war, peace, and commerce; and it should not be

delegated but in such a mode, and with such precautions, as will

afford the highest security that it will be exercised by men the

best qualified for the purpose, and in the manner most conducive to

the public good. The convention appears to have been attentive to

both these points: they have directed the President to be chosen by

select bodies of electors, to be deputed by the people for that

express purpose; and they have committed the appointment of

senators to the State legislatures. This mode has, in such cases,

vastly the advantage of elections by the people in their collective

capacity, where the activity of party zeal, taking the advantage of

the supineness, the ignorance, and the hopes and fears of the unwary

and interested, often places men in office by the votes of a small

proportion of the electors.

As the select assemblies for choosing the President, as well as

the State legislatures who appoint the senators, will in general be

composed of the most enlightened and respectable citizens, there is

reason to presume that their attention and their votes will be

directed to those men only who have become the most distinguished by

their abilities and virtue, and in whom the people perceive just

grounds for confidence. The Constitution manifests very particular

attention to this object. By excluding men under thirty-five from

the first office, and those under thirty from the second, it

confines the electors to men of whom the people have had time to

form a judgment, and with respect to whom they will not be liable to

be deceived by those brilliant appearances of genius and patriotism,

which, like transient meteors, sometimes mislead as well as dazzle.

If the observation be well founded, that wise kings will always be

served by able ministers, it is fair to argue, that as an assembly

of select electors possess, in a greater degree than kings, the

means of extensive and accurate information relative to men and

characters, so will their appointments bear at least equal marks of

discretion and discernment. The inference which naturally results

from these considerations is this, that the President and senators

so chosen will always be of the number of those who best understand

our national interests, whether considered in relation to the

several States or to foreign nations, who are best able to promote

those interests, and whose reputation for integrity inspires and

merits confidence. With such men the power of making treaties may

be safely lodged.

Although the absolute necessity of system, in the conduct of any

business, is universally known and acknowledged, yet the high

importance of it in national affairs has not yet become sufficiently

impressed on the public mind. They who wish to commit the power

under consideration to a popular assembly, composed of members

constantly coming and going in quick succession, seem not to

recollect that such a body must necessarily be inadequate to the

attainment of those great objects, which require to be steadily

contemplated in all their relations and circumstances, and which can

only be approached and achieved by measures which not only talents,

but also exact information, and often much time, are necessary to

concert and to execute. It was wise, therefore, in the convention

to provide, not only that the power of making treaties should be

committed to able and honest men, but also that they should continue

in place a sufficient time to become perfectly acquainted with our

national concerns, and to form and introduce a a system for the

management of them. The duration prescribed is such as will give

them an opportunity of greatly extending their political

information, and of rendering their accumulating experience more and

more beneficial to their country. Nor has the convention discovered

less prudence in providing for the frequent elections of senators in

such a way as to obviate the inconvenience of periodically

transferring those great affairs entirely to new men; for by

leaving a considerable residue of the old ones in place, uniformity

and order, as well as a constant succession of official information

will be preserved.

There are a few who will not admit that the affairs of trade and

navigation should be regulated by a system cautiously formed and

steadily pursued; and that both our treaties and our laws should

correspond with and be made to promote it. It is of much

consequence that this correspondence and conformity be carefully

maintained; and they who assent to the truth of this position will

see and confess that it is well provided for by making concurrence

of the Senate necessary both to treaties and to laws.

It seldom happens in the negotiation of treaties, of whatever

nature, but that perfect SECRECY and immediate DESPATCH are

sometimes requisite. These are cases where the most useful

intelligence may be obtained, if the persons possessing it can be

relieved from apprehensions of discovery. Those apprehensions will

operate on those persons whether they are actuated by mercenary or

friendly motives; and there doubtless are many of both

descriptions, who would rely on the secrecy of the President, but

who would not confide in that of the Senate, and still less in that

of a large popular Assembly. The convention have done well,

therefore, in so disposing of the power of making treaties, that

although the President must, in forming them, act by the advice and

consent of the Senate, yet he will be able to manage the business of

intelligence in such a manner as prudence may suggest.

They who have turned their attention to the affairs of men, must

have perceived that there are tides in them; tides very irregular

in their duration, strength, and direction, and seldom found to run

twice exactly in the same manner or measure. To discern and to

profit by these tides in national affairs is the business of those

who preside over them; and they who have had much experience on

this head inform us, that there frequently are occasions when days,

nay, even when hours, are precious. The loss of a battle, the death

of a prince, the removal of a minister, or other circumstances

intervening to change the present posture and aspect of affairs, may

turn the most favorable tide into a course opposite to our wishes.

As in the field, so in the cabinet, there are moments to be seized

as they pass, and they who preside in either should be left in

capacity to improve them. So often and so essentially have we

heretofore suffered from the want of secrecy and despatch, that the

Constitution would have been inexcusably defective, if no attention

had been paid to those objects. Those matters which in negotiations

usually require the most secrecy and the most despatch, are those

preparatory and auxiliary measures which are not otherwise important

in a national view, than as they tend to facilitate the attainment

of the objects of the negotiation. For these, the President will

find no difficulty to provide; and should any circumstance occur

which requires the advice and consent of the Senate, he may at any

time convene them. Thus we see that the Constitution provides that

our negotiations for treaties shall have every advantage which can

be derived from talents, information, integrity, and deliberate

investigations, on the one hand, and from secrecy and despatch on

the other.

But to this plan, as to most others that have ever appeared,

objections are contrived and urged.

Some are displeased with it, not on account of any errors or

defects in it, but because, as the treaties, when made, are to have

the force of laws, they should be made only by men invested with

legislative authority. These gentlemen seem not to consider that

the judgments of our courts, and the commissions constitutionally

given by our governor, are as valid and as binding on all persons

whom they concern, as the laws passed by our legislature. All

constitutional acts of power, whether in the executive or in the

judicial department, have as much legal validity and obligation as

if they proceeded from the legislature; and therefore, whatever

name be given to the power of making treaties, or however obligatory

they may be when made, certain it is, that the people may, with much

propriety, commit the power to a distinct body from the legislature,

the executive, or the judicial. It surely does not follow, that

because they have given the power of making laws to the legislature,

that therefore they should likewise give them the power to do every

other act of sovereignty by which the citizens are to be bound and

affected.

Others, though content that treaties should be made in the mode

proposed, are averse to their being the SUPREME laws of the land.

They insist, and profess to believe, that treaties like acts of

assembly, should be repealable at pleasure. This idea seems to be

new and peculiar to this country, but new errors, as well as new

truths, often appear. These gentlemen would do well to reflect that

a treaty is only another name for a bargain, and that it would be

impossible to find a nation who would make any bargain with us,

which should be binding on them ABSOLUTELY, but on us only so long

and so far as we may think proper to be bound by it. They who make

laws may, without doubt, amend or repeal them; and it will not be

disputed that they who make treaties may alter or cancel them; but

still let us not forget that treaties are made, not by only one of

the contracting parties, but by both; and consequently, that as the

consent of both was essential to their formation at first, so must

it ever afterwards be to alter or cancel them. The proposed

Constitution, therefore, has not in the least extended the

obligation of treaties. They are just as binding, and just as far

beyond the lawful reach of legislative acts now, as they will be at

any future period, or under any form of government.

However useful jealousy may be in republics, yet when like bile

in the natural, it abounds too much in the body politic, the eyes of

both become very liable to be deceived by the delusive appearances

which that malady casts on surrounding objects. From this cause,

probably, proceed the fears and apprehensions of some, that the

President and Senate may make treaties without an equal eye to the

interests of all the States. Others suspect that two thirds will

oppress the remaining third, and ask whether those gentlemen are

made sufficiently responsible for their conduct; whether, if they

act corruptly, they can be punished; and if they make

disadvantageous treaties, how are we to get rid of those treaties?

As all the States are equally represented in the Senate, and by

men the most able and the most willing to promote the interests of

their constituents, they will all have an equal degree of influence

in that body, especially while they continue to be careful in

appointing proper persons, and to insist on their punctual

attendance. In proportion as the United States assume a national

form and a national character, so will the good of the whole be more

and more an object of attention, and the government must be a weak

one indeed, if it should forget that the good of the whole can only

be promoted by advancing the good of each of the parts or members

which compose the whole. It will not be in the power of the

President and Senate to make any treaties by which they and their

families and estates will not be equally bound and affected with the

rest of the community; and, having no private interests distinct

from that of the nation, they will be under no temptations to

neglect the latter.

As to corruption, the case is not supposable. He must either

have been very unfortunate in his intercourse with the world, or

possess a heart very susceptible of such impressions, who can think

it probable that the President and two thirds of the Senate will

ever be capable of such unworthy conduct. The idea is too gross and

too invidious to be entertained. But in such a case, if it should

ever happen, the treaty so obtained from us would, like all other

fraudulent contracts, be null and void by the law of nations.

With respect to their responsibility, it is difficult to

conceive how it could be increased. Every consideration that can

influence the human mind, such as honor, oaths, reputations,