The authors/submitters alone is responsible for
what is expressed
DID YOU KNOW
FROM THE WEBSITE WWW.MEXICA-MOVEMENT.ORG
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"Latino" denies us our true Nican Tlaca (Indigenous) identity and heritage. It keeps us slaves to European interests and Spaniard culture. Collectively, we have no Latin genealogy, Latin blood group, Latin history, or a common Latin culture of food or mythology. The "Latino" labeling of our people is a colonialist-racist act of Genocide---an attempt to "kill off" our people's true identity, history, independence, and our rights to our land and its wealth. Notice how this is not about "Latino Americans" in the U.S. This is about all of the "Spanish speaker" European Spaniards and their colonies of Nican Tlaca and Africans in the "Americas". What they are in fact doing is separating us from our Anahuac Heritage (Mexican and "Central American" Nican Tlaca identity and history) and enslaving us to their needs. THE CONCEPT OF HISPANIC is even more racist than "Latino" because it completely denies us our true Nican Tlaca heritage by not even referring to our colonized condition of being in "Latin America". We now become direct possessions of Spaniards. This is an attempt (successful so far) to actively reactivate the Spanish colonial empire through their colonials on our land. The media is their main tool in this parasitic renewed colonialist machine of the European Spaniards.
A side note: A
Mixed-blood is not a Criollo or a European.
Spaniards, Europeans, And Their Squatter
Descendants On Our Land Who Force Their Eurocentric, Racist, &
Anti-Indigenous "Hispanic" & "Latino" Labels On Our People!
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1) THEFT OF OUR
LAND was the initial crime of the
Europeans. We did not ever give up the ownership of our land, nor
did we ever invite Europeans onto our lands.
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THE LYNCHING OF SO CALLED NEGROES. (BLACK PEOPLE)
1885. . . . .184 1895. . . . .171 1886. . . . .138 1896. . . . .131 1887. . . . .122 1897. . . . .166 1888. . . . .142 1898. . . . .127 1889. . . . .176 1899. . . . .107 1890. . . . .127 1900. . . . .115 1891. . . . .192 1901. . . . .135 1892. . . . .235 1902. . . . .96 1893. . . . .200 1903(to Sept. 14, eight and a half months). . . . .76 1894. . . . .190 Total lynchings. Whites. Negroes. In the South. In the North. 1900. . . . . . . 115 8 107 107 8 1901. . . . . . . 135 26 107 121 14 1902. . . . . . . . 96 9 86 87 9 1903(to Sept. 14). . . . .76 13 63 66 10 Causes Assigned. 1900 1901.* 1902.† 1903. Murder 39 39 37 32 Rape 18 19 19 8 Attempted rape 13 9 11 5 Race prejudice 10 9 2 3 Assaulting whites 6 - 3 3 Threats to kill 5 - 1 - Burglary 4 1 - - Attempt to murder 4 9 4 6 Informing 2 - - - Robbery 2 “Theft” 12 1 - Complicity in murder 2 6 3 5 Rape and murder - - - 1 Suspicion of murder 2 3 1 3 Suspicion of robbery 1 - - - No offence 1 - - - Arson 2 4 - - Suspicion of arson 1 - - - Aiding escape of murderer 1 - 1 - Insulting a white woman - 1 - - Cattle and horse stealing - 7 1 - Quarrel over profit-sharing - 5 - - Suspicion of rape - 1 - - Suspicion of rape and murder - 1 - - Unknown offences 2 6 - 4 Mistaken identity - 1 1 3 NOTE.—The lynchings in the various States and Territories in 1900 were as follows: Alabama 8 New York 0 Arkansas 6 Nevada 0 California 0 North Carolina 3 Colorado 3 North Dakota 0 Connecticut 0 Ohio 0 Delaware 0 Oregon 0 Florida 9 Pennsylvania 0 Georgia 16 Rhode Island 0 Idaho 0 South Carolina 2 Illinois 0 South Dakota 0 Indiana 3 Tennessee 7 Iowa 0 Texas 4 Kansas 2 Vermont 0 Kentucky 1 Virginia 6 Louisiana 20 West Virginia 2 Maine 0 Wisconsin 0 Maryland 1 Washington 0 Massachusetts 0 ! Wyoming 0 Michigan 0 Arizona 0 Minnesota 0 District of Columbia 0 Mississippi 20 New Mexico 0 Missouri 2 Utah 0 Montana 0 Indian Territory 0 Nebraska 0 Oklahoma 0 New Jersey 0 Alaska 0 New Hampshire 0 * In 1901 one Indian and one Chinaman lynched. † In 1902 one Indian lynched. From these tables certain facts may be deduced. The first is that, in the year of which an analysis is given (1900), over nine-tenths of the lynchings occurred in the South, where only about one-third of the population of the country were, but where nine- tenths of the negroes were; secondly, that, of these lynchings, about nine-tenths were of negroes and one-third were in the three States where the negroes are most numerous; thirdly, that, while the lynchings appear to be diminishing at the South, the ratio, at least, is increasing at the North. It further appears that, though lynching began as a punishment for assault on white women, it has extended until less than one-fourth of the instances are for this crime, while over three-fourths of them are for murder, attempts at murder, or some less heinous offence. This may be accounted for, in part, by the fact that the murders in the South partake somewhat of the nature of race-conflicts. Over 2,700 lynchings in eighteen years are enough to stagger the mind. Either we are relapsing into barbarism, or there is some terrific cause for our reversion to the methods of mediaevalism, and our laws are inefficient to meet it. The only gleam of light is that, of late years, the number appears to have diminished. To get at the remedy, we must first get at the cause. Time was when the crime of assault was unknown throughout the South. During the whole period of slavery, it did not exist, nor did it exist to any considerable extent for some years after Emancipation. During the War, the men were away in the army, and the negroes were the loyal guardians of the women and children. On isolated plantations and in lonely ! neighbor hoods, women were as secure as in the streets of Boston or New York. Then came the period and process of Reconstruction, with its teachings. Among these was the teaching that the negro was the equal of the white, that the white was his enemy, and that he must assert his equality. The growth of the idea was a gradual one in the negro’s mind. This was followed by a number of cases where members of the negro militia ravished white women; in some instances in the presence of their families.*[A] The result of the hostility between the Southern whites and Government at that time was to throw the former upon their own acts for their defence or revenge, with a consequent training in lawless punishment of acts which should have been punished by law. And here lynching had its evil origin. It was suggested some time ago, in a thoughtful paper read by Professor Wilcox, that a condition something like this had its rise in France during the religious wars. The first instance of rape, outside of these attacks by armed negroes, and of consequent lynching, that attracted the attention of the country was a case which occurred in Mississippi, where the teaching of equality and of violence found one of its most fruitful fields. A negro dragged a woman down into the woods, and tying her, kept her bound there a prisoner for several days, when he butchered her. He was caught and was lynched. With the resumption of local power by the whites came the temporary and partial ending of the crimes of assault and of lynching. As the old relation, which had survived even the strain of Reconstruction, dwindled with the passing of the old generation from the stage, and the “New Issue” with the new teaching took its place, the crime broke out again with renewed violence. The idea of equality began to percolate more extensively among the negroes. In evidence of it is the fact that since the assaults began again they have been chiefly directed against the plainer order of people, instances of ! attacks on women of the upper class, though not unknown, being of rare occurrence.*[B] Conditions in the South render the commission of this crime peculiarly easy. The white population is sparse, the forests are extensive, the officers of the law distant and difficult to reach; but, above all, the negro population has appeared inclined to condone the fact of mere assault. Twenty-five years ago, women went unaccompanied and unafraid throughout the South, as they still go throughout the North. To-day, no white woman, or girl, or female child, goes alone out of sight of the house except on necessity; and no man leaves his wife alone in his house, if he can help it. Cases have occurred of assault and murder in broad day, within sight and sound of the victim’s home. Indeed, an instance occurred not a great while ago in the District of Columbia, within a hundred yards of a fashionable drive, when, about three o’clock of a bright June day, a young girl was attacked within sight and sound of her house, and when she screamed her throat was cut. So near to her home was the spot that her mother and an officer, hearing her cries, reached her before life was extinct. For a time, the ordinary course of the law was, in the main, relied on to meet the trouble; but it was found that, notwithstanding the inevitable infliction of the death penalty, several evils resulted therefrom. The chief one was that the ravishing of women, instead of diminishing, steadily increased. The criminal, under the ministrations of his preachers, usually professed to have “gotten religion,” and from the shadow of the gallows called on his friends to follow him to glory. So that the punishment lost to these emotional people much of its deterrent force, especially where the real sympathy of the race was mainly with the criminal rather than with his victim. Another evil was the dreadful necessity of calling on the innocent victim, who, if she survived, as she rarely did, was already bowed to the earth by shame, to relate in public! the sto ry of the assault--an ordeal which was worse than death. Yet another was the delay in the execution of the law. With these, however, was one other which, perhaps, did more than all the rest together to wrest the trial and punishment from the Courts and carry them out by mob-violence. This was the unnamable brutality with which the causing crime was, in nearly every case, attended. The death of the victim of the ravisher was generally the least of the attendant horrors. In Texas, in Mississippi, in Georgia, in Kentucky, in Colorado, as later in Delaware, the facts in the case were so unspeakable that they have never been put in print. They could not be put in print. It is these unnamable horrors which have outraged the minds of those who live in regions where they have occurred, and where they may at any time occur again, and, upsetting reason, have swept from their bearings cool men and changed them into madmen, drunk with the lust of revenge. Not unnaturally, such barbarity as burning at the stake has shocked the sense of the rest of the country, and, indeed, of the world. But it is well for the rest of the country, and for the world, to know that it has also shocked the sense of the South, and, in their calmer moments, even the sense of those men who, in their frenzy, have been guilty of it. Only, a deeper shock than even this is at the bottom of their ferocious rage—the shock which comes from the ravishing and butchery of their women and children. It is not necessary to be an apologist for barbarity because one states with bluntness the cause. The stern underlying principle of the people who commit these barbarities is one that has its root deep in the basic passions of humanity; the determination to put an end to the ravishing of their women by an inferior race, no matter what the consequence. For a time, a speedy execution by hanging was the only mode of retribution resorted to by the lynchers; then, when this failed of its purpose, a more savage method was essayed, born of a! savage fury at the failure of the first, and a stern resolve to strike a deeper terror into those whom the other method had failed to awe. The following may serve as an illustration. Ten or twelve years ago, the writer lectured one afternoon in the early spring in a town in the cotton-belt of Texas--one of the prettiest towns in the Southwest. The lecture was delivered in the Court-house. The writer was introduced by a gentleman who had been a member of the Confederate Cabinet and a Senator of the United States, and the audience was composed of refined and cultured people, representing, perhaps, every State from Maine to Texas. Two days later, the papers contained the account of the burning at the stake in this town of a negro. He had picked up a little girl of five or six years of age on the street where she was playing in front of her home, and carried her off, telling her that her mother had sent him for her; and when she cried, he had soothed her with candy which, with deliberate prevision, he had bought for the purpose. When she was found, she was unrecognizable. With her little body broken and mangled, he had cut her throat and thrown her into a ditch. A strong effort was made to save him for the law, but without avail: the people had reverted to the primal law of vengeance. Farmers came from fifty miles to see that vengeance was exacted. They had resolved to strike terror into the breasts of all, so that such a crime could never occur again. This was, perhaps, the second or third instance of burning in the country. Of late, lynching at the stake has spread beyond the region where it has such reason for existence as may be given by the conditions that prevail in the South. Three frightful instances by burning have occurred recently in Northern States, in communities where some of these conditions were partly wanting. The horror of the main fact of lynching was increased, in two of the cases, by a concerted attack on a large element of the negro population which was wholly i! nnocent. Even the unoffending negroes were driven from their homes, a consequence which has never followed in the South, where it might seem there was more occasion for it. It thus appears that the original crime, and also the consequent one in its most brutal form, are not confined to the South, and, possibly, are only more frequent there because of the greater number of negroes in that section. The deep racial instincts are not limited by geographical bounds. These last-mentioned lynchings were so ferocious, and so unwarranted by any such necessity, real or fancied, as may be thought to exist at the South by reason of the frequency of assault and the absence of a strong police force, that they not unnaturally called forth almost universal condemnation. The President felt it proper to write an open letter, commending the action of the Governor of Indiana on the proper and efficient exercise of his authority to uphold the law and restore order in his State. But who has ever thought it necessary to commend the Governors of the Southern States under similar circumstances? The militia of some of the Southern States are almost veterans, so frequently have they been called on to protect wretches whose crimes stank in the nostrils of all decent men. The Governor of Virginia boasted, a few years ago, that no lynching should take place during his incumbency, and he nearly made good his boast; though, to do so, he had to call out at one time or another almost the entire force of the State. Editorials in some of the Eastern papers note with astonishment recent instances where law-officers in the South have protected their prisoners or eluded a mob. The writers of these editorials know so little of the South that one is scarcely surprised at their ignorance. But men are hanged by law for this crime of assault every few months in some State in the South. A few years ago, Sheriff Smith, of Birmingham, protected a murderer at the cost of many lives; a little later, Mayor Prout, of Roanoke, defended a n! egro rav isher and murderer, and, though the mob finally succeeded in their aim, six men were killed by the guards before the jail was carried. These are only two of the many instances in which brave and faithful officers have, at the risk of their lives, defended their charges against that most terrible of all assailants—a determined mob.* *The following table is from the Chicago Tribune. The number of legal executions in 1900 was 118, as compared with 131 in 1899, 109 in 1898, 128 in 1897, 122 in 1896, 132 in 1895, 132 in 1894, 126 in 1893, and 107 in 1892. The executions in the several States and Territories were in 1900 as follows: Alabama 4 New York 3 Arkansas 0 Nevada 0 California 5 North Carolina 9 Colorado 0 North Dakota 1 Connecticut 1 Ohio 1 Delaware 0 Oregon 1 Florida 1 Pennsylvania 15 Georgia 14 Rhode Island 0 Idaho 2 South Carolina 3 Illinois 0 South Dakota 0 Indiana 0 Tennessee 4 Iowa 0 Texas 18 Kansas 0 Vermont 0 Kentucky 0 Virginia 7 Louisiana 6 West Virginia 0 Maine 0 Wisconsin 0 Maryland 3 Wyoming 0 Massachusetts 0 Washington 2 Michigan 0 Arizona 4 Minnesota 0 District of Columbia 3 Mississippi 1 New Mexico 0 Missouri 3 Utah 0 Montana 3 Indian Territory 0 Nebraska 0 Oklahoma 0 New Jersey 4 Alaska 0 New Hampshire 0 There were 80 hanged in the South and 39 in the North, of whom 60 were whites, 58 were blacks, and one a Chinaman. The crimes for which they were executed were: murder, 113; rape, 5; arson, 1. Thus, of the 119 hangings, about two-thirds (80) were in the South and one-third (39) in the North; about one-half (60) of the entire number were of whites, and one-half (58) were of blacks. So, the South appears to have done its part in the matter of punishing by law as well as by violence. For a time, the assaults by negroes were confined to young women who were caught alone in solitary and secluded places. The company even of a child was sufficient to protect ! them. Th en the ravishers grew bolder, and attacks followed on women when they were in company. And then, not content with this, the ravishers began to attack women in their own homes. Sundry instances of this have occurred within the last few years. As an illustration, may be cited the notorious case of Samuel Hose, who, after making a bet with a negro preacher that he could have access to a white woman, went into a farmer’s house while the family, father, mother, and child, were at supper; brained the man with his axe; threw the child into a corner with a violence which knocked it senseless, and ravished the wife and mother with unnamable horrors, butchered her and bore away with him the indisputable proof of having won his wager. He was caught and was burnt. Another instance, only less appalling, occurred two years ago in Lynchburg, Virginia, where the colored janitor of a white female school, who had been brought up and promoted by the Superintendent of Schools, and was regarded as a shining example of what education might accomplish with his race, entered the house of a respectable man one morning, after the husband, who was a foreman in a factory, had gone to his work; and ravished the wife, and then putting his knee on her breast, coolly cut her throat as he might have done a calf’s. There was no attempt at lynching; but the Governor, resolved to preserve the good name of the commonwealth, felt it necessary to order out two regiments of soldiers, in which course he was sustained by the entire sentiment of the State. These cases were neither worse nor better than many of those which have occurred in the South in the last twenty years, and in that period hundreds of women and a number of children have been ravished and slain. Now, how is this crime of assault to be stopped? For stopped it must be, and stopped it will be, whatever the cost. One proposition is that separation of the races, complete separation, is the only remedy. The theory appears Utopian. Colonization has been! the dre am of certain philanthropists for a hundred years. And, meantime, the negroes have increased from less than a million to nine millions. They will never be deported; not because we have not the money, for an amount equal to that spent in pensions during three years would pay the expenses of such deportation, and an amount equal to that paid in six years would set them up in a new country. But the negroes have rights; many of them are estimable citizens; and even the body of them, when well regulated, are valuable laborers. It might, therefore, as well be assumed that this plan will never be carried out, unless the occasion becomes so imperative that all other rights give way to the supreme right of necessity. It is plain, then, that we must deal with the matter in a more practicable manner, accepting conditions as they are, and applying to them legal methods which will be effective. Lynching does not end ravishing, and that is the prime necessity. Most right- thinking men are agreed as to this. Indeed, lynching, through lacking the supreme principle of law, the deliberateness from which is supposed to come the certainty of identification, fails utterly to meet the necessity of the case even as a deterrent. Not only have assaults occurred again and again in the same neighborhood where lynching has followed such crime; but, a few years ago, it was publicly stated that a negro who had just witnessed a lynching for this crime actually committed an assault on his way home. However this may be, lynching as a remedy is a ghastly failure; and its brutalizing effect on the community is incalculable. The charge that is often made, that the innocent are sometimes lynched, has little foundation. The rage of a mob is not directed against the innocent, but against the guilty; and its fury would not be satisfied with any other sacrifices than the death of the real criminal. Nor does the criminal merit any consideration, however terrible the punishment. The real injury is to the perpetrators of the crime ! of destr oying the law, and to the community in which the law is slain.[C] It is pretty generally conceded that the “law’s delay” is partly responsible for the “wild justice” of mob vengeance, and this has undoubtedly been the cause of many mobs. But it is far from certain if any change in the methods of administration of law will effect the stopping of lynching; while to remedy this evil we may bring about a greater peril. Trial by jury is the bed-rock of our liberties, and the inherent principle of such trial is its deliberateness. It has been said that the whole purpose of the Constitution of Great Britain is that twelve men may sit in the jury-box. The methods of the law may well be reformed; but any movement should be jealously scanned which touches the chief barrier of all liberty. The first step, then, would appear to be the establishment of a system securing a reasonably prompt trial and speedy execution by law, rather than a wholesome revolution of the existing system. Many expedients have been suggested; some of the most drastic by Northern men. One of them proposed, not long since, that to meet the mob--spirit, a trial somewhat in the nature of a drum-head court-martial might be established by law, by which the accused may be tried and, if found guilty, executed immediately. Others have proposed as a remedy emasculation by law; while a Justice of the Supreme Court has recently given the weight of his personal opinion in favor of prompt trial and the abolishment of appeals in such cases. Even the terrible suggestion has been made that burning at the stake might be legalized! These suggestions testify how grave the matter is considered to be by those who make them. But none of these, unless it be the one relating to emasculation, is more than an expedient. The trouble lies deeper. The crime of lynching is not likely to cease until the crime of ravishing and murdering women and children is less frequent than it has been of late. And this crime, which is will-nigh wholly con! fined to the negro race, will not greatly diminish until the negroes themselves take it in hand and stamp it out. From recent developments, it may be properly inferred that the absence of this crime during the period of Slavery was due more to the feeling among the negroes themselves than to any repressive measures on the part of the whites. The negro had the same animal instincts in Slavery that he exhibits now; the punishment that follows the crime now is as certain, as terrible, and as swift as it could have been then. So, to what is due the alarming increase of this terrible brutality? To the writer it appears plain that it is due to two things: first, to racial antagonism and to the talk of social inequality, from which it first sprang, that inflames the ignorant negro, who has grown up unregulated and undisciplined; and, secondly, to the absence of a strong restraining public opinion among the negroes of any class, which alone can extirpate the crime. In the first place, the negro does not generally believe in the virtue of women. It is beyond his experience. He does not generally believe in the existence of actual assault. It is beyond his comprehension. In the next place, his passion, always his controlling force, is now, since the new teaching, for the white woman.*[D] That there are many negroes who are law-abiding and whose influence is for good, no one who knows the worthy members of the race, those who represent the better element, will deny. But while there are, of course, notable exceptions, they are not often of the “New Issue,” nor even generally among the prominent leaders: those who publish papers and control conventions. As the crime of rape had its baleful origin in the teaching of equality and the placing of power in the ignorant negroes’ hands, so its perpetration and increase have undoubtedly been due in large part to the same teaching. The intelligent negro may understand what social equality truly means; but to the ignorant and brutal young negro, it ! signifie s but one thing: the opportunity to enjoy, equally with white men, the privilege of cohabiting with white women. This the whites of the South understand; and if it were understood abroad, it would serve to explain some things which have not been understood hitherto. It will explain, in part, the universal and furious hostility of the South to even the least suggestion of social equality. A close following of the instances of rape and lynching, and the public discussion consequent thereon, has led the writer to the painful realization that even the leaders of the negro race--at least, those who are prominent enough to hold conventions and write papers on the subject--have rarely, by act or word, shown a true appreciation of the enormity of the crime of ravishing and murdering women. Their discussion and denunciation have been almost invariably and exclusively devoted to the crime of lynching. Underlying most of their protests is the suggestion, that the victim of the mob is innocent and a martyr. Now and then, there is a mild generalization on the evil of lawbreaking and the violation of women; but, for one stern word of protest against violating women and cutting their throats, the records of negro meetings will show many against the attack of the mob on the criminal. And, as to any serious and determined effort to take hold of and stamp out the crime that is blackening the entire negro race to- day, and arousing against them the fatal and possibly the undying enmity of the stronger race, there is, with the exception of the utterances of a few score individuals like Booker Washington, who always speaks for the right, Hannibal Thomas and Bishop Turner, hardly a trace of such a thing. A crusade has been preached against lynching, even as far as England; but none has been thought of against the ravishing and tearing to pieces of white women and children. Happily, there is an element of sound-minded, law-abiding negroes, representative of the old negro, who without parade stand for good order! , and do what they can to repress lawlessness among their people. But for this class and the kindly relations which are preserved between them and the whites, the situation in the South would long since have become unbearable. These, however, are not generally among the leaders, and, unfortunately, their influence is not sufficiently extended to counteract the evil influences which are at work with such fatal results. One who reads the utterances of negro orators and preachers on the subject of lynching, and who knows the negro race, cannot doubt that, at bottom, their sympathy is generally with the “victim” of the mob, and not with his victim. Until the negroes shall create among themselves a sound public opinion which, instead of fostering, shall reprobate and sternly repress the crime of assaulting women and children, the crime will never be extirpated, and until this crime is stopped the crime of lynching will never be extirpated. Lynching will never be done away with while the sympathy of the whites is with the lynchers, and no more will ravishing be done away with while the sympathy of the negroes is with the ravisher. When the negroes shall stop applying all their energies to harboring and defending negroes, no matter what their crime so it be against the whites, and shall distinguish between the law-abiding negro and the law-breaker, a long step will have been taken. Should the negroes sturdily and faithfully set themselves to prevent the crime of rape by members of that race, it could be stamped out. Should the whites set themselves against lynching, lynching would be stopped. The remedy then is plain. Let the negroes take charge of the crime of ravishing and firmly put it away from them, and let the whites take charge of the crime of lynching and put it away from them. It is time that the races should address themselves to the task; for it is with nations as with individual men; whatsoever they sow that shall they also reap. It is the writer’s belief that the arrest and ! the prom pt handing over to the law of negroes by negroes, for assault on white women, would do more to break up ravishing, and to restore amicable relations between the two races, than all the resolutions of all the Conventions and all the harangues of all the politicians. It has been tried in various States to put an end to lynching by making the county in which the lynching occurs liable in damages for the crime. It is a good theory; and, if it has not worked well, it is because of the difficulty of executing the provision. Could some plan be devised to array each race against the crime to which it is prone, both rape and lynching might be diminished, if not wholly prevented. The practical application of such a principle is difficult, but, perhaps, it is not impossible. It is possible that in every community negroes might be appointed officers of the law, to look exclusively after lawbreakers of their own race. The English in the East manage such matters well, under equally complicated and delicate conditions. For example, in the Island of Malta, where the population are of different classes among whom a certain jealousy exists, there are several classes of police: the naval police, the military police, and the civil or municipal police. To each of these is assigned more especially the charge of one of the three classes of whom the population of the Island is composed. Again, in Hong Kong, where the situation is even more delicate, there are several classes of police: the English, the Chinese, and the Indian police. Only the first are empowered to make general arrests; the others have powers relating exclusively to the good order of the races to which they belong, though they may in all cases be called in to assist the English police. Somewhat in the same way, the negroes might be given within their province powers sufficiently full to enable them to keep order among their people, and they might on the other hand be held to a certain accountability for such good order. It might even be ! required that every person should be listed and steadily kept track of, as is one in Germany at present. The recent vagrant laws of Georgia, where there are more negroes than in the entire North, are an attempt in this direction. In the same way, the white officials charged with the good order of the county or town might be given enlarged powers of summoning posses, and might be held to a high accountability. For example, ipso facto forfeiture of the official bond and removal from office, with perpetual disability to hold any office again, might be provided as a penalty for permitting any persons to be taken out of their hands. Few ravishings by negroes would occur if the more influential members of the race were held accountable for the good order of their race in every community; and few lynchings would occur, at least after the prisoners were in the hands of the officers of the law, if those officers, by the mere fact of relinquishing their prisoners should be disqualified from ever holding office again. These suggestions may be as Utopian as others which have been made; but if they cannot be carried out, it is because the ravishings by negroes and the murders by mobs have their roots so deep in racial instincts that nothing can eradicate them, and in such case the ultimate issue will be a resort to the final test of might, which in the last analysis underlies everything. |
WHERE THE NATIVE AMERICANS GOT THE NAME INDIANS
It was stated by Russell Means that he was given
documents
from scholars in Turin, Italy (the true home of the Shroud of Turin) that
the Native people of this continent were called "Indians", not because of so
called confusion between this land and India, but because the early
explorers to this continent saw the spiritual nature of the Original Man
living here and wrote back to Italy and Spain and said "these people are
Indios (In-Dios)" meaning, In God or with God.
Please share this little known fact with the Universal Zulu Nation. Respect
due, Bro. Ernie Panicciolio
That Phoebe Fraunces a Black women saved George Washington's life on the eve
of the Revolutionary War. The British had a agent Irishman name Thomas Hickey,
who was George Washingtons bodyguard who had an intimate friendship with Fraunces and gave her
a dish of poisoned peas to served Washington when he came for dinner. She became suspicious of the Irishmans
actions and warned Washington, who threw away the peas into the yard, where some chickens ate the peas and fell dead
. For Hickey assassination attempt on Washington's life, he was hanged before a crowed of 20,000 in
New York City. Both Miss Fraunces and her father, Black Sam were officially recognized by the Continental
Congress for their service to the fledging country and given a sum of money. When George became Americas
President, he appointed Fraunces White House steward.
That President Ulysses Grant was probably the first and only American President to be arrested, and that it was a Black
District of Columbia policeman by the name of Officer William West who performed the deed in
the 19th century. Officer West book the President for violating the district speeding law and for professionalism as an officer of the law,
the President later on promoted Officer West to a mounted policeman. President Grant not want to be in the public eye as someone who is above the law.
HISTORY LINKS
Noontide Press Moors Paper Writing :: Book Reports :: American ... KKK SITES
Moroccan African Moors Mulims First to America? Islam in America
Muslim Legacy in Early Americas - W. Africans, Moors tribal Terrorism
American History From About African-Amercian History The African African Americans Indians
The African-American Mosaic Exhibition (Library of Congress) Native Americans
The Gilder Lehrman Institute of American History America's West - Development & History
American Indian Genealogy and Media Sites by Phil Konstantin American Indian History Resources
On This Date in North American Indian History by Phil Konstantin African Americans - Black Indians
American President: Presidential History Resources American President
The North Star: A Journal of African-American Religious History THE SLAUGHTER
Black Indians (Afro-Native Americans) American Women's History: A Research Guide
Documents For The Study Of American History American Military History LYNCHINGS
American History, Page 1, Spanish Conquest of Native America American History Sites
Europe blackantiquity
African Presence in the Americas 1492 - 1992
The 1700's
http://www.phoenixmasonry.org/masonicmuseum/fraternalism/red_men.htm
http://www.abaris.net/freemasonry/marin_red_men.htm
The African Presence in the Americas many centuries before Columbus
http://www.abaris.net/freemasonry/marin_red_men.htm
Colonization: African-American Mosaic Exhibition
http://freepages.history.rootsweb.com/~shannara/Emblems/emblemidx.htm
Colonization Civil Rights AFRO-AMERICAN ALMANAC - African-American History Resource
Our Shared History, African American Heritage African American History: Welcome
www.martygrant.com/gen/origins.htm
Hitchhiker's
Guide to American History
Popular Songs in American History
VODOUN
American Cultural History - Decade 1920-1929 Center for History of Physics Home Page
The Avalon Project : Chronology of American History Money in North American History
American History Government
African American History - Black History Resources - Academic Info
Colonial American History Social Studies Resources Historical Text Archive BLACK INDIANS
The Journal of the Moorish Paradigm First Nations Histories
LATIN AMERICA-COLONIAL ECONOMIC HISTORY NEVADA-19TH-CENTURY MINING HISTORY
Civil War American History 1860 1865 Timeline Battle Map Maps of Native American Nations, History, Info
Bibliography II NATIVE AMERICANS A History of RACISM
1499 Amerigo Vespucci and Alonso de Hojeda sail for South America and reach mouth of Amazon
1502 Vespucci, after second voyage, concludes South America is not part of India and names it Mundus Novus.
1513 Balboa crosses Isthmus of Panama and reaches Pacific for the first time, but believes it to be part of the Indian Ocean.
1513 Ponce de Leon, searching for the "fountain of youth" reaches and names Florida.
1519 Cortes enters Tenochtitlan (Mexico City); Domenico de Pineda explores Gulf of Mexico from Florida to Vera Cruz.
1522 Andagoya discovers Peru
1523 Jamaica founded.
1531 Pizarro invades Peru, conquers Incas.
1535 Lima founded.
1536 Buenos Aires founded.
1538 Bogota founded.
1539 First printing press in New World set up in Mexico City.
1540 Grand Canyon discovered.
1541 De soto discovers Mississippi River; Coronado explores from New Mexico across Texas, Oklahoma, and eastern Kansas.
1549 Jesuit missionaries arrive in South America.
1551 Universities founded in Lima and Mexico City;
1565 ST. Augustine founded (razed by Francis Drake in 1586).
1567 Rio de Janeiro founded.
1605 Santa Fe, New Mexico founded (date in dispute; some say 1609).
A Lesson in
Black History
The Statue of Liberty
It is hard to believe that after my many years of schooling (secondary and
post) the following facts about the Statue of Liberty were never taught.
Hundreds of thousands (if not millions) of people including myself have
visited the Statue of Liberty over the years but yet I'm unable to find one
person who knows the true history behind the Statue...amazing!
Yes, amazing that so much important Black history (such as this) is hidden
from us (Black and White). What makes this even worse is the fact that the
current twist on history perpetuates and promotes white supremacy at the
expense of Black Pride!
During my visit to France I saw the original Statue of Liberty. However,
there was a difference...the statue in France is BLACK!!!!!!
"Ya learn something new everyday!"
The Statue of Liberty was originally a Black woman. But, as memory serves,
it was because the model was Black. In a book called "The Journey of The
Songhai People," as Dr. Jim Haskins (a member of the National Education
Advisory Committee of the Liberty-Ellis Island Committee, professor of
English at the University of Florida, and prolific Black author) points out
that is what stimulated the original idea for that 151 foot statue in the
harbor. He says that the idea for the creation of the statue initially was
to acknowledge the part that Black soldiers played in the ending of Black
African Bondage in the United States.
It was created in the mind of the French historian Edourd de Laboulaye,
Chairman of the French Anti-Slavery Society, who, together with sculptor
Frederic Auguste Bartholdi, proposed to the French government that the
people of France present to the people of the United States through the
American Abolitionist Society, the gift of a Statue of Liberty in
recognition of the fact that Black soldiers won the Civil War in the United
States. It was widely known then that it was Black Soldiers who played the
pivotal role in winning the war, and this gift would be a tribute to their
prowess.
Suzanne Nakasian, director of the Statue of Liberty, Ellis Island
Foundations' National Ethnic Campaign said that the Black Americans' direct
connection to Lady Liberty is unknown to the majority of Americans, BLACK
or WHITE.
When the statue was presented to the US. Minister to France in 1884, it is
said that he remonstrated that the dominant view of the broken shackles
would be offensive to the U.S. South because the statue was a reminder of
Blacks winning their freedom. It was a reminder to a beaten South of the
ones who caused their defeat, their despised former captives.
Documents of Proof:
1.) You may go and see the original model of the Statue of Liberty, with
the broken chains at her feet and in her left hand. Go to the Museum of the
City of NY, Fifth Avenue and 103rd Street (212) 534-1672 or call the same
number and dial ext. 208 and speak to Peter Simmons and he can send you
some documentation.
2.) Check with the N. Y. Times magazine, part II May 18, 1986.
3.) The dark original face of the Statue of Liberty can be seen in the N.
Y. Post June 17, 1986, also the Post stated the reason for the broken
chains at her feet.
4.) Finally, you may check with the French Mission or the French Embassy at
the U.N. or in Washington, D.C. and ask for some original French material
on the Statue of Liberty, including the Bartholdi original model. You can
call (202) 944-6060 or 6400.
Please pass this information along! Be sure to send it to people with
children! Open a dialog and discuss it with your friends! Let this be the
beginning of your quest for the Truth about American History past and
present!
ORIGINS
OF THE POLICE DEPARTMENT
The contests herein give a historical development of
Police forces in the U.S.
19th Century
Organized polices forces as we know them today are a comparatively recent thing in U.S. history. Until the middle of the 19th century, the cities were usually guarded by what was called the “watch system”, meaning a handful of men who patrolled the streets during the night, sometimes calling out the time and the state of the weather. The night watch system was noted for disorganization and inefficiency. Little was expected of it and it wasn’t considered an important service to deserve much money or attention. Watchmen were notorious for falling asleep or being drunk on the job.
1838
The first major change in this system came when Boston introduced a “DAY” watch, composed of six men, to compliment its night watch.
1844
New York City created a “Day and Night Police”, the first to combine both day and night watches into a single force. This was the forerunner of the modern city police, and its example was followed by many cities;
1851 Chicago
1852 Cincinnati and New Orleans
1854 Philadelphia and Boston
1857 Baltimore and Newark
By the 1870’s, virtually every major city in the U.S. had created an organized police force along the lines that are still the basis of most police organizations in this country.
The usual answer given by liberal police historians stresses the increasing population density and ethnic diversity in the cities that came with the beginning of massive immigration from the 1830’s onward. This explanation only scratches the surface and is basically misleading. Although increasing population and ethnic diversity were important features of this period, there is no reason why, in themselves, they should call forth greatly increased use of police force.
The basic social process going on from the 1830’s to the 1860’s was the beginning of industrial capitalism in the United States, and the emergence of the typical class structure that industrial capitalism creates. Before this time, of course there were poor people in the cities: but capitalist industrialization dramatically increased their numbers, their visibility, and their militancy, and therefore increased the problems of “social control.”
Regional Police Department: Northeast/Midwest
Immigration from the American countryside and from overseas (at this time mainly from Ireland and Germany) provided a steady supply of cheap labor for the growing factories of the industrial Northeast and Midwest. Between 1810 and 1870, the number of factory workers in the U.S.; as a whole increased from about 75 thousand to about 2.5 million. This early industrial work force was subject to harsh exploitation in the factories and grim living conditions in the growing slums of the industrial cities.
Militant conflict between workers and owners began on a large scale with the first stirrings of a significant American Labor Movement. At the same time, rioting in the cities was common and rates of crime were high. The wealthy and powerful began to define working people and the unemployed poor as the “dangerous classes” and to demand more effective means of controlling and disciplining them. They had an example available over seas since England had undergone the process of capitalist industrialization somewhat earlier, they also were the first to develop modern police forces, and most of the early U.S. police departments took their basic form from the London police , created in 183?
The development of the police was somewhat different in the south and southwest. In the south, the early urban police forces were designed mainly to control slave and free blacks in the cities, and in the southwest the early police were developed in connection with the subordination of Mexicans and Native Americans, rather than an immigrant industrial working class.
Brutality and unpredictability in behavior.
Although these early police forces were designed as instruments of class domination, they were generally ineffective instruments and were usually regarded as such. There were two main reasons for this;
1. The early police were sometimes to close to the
Classes and communities they were suppose to
Be controlling
2. When they were not, they relied almost entirely
On the most primitive method of control, BRUTE FORCE
Although designed to intimidate and control the “dangerous classes”, the police were usually recruited at least partly from those classes and were therefore unreliable often as enforcers of the interests of property and power. It’s doubtful that the police forces of many cities ever consistently represented the interests of the poor, but they were sometimes sympathetic with them to a significant extent. This became especially clear during some of the labor violence of the 1880’s, when several local police forces refused to intimidate strikers, and military troops had to be called in.
The development of the National Guard system, which took place between 1877 and 1892, was one result of this unreliability of the local police. Originally officered mainly by business and professional men, and sometimes directly subsidized by wealthy industrialists, the National Guard was specifically designed to be a more direct and therefore more reliable instrument of the wealthy and propertied.
Bell
did not invent telephone, US rules
Scot accused of finding fame by stealing Italian's ideas
Rory Carroll in Rome
Monday June 17, 2002
The Guardian
Italy hailed the redress of a historic injustice yesterday after the
US Congress recognised an impoverished Florentine immigrant as the
inventor of the telephone rather than Alexander Graham Bell.
Historians and Italian-Americans won their battle to persuade
Washington to recognise a little-known mechanical genius, Antonio
Meucci, as a father of modern communications, 113 years after his
death.
The vote by the House of Representatives prompted joyous claims in
Meucci's homeland that finally Bell had been outed as a perfidious
Scot who found fortune and fame by stealing another man's work.
Calling the Italian's career extraordinary and tragic, the resolution
said his "teletrofono", demonstrated in New York in 1860, made him
the inventor of the telephone in the place of Bell, who had access to
Meucci's materials and who took out a patent 16 years later.
"It is the sense of the House of Representatives that the life and
achievements of Antonio Meucci should be recognised, and his work in
the invention of the telephone should be acknowledged," the
resolution stated.
Bell's immortalisation in books and films has rankled with
generations of Italians who know Meucci's story. Born in 1808, he
studied design and mechanical engineering at the Academy of Fine Arts
in Florence, and as a stage technician at the city's Teatro della
Pergola developed a primitive system to help colleagues communicate.
In the 1830s he moved to Cuba and, while working on methods to treat
illnesses with electric shocks, found that sounds could travel by
electrical impulses through copper wire. Sensing potential, he moved
to Staten Island, near New York City, in 1850 to develop the
technology.
When Meucci's wife, Ester, became paralysed he rigged a system to
link her bedroom with his neighbouring workshop and in 1860 held a
public demonstration which was reported in New York's Italian-
language press.
In between giving shelter to political exiles, Meucci struggled to
find financial backing, failed to master English and was severely
burned in an accident aboard a steamship.
Forced to make new prototype telephones after Ester sold his machines
for $6 to a secondhand shop, his models became more sophisticated. An
inductor formed around an iron core in the shape of a cylinder was a
technique so sophisticated that it was used decades later for long-
distance connections.
Meucci could not afford the $250 needed for a definitive patent for
his "talking telegraph" so in 1871 filed a one-year renewable notice
of an impending patent. Three years later he could not even afford
the $10 to renew it.
He sent a model and technical details to the Western Union telegraph
company but failed to win a meeting with executives. When he asked
for his materials to be returned, in 1874, he was told they had been
lost. Two years later Bell, who shared a laboratory with Meucci,
filed a patent for a telephone, became a celebrity and made a
lucrative deal with Western Union.
Meucci sued and was nearing victory - the supreme court agreed to
hear the case and fraud charges were initiated against Bell - when
the Florentine died in 1889. The legal action died with him.
Yesterday the newspaper La Repubblica welcomed the vote to recognise
the Tuscan inventor as a belated comeuppance for Bell, a "cunning
Scotsman" and "usurper" whose per- fidy built a communications
empire.
From:
EIngram517
Startling Facts.....
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
These facts are very interesting. Here are
a few of the things learned
at the Black Think Tank this week.
Facts:
1. The first Americans or native Americans going back to
13,000 BC were
black! Look up the Folsom people who
lived in Arizona.
2. Best reason to stop our use of the term African
American and say
Black. A white person who was born in Africa, who moves
to America is an
African American and qualifies for financial aid, etc., but will get the
jobs/pay privileges afforded to whites.
3. Look up the Slavery Law of 1665 (which stayed
in effect until 1968)
and the Maryland Doctrine of Exclusion (1638): both laws
state that
blacks must be excluded from the benefits afforded whites and
that
blacks must remain noncompetitive with whites, except in
sports and
entertainment.
4. Two white men: Bill Gates and Larry Elision,
combined have more
wealth than the combined wealth of all 36 million
blacks in America.
Civil Rights did not change the economic landscape or the
balance of power
in America.
5. Asians received 80% of all government
minority set aside contracts.
Hello!!!!!!!
6. Blacks eat more fish than whites by a
four to one margin. For every
dollar whites spend on fish, blacks spend nine
dollars on fish. Fish
sold wholesale for will retail at $2.50 --$3.00.
Guess what business we
should be in as Blacks?
7. There are no black owned national cable or
major network television
stations. The black woman who owns our only black owned radio
stations,
plans to sell to white owners after hearing the deal
Bob Johnson
received for selling BET. (Cathy Hughes is from OMAHA, ya'll!)
8. There are no black owned companies on the Wall
Street Stock Exchange
where blacks own the majority or controlling interest of the stock.
9. 96% of all black inmates are men.
10. Over the next two years 440,000 black inmates will be
released from
prison. The State has no place to put them as they
reenter society.
Halfway house business!
11. In 1860, 98% of all Blacks in America worked
for White people.2001,
98% of all Blacks in America still work for white
people.
12. In 1860, blacks in America had a combined net
worth of half of one
percentage point. Guess what in 2001, after Civil
Rights, Jesse Jackson,
Oprah, Shaq, NAACP, and Urban League, our combined net worth
is half a
percentage point.
13. For every dollar earned by a Jewish person, that dollar
touches
12-18 Jewish hands before it leaves their community. For
every dollar
earned by a black person it leaves the community soon as he
or she earns
it.
14. Last week in Washington, DC black teenagers where
arrested and
booked for eating McDonalds on the metro subway. Cops cited
the recent
5-4 court decision as the permission to arrest lawbreakers
even for minor
offenses.
15. 67% of all hate crimes in America are against blacks. After we
get
through being pleased that we have carpet in our office, a
secretary, our
name on the door and make six figures, we do not own anything. What
will
happen if you miss six months of work without pay? All we have left
our
children is debt not an inheritance. You cannot pass
welfare or food
stamps onto our kids as a nest egg! We are not even in the
race. By the
way, the word "race" hit the English language in the
16th century when
Europeans held a contest to see who will win the race
to gather the most wealth through exploitation of
blacks.
You must read Powernomics by Claude
Anderson. This is our blueprint to
create wealth, not just have a job,
but be a business owner, so you can
hire people, be listed on the stock
exchange, develop businesses to meet
our needs.
African Spirituality
and its Influences on
Christianity
Howard University- Blackburn Center / Room 148
Tony Browder s book. Nile Valley Contributions to Civilization, is
about
correcting some of the misconceptions so the reader, in fact, can be
introduced to a Nile Valley civilization in order to understand its
role as
the parent of future civilizations.
These events are free and open to the public and are
sponsored by NCOBRA, UBIQUITY and IKG.
For information call 301-853-2465.
Click Here:
http://www.auser.org/tour.html"
African Centered Tour of Chocolate City
BOOKS by Anthony Browder3
1) From The Browder Files
2) Nile Valley Contributions To Civilization
3) Survival Strategies For African Americans
Washington, D.C. is significant because it was the first city, built
in
modern times, which was laid out on paper before construction began.
The
layout and design of the city was based on plans of city planning and
temple
orientation which were first developed in ancient Kemet (Egypt) andÂ
incorporated in the building of many cities in Europe. The founding
fathers
of the United States borrowed many aspects of Nile Valley symbolism
and
philosophy and incorporated them into the very fabric of the creation
of this
nation. Their intention was to recreate the spiritual essence of Egypt
in the
Americas. The African origins of architecture, symbolism and temple
orientation are discussed during the tour. Also established is the
African
origins of Masonry and the Masonic influence on the development of the
United
States and the District of Columbia.
The African Centered Tour of Washington, D.C. was designed by Tony
Browder in
1986, after his travel to Egypt and realization that many symbols of
ancient
Africa were perpetuated in Washington, D.C. architecture. His tour,
designed
in part to 'instill a sense of self-worth in black Americans about
their
heritage', underscores the architectural and symbolic relationships
between
the Nation's Capital and ancient Egypt.
WASHINGTON, D.C.
The sites visited include:
DISCOVER AMERICA'S BEST KEPT SECRETS IN AN AFRICAN CENTERED TOUR OF
WASHINGTON, D.C.
The sites visited include:
Meridian Hill Park
Scottish Rite Temple
The House of the Temple
Lafayette Park
The White House
The Lincoln Memorial
The Washington Monument
L'Enfant Plaza
The Library of Congress
The Capitol
This tour will reveal:
The Egyptian Origins of Architecture & Masonry
Sacred Architecture & Symbolism
The True Meaning of the Washington Monument
The Spiritual Significance of 16th Street
Masonic Influences on the Design of Washington, D.C.
A Symbolic Interpretation of Numbers
The Library of Congress & the African Origins of Mankind
Recommended Reading
RECOMMENDED READING. YOU CAME INTO THIS WORLD WITH ALL THAT YOU NEEDED
TO
KNOW IN ORDER TO FULFILL YOUR PURPOSE IN THIS LIFE BUT THE YEARS OF
BULL SHIT
HAVE TAKEN OVER YOUR MIND. THIS LIST WILL...
http://www.fearkiller.com/new_page_1.index.htm
THE BILLS OF RIGHTS
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.
No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.
The electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;--The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;--the person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President. The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.
The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several states, and without regard to any census or enumeration.
The Senate of the United States shall be composed of two Senators from each state, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislatures.
When vacancies happen in the representation of any state in the Senate, the executive authority of such state shall issue writs of election to fill such vacancies: Provided, that the legislature of any state may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.
This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of sex.
Congress shall have power to enforce this article by appropriate legislation.
A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a state, but in no event more than the least populous state; they shall be in addition to those appointed by the states, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a state; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment.
Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.
No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.
1788
THE FEDERALIST PAPERS
NO 1: Introduction
by Alexander Hamilton
-
AFTER an unequivocal experience of the inefficiency 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 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 pretence and
artifice, the stale bait for popularity at the expense of the public
good. It will be forgotten, on the one hand, that jealousy is the
usual concomitant of love, and that the noble enthusiasm of liberty is
apt to be infected with a spirit of narrow and illiberal distrust.
On the other hand, it will be equally forgotten that the vigor of
government is essential to the security of liberty; that, in the
contemplation of a sound and well-informed judgment, their interest
can never be separated; and that a dangerous ambition more often lurks
behind the specious mask of zeal for the rights of the people than
under the forbidding appearance of zeal for the firmness and
efficiency of the 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. *001 This
doctrine will, in all probability, be gradually propagated, till it
has votaries enough to countenance an open avowal of it. For nothing
can be more evident, to those who are able to take an enlarged view of
the subject, than the alternative of an adoption of the new
Constitution or a dismemberment of the Union. It will therefore be
of use to begin by examining the advantages of that Union, the certain
evils, and the probable dangers, to which every State will be
exposed from its dissolution. This shall accordingly constitute the
subject of my next address.
- PUBLIUS
NO 2: Concerning Dangers from Foreign Force and Influence
by John Jay
-
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, wide-spreading country was the portion of
our western sons of liberty. Providence has in a particular manner
blessed it with a variety of soils and productions, and watered it
with 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 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 well-balanced government for a free people. It
is not to be wondered at, that a government instituted in times so
inauspicious, should on experiment be found greatly deficient and
inadequate to the purpose it was intended to answer.
This intelligent people perceived and regretted these defects. Still
continuing no less attached to union than enamored of liberty, they
observed the danger which immediately threatened the former and more
remotely the latter; and being persuaded that ample security for
both could only be found in a national government more wisely
framed, they, as with one voice, convened the late convention at
Philadelphia, to take that important 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 team with pamphlets and
weekly papers against those very measures. Not only many of the
officers of government, who obeyed the dictates of personal
interest, but others, from a mistaken estimate of consequences, or the
undue influence of former attachments or whose ambition aimed at
objects which did not correspond with the public good, were
indefatigable in their efforts to persuade the people to reject the
advice of that patriotic Congress. Many, indeed, were deceived and
deluded, but the 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 of 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
NO 3: The Same Subject Continued
by John Jay
-
IT IS not a new observation that the people of any country (if, like
the Americans, intelligent and well-informed) seldom adopt and
steadily persevere for many years in an erroneous opinion respecting
their interests. That consideration naturally tends to create great
respect for the high opinion which the people of America have so
long and uniformly entertained of the importance of their continuing
firmly united under one federal government, vested with sufficient
powers for all general and national purposes.
The more attentively I consider and investigate the reasons which
appear to have given birth to this opinion, the more I become
convinced that they are cogent and conclusive.
Among the many objects to which a wise and free people find it
necessary to direct their attention, that of providing for their
safety seems to be the first. The safety of the people doubtless has
relation to a great variety of circumstances and considerations, and
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
violations of treaties or from direct violence. America has already
formed treaties with no less than six foreign nations, and all of
them, except Prussia, are maritime, and therefore able to annoy and
injure us. She has also extensive commerce with Portugal, Spain, and
Britain, and, with respect to the two latter, has, in addition, the
circumstance of neighborhood to attend to.
It is of high importance to the peace of America that she observe
the laws of nations towards all these powers, and to me it appears
evident that this will be more 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
NO 4: The Same Subject Continued
by John Jay
-
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 any thing by it; nay, absolute monarchs will often make war
when their nations are to get nothing by it, but for purposes and
objects merely personal, such as a thirst for military glory,
revenge for personal affronts, ambition, or private compacts to
aggrandize or support their particular families or partisans. These
and a variety of other motives, which affect only the mind of the
sovereign, often lead him to engage in wars not sanctified 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 then 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; not 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
defence, and necessarily depends on the government, the arms, and
the resources of the country.
As the safety of the whole is the interest of the whole, and
cannot be provided for without government, either one or more or many,
let us inquire whether one good government is not, relative to the
object in question, more competent then 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
defence 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 under
four independent governments, and it is easy to perceive how soon they
would each dwindle into comparative insignificance.
Apply these facts to our own case. Leave America divided into
thirteen or, if you please, into three or four independent
governments- what armies could they raise and pay- what fleets could
they ever hope to have? If one was attacked, would the others fly to
its succor, and spend their blood and money in its defence? Would
there be no danger of their being flattered into neutrality by its
specious promises, or seduced by a too great fondness for peace to
decline hazarding their tranquillity and present safety for the sake
of neighbors, of whom perhaps they have been jealous, and whose
importance they are content to see diminished. Although such conduct
would not be wise, it would, nevertheless, be natural. The history
of the states 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 towards 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
NO 5: The Same Subject Continued
by John Jay
-
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 subjects 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 defence
against foreign enemies.
When did the independent states, into which Britain and Spain were
formerly divided, combine in such alliance, or unite their forces
against a foreign enemy? The proposed confederacies will be distinct
nations. Each of them would have its commerce with foreigners to
regulate by distinct treaties; and as their productions and
commodities are different and proper for different markets, so would
those treaties be essentially different. Different commercial 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
NO 6: Concerning Dangers From War Between the States
by Alexander Hamilton
-
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 preeminence 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, *002 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, *003 another nation of Greece, or to avoid a prosecution
with which he was threatened as an accomplice in a supposed theft of
the statuary of Phidias, *004 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, *005 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, *006 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, *007 the petulance of
another, *008 and the cabals of a third, *009 had in the contemporary
policy, ferments, and pacifications, of a considerable part of Europe,
are to 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 interests, 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 any thing 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
well-regulated camp; and Rome was never sated of carnage and conquest.
Carthage, though a commercial republic, was the aggressor in the
very war that ended in her destruction. Hannibal had carried her
arms into the heart of Italy and to the gates of Rome, before
Scipio, in turn, gave him an overthrow in the territories of Carthage,
and made a conquest of the commonwealth.
Venice, in later times, figured more than once in wars of
ambition, till, becoming an object to the other Italian states, Pope
Julius II. found means to accomplish that formidable league, *010
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 the
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, *011
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
CONFEDERATIVE 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 neighbours." *012 This passage, at the same time,
points out the EVIL and suggests the REMEDY.
- PUBLIUS
NO 7: The Subject Continued and Particular Causes Enumerated
by Alexander Hamilton
-
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 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 land 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 cooperating
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 afterwards,
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 the proportion of the State in the total amount of the national
debt, would be strenuous for some equitable and effective provision.
The procrastinations of the former would excite the resentments of the
latter. The settlement of a rule would, in the meantime, be
postponed by real differences of opinion and affected delays. The
citizens of the States interested would clamor; foreign powers would
urge for the satisfaction of their just demands, and the peace of
the States would be hazarded to the double contingency of external
invasion and internal contention.
Suppose the difficulties of agreeing upon a rule 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 there 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 impera *013 must be the
motto of every nation that either hates or fears us. *014
- PUBLIUS
NO 8: The Effects of Internal War in Producing Standing Armies
and Other Institutions Unfriendly to Liberty
by Alexander Hamilton
-
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. *015 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 defence, by
disciplined troops, and by fortifications. They would, at the same
time, be necessitated to strengthen the executive arm of government,
in doing which their constitutions would acquire a progressive
direction towards monarchy. It is of the nature of war to increase the
executive at the expense of the legislative authority.
The expedients which have been mentioned would soon 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
preeminence. 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 no 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
defence, the people are in no danger of being broken to military
subordination. The laws are not accustomed to relaxations, in favor of
military exigencies; the civil state remains in full vigor, neither
corrupted, nor confounded with the principles or propensities of the
other state. The smallness of the army renders the natural strength of
the community an overmatch for it; and the citizens, not habituated to
look up to the military power for protection, or to submit to its
oppressions, neither love nor fear the soldiery; they view them with a
spirit of jealous acquiescence in a necessary evil, and stand ready to
resist a power which they suppose may be exerted to the prejudice of
their rights. The army under such circumstances may usefully aid the
magistrate to suppress a small faction, or an occasional mob, or
insurrection; but it will be unable to enforce 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 defence. The continual necessity for their
services enhances the importance of the soldier, and proportionably
degrades the condition of the citizen. The military state becomes
elevated above the civil. The inhabitants of territories, often the
theatre of war, are unavoidably subjected to 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. 'Tis possible, though not easy, that the people
of that island may be enslaved from other causes; but it cannot be
by the prowess of an army so inconsiderable as that which has been
usually kept up within the kingdom.
If we are wise enough to preserve the Union we may for ages enjoy an
advantage similar to that of an insulated situation. Europe is at a
great distance from us. Her colonies in our vicinity will be likely to
continue too much disproportioned in 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
NO 9: The Utility of the Union as a Safeguard
Against Domestic Faction and Insurrection
by Alexander Hamilton
-
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
contrasts to the furious storms that are to succeed. If now and then
intervals of felicity open to view, we behold them with a mixture of
regret, arising from the reflection that the pleasing scenes before us
are soon to be overwhelmed by the tempestuous waves of sedition and
party rage. If 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 it 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 subjects of politics. The
opponents of the plan proposed have, with great assiduity, cited and
circulated the observations of Montesquieu on the necessity of a
contracted territory for a republican government. But they seem not to
have been apprised of the sentiments of that great man expressed in
another part of his work, not 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 he) *016 "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
NO 10: The Same Subject Continued
by James Madison
-
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 the 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 minority of the whole, who are united and actuated by
some common impulse of passion, or of interest, adverse to the
rights of other citizens, or to the permanent and aggregate
interests of the community.
There are two methods of curing the mischiefs of faction: the one,
by removing its causes; the other, by controlling its effects.
There are again two methods of removing the causes of faction: the
one, by destroying the liberty which is essential to its existence;
the other, by giving to every citizen the same opinions, the same
passions, and the same interests.
It could never be more truly said than of the first remedy, that
it was worse than the disease. Liberty is to faction what air is to
fire, an aliment without which it instantly expires. But it could
not be less folly to abolish liberty, which is essential to
political life, because it nourishes faction, than it would be to wish
the 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 or 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 preeminence
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 cooperate 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 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
center in men who possess the most attractive merit and the most
diffusive and established characters.
It must be confessed that in this, as in most other cases, there
is a mean, on both sides of which inconveniences will be found to lie.
By enlarging too much the number of electors, you render the
representative too little acquainted with all their local
circumstances and lesser interests; as by reducing it too much, you
render him unduly attached to these, and too little fit to
comprehend and pursue great and national objects. The federal
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 to
schemes of injustice? It will not be denied that the representation of
the Union will be most likely to possess these requisite endowments.
Does it consist in the greater security afforded by a greater
variety of parties, against the event of any one party 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 country 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
NO 11: The Utility of the Union in Respect to Commerce and a Navy
by Alexander Hamilton
-
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 details, 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 it 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 prepossessions of a great
part of the nation in favor of the America trade, and with the
importunities of the West India islands, would produce a relaxation in
her present system, and would let us into the enjoyment of
privileges in the markets of those islands and elsewhere, from which
our trade would derive the most substantial benefits. Such a point
gained from the British government, and which could not be expected
without an equivalent in exemptions and immunities in our markets,
would be likely to have a correspondent effect on the conduct of other
nations, who would not be inclined to see themselves altogether
supplanted in our trade.
A further resource for influencing the conduct of European nations
towards 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 have 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 persecutors. That unequalled spirit of
enterprise, which signalizes the genius of the American merchants
and navigators, and which is in itself in 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 the 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 concentrated 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 fluctuations of
markets. Particular articles may be in great demand at certain
periods, and unsalable at others; but if there be a variety of
articles, it can scarcely happen that they should all be at one time
in the latter predicament, and on this account the operations of the
merchant would be less liable to any considerable obstruction or
stagnation. The speculative trader will at once perceive the force
of these observations, and will acknowledge that the aggregate balance
of the commerce of the United States would bid fair to be much more
favorable than that of the thirteen States without union or with
partial unions.
It may perhaps be replied to this, that whether the States are
united or disunited, there would still be an intimate intercourse
between them which would answer the same ends; but this intercourse
would be fettered, interrupted, and narrowed by a multiplicity of
causes, which in the course of these papers have been amply
detailed. A unity of commercial, as well as political, interests,
can only result from a unity of government.
There are other points of view in which this subject might be
placed, of a striking and animating kind. But they would lead us too
far into the regions of futurity, and would involve topics not
proper for a newspaper discussion. I shall briefly observe, that our
situation invites and our interests prompt us to aim at an ascendant
in the system of America 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. *017 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 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
NO 12: The Utility of the Union in Respect to Revenue
by Alexander Hamilton
-
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 multiplying 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 imperceptible agency of taxes on consumption. If these
remarks have any foundation, that state of things which will best
enable us to improve and extend so valuable a resource must be best
adapted to our political welfare. And it cannot admit of a serious
doubt, that this state of things, must rest on the basis of a
general Union. As far as this would be conducive to the interests of
commerce, so far it must tend to the extension of the revenue to be
drawn from that source. As far as it would contribute to rendering
regulations for the collection of the duties more simple and
efficacious, so far it must serve to answer the purposes of making the
same rate of duties more productive, and of putting it into the
power of the government to increase the rate without prejudice to
trade.
The relative situation of these States; the number of rivers with
which they are intersected, and of bays that wash their shores; the
facility for 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 unload 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 cooperation 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 percent. In France they are estimated to
be about fifteen percent., and in Britain they exceed this
proportion. *018 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
articlewould 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
it 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
NO 13: The Same Subject Continued with a View to Economy
by Alexander Hamilton
-
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 towards three confederacies- one
consisting of the four Northern, another of the four Middle, and a
third of the five Southern States. There is little probability that
there would be a greater number. According to this distribution,
each confederacy would comprise an extent of territory larger than
that of the 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, form 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 our of the necessities of revenue; and if we also take
into view the military establishments which it has been shown would
unavoidably result from the jealousies and conflicts of the several
nations into which the States would be divided, we shall clearly
discover that a separation would be not less injurious to the economy,
than to the tranquillity, commerce, revenue, and liberty of every
part.
- PUBLIUS
NO 14: An Objection Drawn from the Extent of Country Answered
by James Madison
-
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
concentrated, 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 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 center which will barely
allow the representatives to meet as often as may be necessary for the
administration of public affairs. Can it be said that the limits of
the United States exceed this distance? It will not be said by those
who recollect that the Atlantic coast is the longest side of the
Union, that during the term of thirteen years, the representatives
of 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 the 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 objects which can be separately provided for, will retain
their due authority and activity. Were it proposed by the plan of
the convention to abolish the governments of the particular States,
its adversaries would have some ground for their objection; though
it would not be difficult to show that if they were abolished the
general government would be compelled, by the 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 travellers will be multiplied and meliorated; an interior
navigation on our eastern side will be opened throughout, or nearly
throughout, the whole extent of the thirteen States. The communication
between the Western and Atlantic districts, and between different
parts of each, will be rendered more and more easy by those numerous
canals with which the beneficence of nature has intersected our
country, and which art finds it so little difficult to connect and
complete.
A fourth and still more important consideration is, that as almost
every State will, on one side or other, be a frontier, and will thus
find, in a regard to its safety, an inducement to make some sacrifices
for the sake of the general protection; so the States which lie at the
greatest distance from the heart of the Union, and which, of course,
may partake least of the ordinary circulation of its benefits, will be
at the same time immediately 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 fellow-citizens of one great,
respectable, and flourishing empire. Hearken not to the voice which
petulantly tells you that the form of government recommended for
your adoption is a novelty in the political world; that it has never
yet had a place in the theories of the wildest projectors; that it
rashly attempts what it is impossible to accomplish. No, my
countrymen, shut your ears against this unhallowed language. Shut your
hearts against the poison which it conveys; the kindred blood which
flows in the veins of American citizens, the mingled blood which
they have shed in defence of their sacred rights, consecrate their
Union, and excite horror at the idea of their becoming aliens, rivals,
enemies. And if novelties are to be shunned, believe me, the most
alarming of all novelties, the most wild of all projects, the most
rash of all attempts, is that of rending us in pieces, in order to
preserve our liberties and promote our happiness. But why is the
experiment of an extended republic to be rejected, merely because it
may comprise what is new? Is it not the glory of the people of
America, that, whilst they have paid a decent regard to the opinions
of former times and other nations, they have not suffered a blind
veneration for antiquity, for custom, or for names, to overrule the
suggestions of their own good sense, the knowledge of their own
situation, and the lessons of their own experience? To this manly
spirit, posterity will be indebted for the possession, 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
NO 15: Concerning the Defects of the Present Confederation
in Relation to the Principle of Legislation
for the States in Their Collective Capacities
by Alexander Hamilton
-
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 to be severed or dissolved by ambition or by
avarice, by jealousy or by misrepresentation. In the sequel of the
inquiry through which I propose to accompany you, the truths
intended to be inculcated will receive further 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 lengthy 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 any thing that can
wound the pride or degrade the character of an independent nation
which we do not experience. Are there engagements to the performance
of which we are held by every tie respectable among men? These are the
subjects of constant and unblushing violation. Do we owe debts to
foreigners and to our own citizens contracted in a time of imminent
peril for the 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. *019 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 apportionment, the United
States has an indefinite discretion to make requisitions for men and
money; but they have no authority to raise either, by regulations
extending to the individual citizens of America. The consequence of
this is, that though in theory their resolutions concerning those
objects are laws, constitutionally binding on the members of the
Union, yet in practice they are mere recommendations which the
States observe or disregard at their option.
It is a singular instance of the capriciousness of the human mind,
that after all the admonitions we have had from experience on this
head, there should still be found men who object to the new
Constitution, for deviating from a principle which has been found
the bane of the old, and which is in itself evidently incompatible
with the idea of GOVERNMENT; a principle, in short, which, if it is to
be executed at all, must substitute the violent and sanguinary
agency of the sword 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
negotiations 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 it 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 center.
This tendency is not difficult to be accounted for. It has its
origin in the love of power. Power controlled or abridged is almost
always the rival and enemy of that power by which it is controlled
or abridged. This simple proposition will teach us, how little
reason there is to expect, that the persons intrusted with the
administration of the affairs of the particular members of a
confederacy will at all times be ready, with perfect good-humor, and
an unbiased regard to the public weal, to execute the resolutions or
decrees of the general authority. The reverse of this results from the
constitution of human nature.
If, therefore, the measures of the Confederacy cannot be executed
without the intervention of the particular administrations, there will
be little prospect of their being executed at all. The rulers of the
respective members, whether they have a constitutional right to do
it or not, will undertake to judge of the propriety of the measures
themselves. They will consider the conformity 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 cooperate in the same views and
pursuits.
In our case, the concurrence of thirteen distinct sovereign wills is
requisite, under the Confederation, to the complete execution of every
important measure that proceeds from the Union. It has happened as was
to have been foreseen. The measures of the Union have not been
executed; the 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
NO 16: The Same Subject Continued in Relation to the Same Principle
by Alexander Hamilton
-
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 exceptional 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
parents 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 defence. 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 pretence 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; not 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 demigods 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 legislation; but must itself be empowered to employ
the arm of the ordinary magistrate to execute its own resolutions. The
majesty of the national authority must be manifested through the
medium of the courts of justice. The government of the Union, like
that of each State, must be able to address itself immediately to
the hopes and fears of individuals; and to attract to its support
those passions which have the strongest influence upon the human
heart. It must, in short, possess all the means, and have a right to
resort to all the methods, of executing the powers with which it is
intrusted, that are possessed and exercised by the governments of
the particular States.
To this reasoning it may perhaps be objected, that if any State
should be disaffected to the authority of the Union, it could at any
time obstruct the execution of its laws, and bring the matter to the
same issue of force, with the necessity of which the opposite scheme
is reproached.
The plausibility of this objection will vanish the moment we
advert to the essential difference between a mere NON-COMPLIANCE and a
DIRECT and ACTIVE RESISTANCE. If the interposition of the State
legislatures be necessary to give effect to a measure of the Union,
they have only NOT TO ACT, or to ACT EVASIVELY, and the measure is
defeated. This neglect of duty may be disguised under affected but
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 defence, 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 ill-humors 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
NO 17: The Subject Continued and Illustrated by Examples
to Show the Tendency of Federal Governments Rather to Anarchy
Among the Members Than Tyranny in the Head
by Alexander Hamilton
-
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 appear 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 lusts 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 pain 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 transcendent advantage belonging to the province of the
State governments, which alone suffices to place the matter in a clear
and satisfactory light,- I mean the ordinary administration of
criminal and civil justice. This, of all others, is the most powerful,
most universal, and most attractive source of popular obedience and
attachment. It is that which, being the immediate and visible guardian
of life and property, having its benefits and its terrors in
constant activity before the public eye, regulating all those personal
interests and familiar concerns to which the sensibility of
individuals is more immediately awake, 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 infrequently, 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 purposes of a more
regular authority. But in general, the power of the barons triumphed
over that of the prince; and in many instances his dominion was
entirely thrown off, and the great fiefs were erected into independent
principalities or States. In those instances in which the monarch
finally prevailed over his vassals, his success was chiefly owing to
the tyranny of those vassals over their dependents. The barons, or
nobles, equally the enemies of the sovereign and the oppressors of the
common people, were dreaded and detested by both; till mutual danger
and mutual interest effected a union between them fatal to the power
of the aristocracy. Had the nobles, by a conduct of clemency and
justice, preserved the fidelity and devotion of their retainers and
followers, the contests between them and the prince must almost always
have ended in their favor, and in the abridgement 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 dependents by ties equivalent to those of
kindred, rendered the aristocracy a constant overmatch for the power
of the monarch, till the incorporation with England 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
NO 18: The Subject Continued with Farther Examples
by Alexander Hamilton & James Madison
-
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 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 dissensions, so these never fail to bring on fresh calamities
from abroad. The Phocians having ploughed up some consecrated ground
belonging to the temple of Apollo, the Amphictyonic council, according
to the superstition of the age, imposed a fine on the sacrilegious
offenders. The Phocians, being abetted by Athens and 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 awakened their love of
liberty. A few cities reunited. Their example was followed by
others, as opportunities were found of cutting off their tyrants.
The league soon embraced 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 weakened 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 its members. These
the Romans fostered. Callicrates and other popular leaders became
mercenary instruments for inveigling their countrymen. The more
effectually to nourish discord and disorder the Romans had, to the
astonishment of those who confided in their sincerity, already
proclaimed universal liberty *020 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
NO 19: The Subject Continued with Farther Examples
by Alexander Hamilton & James Madison
-
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, have 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 dependents;
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 imbecility, confusion, and misery.
In the sixteenth century, the emperor, with one part of the empire
on his side, was seen engaged against the other princes and states. In
one of the conflicts, the emperor himself was put to flight, and
very near being made prisoner by the elector of Saxony. The late
king of Prussia was more than once pitted against his imperial
sovereign; and commonly proved an overmatch for him. Controversies and
wars among the members themselves have been so common, that the German
annals are crowded with the bloody pages which describe them. Previous
to the peace of Westphalia, Germany was desolated by a war of thirty
years, in which the emperor, with one half of the empire, was on one
side, and Sweden, with the other half, on the opposite side. Peace was
at length negotiated, and dictated by foreign powers; and the articles
of it, to which foreign powers are parties, made a fundamental part of
the Germanic constitution.
If the nation happens, on any emergency, to be more united by the
necessity of self-defence, its situation is still deplorable. Military
preparations must be preceded by so many tedious discussions,
arising from the jealousies, pride, 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 Abbe 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, *021 he took possession of
it in his own name, disarmed, and punished the inhabitants, and
reannexed the city to his domains.
It may be asked, perhaps, what has so long kept this disjointed
machine from falling entirely to pieces? The answer is obvious: The
weakness of most of the members, who are unwilling to expose
themselves to the mercy of foreign powers; the weakness of most of the
principal members, compared with the formidable powers all around
them; the vast weight and influence which the emperor derives from his
separate and hereditary dominions; and the interest he feels in
preserving a system with which his family pride is connected, and
which constitutes him the first prince in Europe;- these causes
support a feeble and precarious Union; whilst the repellent quality
incident to the nature of sovereignty, and which time continually
strengthens, prevents any reform whatever, founded on a proper
consolidation. Nor is it to be imagined, if this obstacle could be
surmounted, that the 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-defence, it
has long been at the mercy of its powerful neighbors; who have
lately had the mercy to disburden it of one third of its people and
territories.
The connection among the Swiss cantons scarcely amounts to a
confederacy; thought 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 accommodating disputes among the
cantons. The provision is, that the parties at variance shall each
choose four judges out of the neutral cantons, who, in case of
disagreement, choose an umpire. This tribunal, under an oath of
impartiality, 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 and 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
NO 20: The Subject Continued with Farther Examples
by Alexander Hamilton & James Madison
-
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
year; 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 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 confederacy where one of the members exceeds
in force all the rest, and where several of them are too small to
meditate resistance; but utterly impracticable in one composed of
members, several of which are equal to each other in strength and
resources, and equal singly to a vigorous and persevering defence.
Foreign ministers, says Sir William Temple, who was himself a
foreign minister, elude matters taken ad referendum, by tampering with
the provinces and cities. In 1726, the treaty of Hanover was delayed
by these means a whole year. Instances of a like nature are numerous
and notorious.
In critical emergencies, the States-General are often compelled to
overleap their constitutional bounds. In 1688, they concluded a treaty
of themselves at the risk of their heads. The treaty of Westphalia, in
1648, by which their independence was formally and finally recognized,
was 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 destiny. All nations
have their eyes fixed on the awful spectacle. The first wish
prompted by humanity is, that this severe trial may issue in such a
revolution of their government as will establish their union, and
render it the parent of tranquillity, freedom, and happiness: The
next, that the asylum under which, we trust, the enjoyment of these
blessings will speedily be secured in this country, may receive and
console them for the catastrophe of their own.
I make no apology for having dwelt so long on the 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
NO 21: Further Defects of the Present Constitution
by Alexander Hamilton
-
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 the 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
the resolutions, either by pecuniary mulcts, by a suspension of
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 of 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 constitutions by a majority of
the people in a legal and peaceable mode. This right would remain
undiminished. The guaranty could only operate against changes to be
effected by violence. 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 pretence
for the use of violent remedies in partial or occasional distempers of
the State. The natural cure for an ill-administration, in a popular or
representative constitution, is a change of men. A guaranty by the
national authority would be as much levelled against the usurpations
of rulers as against the ferments and 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 by 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
NO 22: The Same Subject Continued and Concluded
by Alexander Hamilton
-
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 interest 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. *022
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 intercourse between the different parts of the
Confederacy. "The commerce of the German empire *023 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 defence. It gave birth to a
competition between the States which created a kind of auction for
men. In order to furnish the quotas required of them, they outbid each
other till bounties grew to an enormous and 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 from them 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
regret the want of this hope, when we consider how little prospect
there is that the most delinquent States will ever be able to make
compensation for their pecuniary failures. The system of quotas and
requisitions, whether it be applied to men or money, is, in every
view, a system of imbecility in the Union, and of inequality and
injustice among the members.
The right of equal suffrage among the States is another
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 Delaware 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; *024 and two thirds of the people of America could
not long be persuaded, upon the credit of artificial distinction 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; *025 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 non-attendance of a
few States, have been frequently in the situation of a Polish diet,
where a single VOTE has been sufficient to put a stop to all their
movements. A sixtieth part of the Union, which is about the proportion
of Delaware and Rhode Island, has several times been able to oppose an
entire bar to its operations. This is one of those refinements
which, in practice, has an effect the reverse of what is expected from
it in theory. The necessity of unanimity in public bodies, or of
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, was 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 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 the 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
preeminence 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 same court
differing from each other. To avoid the confusion which would
unavoidably result from the contradictory decisions of a number of
independent judicatories, all nations have found it necessary to
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
differences 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 and energy, as necessity might prompt, we shall finally
accumulate, in a single body, all the most important prerogatives of
sovereignty, and thus entail upon our posterity one of the most
execrable forms of government that human infatuation ever contrived.
Thus we should create in reality that very tyranny which the
adversaries of the new Constitution either are, or affect to be,
solicitous to avert.
It has not a little contributed to the infirmities of the existing
federal system, that it never had a ratification by the PEOPLE.
Resting on no better foundation than the consent of the several
legislatures, it has been exposed to frequent and intricate
questions concerning the validity of its powers, and has, in some
instances, given birth to the enormous doctrine of a right of
legislative repeal. Owing its 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
NO 23: The Necessity of a Government at Least
Equally Energetic with the One Proposed
by Alexander Hamilton
-
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
defence of the members; the preservation of the public peace, as
well against internal convulsions as external attacks; the
regulation of commerce with other nations and between the States;
the superintendence of our intercourse, political and commercial, with
foreign countries.
The authorities essential to the common defence are these: to
raise armies; to build and equip fleets; to prescribe rules for the
government of both; to direct their 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 extend 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 co-extensive
with all the possible combinations of such circumstances; and ought to
be under the direction of the same councils which are appointed to
preside over the common defence.
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 defence is a question in the first instance, open
for discussion; but the moment it is decided in the affirmative, it
will follow that that 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 defence and
protection of the community, in any matter essential to its
efficacy- that is, in any matter essential to the formation,
direction, or support of the 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 where
by them judged requisite to the "common defence and general
welfare." It was presumed that a sense of their true interests, and
a regard to the 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 so likely to make suitable provisions for the public defence
as that body to which the guardianship of the public safety is
confided; which, as the center 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 defence, and leaving in
the State governments the effective powers by which it is to be
provided for? Is not a want of co-operation the infallible consequence
of such a system? And will not weakness, disorder, and 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 and unconfined authority, as to all
those objects which are intrusted to its management. It will indeed
deserve the most vigilant and careful attention of the people to see
that it be modelled in such a manner as to admit of its being safely
vested with the requisite powers. If any plan which has been, or may
be, offered to our consideration, should not, upon a 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; not 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 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 indispensable
to their proper and efficient management. Let us not attempt to
reconcile contradictions, but firmly embrace a rational alternative.
I trust, however, that the impracticability of one general system
cannot be shown. I am greatly mistaken, if 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
NO 24: The Subject Continued with an Answer
to an Objection Concerning Standing Armies
by Alexander Hamilton
-
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 propriety 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
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 *026 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 defenceless 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 defence 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
NO 25: The Subject Continued with the Same View
by Alexander Hamilton
-
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 defence from the federal head
to the individual members: a project oppressive to some States,
dangerous to all, and baneful to the Confederacy.
The territories of Britain, Spain, and of the Indian nations in
our neighborhood do not border on particular States, but encircle
the Union from Maine to Georgia. The danger, though in different
degrees, is therefore common. And the means of guarding against it
ought, in like manner, to be the objects of common councils and of a
common treasury. It happens that some States, from local situation,
are more directly exposed. New York is of this class. Upon the plan of
separation provisions, New York would have to sustain the whole weight
of the establishments requisite to her immediate safety, and to
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 counter-poise, and pretences could
easily be contrived. In this situation, military establishments,
nourished by mutual jealousy, would be apt to swell beyond their
natural or proper size; and being at the separate disposal of the
members, they would be engines for the abridgement or demolition of
the national authority.
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 pretences 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 defence, 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 defenceless 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
defence. 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 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 perseverance, 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 normal title of
vice-admiral. The 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 governments 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
NO 26: The Subject Continued with the Same View
by Alexander Hamilton
-
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 defence, 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 this 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
acknowledge 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
well-informed, to think of any restraint on the legislative
discretion. They were aware that a certain number of troops for guards
and garrisons were indispensable; that no precise bounds could be
set to the national exigencies; that a power equal to every possible
contingency must exist somewhere in the 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 raised the warmth of our zeal
beyond the degree which consisted with the due temperature of the body
politic. The attempts of two of the States to restrict the authority
of the legislature in the article of military establishments are of
the number of the 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 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 those 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 form 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 provisions 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 preserved 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 or 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 any 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 pretence 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 defence of the community under such circumstances
should make it necessary to have an army so numerous as to hazard
its liberty, this is one of those calamities for which there is
neither preventative nor cure. It cannot be provided against by any
possible form of government; it might even result from a simple league
offensive and defensive, if it should ever be necessary for the
confederates or allies to form an army for common defence.
But 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
NO 27: The Subject Continued with the Same View
by Alexander Hamilton
-
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 have been alleged on that side, rests on mere general
assertion, unsupported by an 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 channels 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 the species of league contended for by most of its
opponents, the authority of which should only operate upon the
States in their political or collective capacities. It has been
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. *027
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
NO 28: The Same Subject Concluded
by Alexander Hamilton
-
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
others 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 natural
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 presume 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 they 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 powers
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. *028
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-defence 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 defence. 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 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
pretences 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 the 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
defence, 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
NO 29: Concerning the Militia
by Alexander Hamilton
-
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 defence, 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 defence. 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 the 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 defence 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 favorable opinion of
the sincerity of 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 jealously,
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 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 if 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 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
defence of the State shall require it. This will not only lessen the
call of 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
every thing 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 debt 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 be 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 design.
In times of insurrection, or invasion, it would be natural and
proper that the militia of a neighboring State should be marched
into another, to resist a common enemy, or to guard the republic
against the violence of faction or sedition. This was frequently the
case, in respect to the first object, in the course of the late war;
and this mutual succor is, indeed, a principal end of our political
association. If the power of affording it be placed under the
direction of the Union, there will be no danger of a supine and
listless inattention to the dangers of a neighbor, till its near
approach had superadded the incitements of self-preservation to the
too feeble impulses of duty and sympathy.
- PUBLIUS
NO 30: Concerning Taxation
by Alexander Hamilton
-
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 produce 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 as 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 composed 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 to 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 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 to
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 proportionally 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 fulfil 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 defence 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 deficiencies 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
NO 31: The Same Subject Continued
by Alexander Hamilton
-
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 its parts; 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 nature 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 levelled.
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 defence 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 an 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 pretence 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 skepticism and irresolution. I repeat
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 towards 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: 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
NO 32: The Same Subject Continued
by Alexander Hamilton
-
ALTHOUGH I am of opinion that there would be no real danger of
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
partial union or consolation, 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 the 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 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 the 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 in expediency 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 preexisting 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
NO 33: The Same Subject Continued
by Alexander Hamilton
-
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 proper means of executing such a power, but
necessary and proper laws?
This simple train of inquiry furnishes us at once with a test by
which to judge of the true nature of the clause complained of. It
conducts us to this palpable truth, that a power to lay and collect
taxes must be a power to pass all laws necessary and proper for the
execution of that power; and what does the unfortunate and calumniated
provision in question do more than declare the same truth, to wit,
that the national legislature, to whom the power of laying and
collecting taxes had been previously given, might, in the execution of
that power, pass all laws necessary and proper to carry it into
effect? I have applied these 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 legitimate 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 pretence of an
interference with its revenues, it should undertake to abrogate a
land-tax imposed by the authority of a State; would it not be
equally evident that this was an invasion of that concurrent
jurisdiction in respect to this species of tax, which its Constitution
plainly supposes to exist in the State governments? If there ever
should be a doubt on this head, the credit of it will be entirely
due to those reasoners who, in the 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 form 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 government, which is only another word for
POLITICAL POWER AND SUPREMACY. But it will not follow from this
doctrine that acts of the larger society which are not pursuant to its
constitutional powers, but which are invasions of the residuary
authorities of the smaller societies, will become the supreme law of
the land. These will be merely acts of usurpation, and will deserve to
be treated as such. Hence we perceive that the clause which declares
the supremacy of the laws of the Union, like the one we have just
before considered, only declares a truth, which flows immediately
and necessarily from the 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
NO 34: The Same Subject Continued
by Alexander Hamilton
-
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 coordinate authority
cannot exist, is to set up supposition and theory against fact and
reality. However proper such reasonings might be to show that a
thing 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
plebeian. Many arguments might have been adduced to prove the
unfitness of two such seemingly contradictory authorities, each having
power to annul or repeal the acts of the other. But a man would have
been regarded as frantic who should have attempted at Rome to disprove
their existence. It will be readily understood that I allude to the
COMITIA CENTURIATA and the COMITIA TRIBUTA. The former in which the
people voted by centuries, was so arranged as to give a superiority to
the patrician interest; in the latter, in which numbers prevailed, the
plebeian interest had an entire predominancy. And yet these two
legislatures coexisted for ages, and the Roman republic attained to
the utmost height of human greatness.
In the case particularly under consideration, there is no such
contradiction as appears in the example cited; there is no power on
either side to annul the acts of the other. And in practice there is
little reason to apprehend any 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 defence 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 course 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 answer 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 defence.
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 lists, to which, if we add all
contingencies, the total amount in every State ought to fall
considerably short of two hundred thousand pounds.
In framing a government for posterity as well as 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 littletoo
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
NO 35: The Same Subject Continued
by Alexander Hamilton
-
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 form 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 make 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 reasoning, 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 its, 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 of 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 to sacrifice any particular class of
citizens to the procurement of revenue. It might be demonstrated
that the most productive system of finance will always be the least
burdensome. There can be no doubt that in order to a judicious
exercise of the power of taxation, it is necessary that the person
in whose hands it is should be acquainted with the general genius,
habits, and modes of thinking of the people at large, and with the
resources of the country. And this is all that can be reasonably meant
by a knowledge of the interests and feelings of the people. In any
other sense the proposition has either no meaning, or an absurd one.
And in that sense let every considerate citizen judge for himself
where the requisite qualification is most likely to be found.
- PUBLIUS
NO 36: The Same Subject Continued
by Alexander Hamilton
-
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
advantages, as well form 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 by-paths in each
State; or is it a general acquaintance with its situation and
resources, with the state of its agriculture, commerce,
manufactures, with the nature of its products and consumptions, with
the different degrees and kinds of its wealth, property, and industry?
Nations in general, even under governments of the more popular kind,
usually commit the administration of their finances to single men or
to boards composed of a few 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 commonly
laid in one of two modes, either by actual valuations, permanent or
periodical, or by occasional assessments, at the discretion, or
according to the best judgment, of certain officers whose duty it is
to make them. In either case, the 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 source?
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 do no
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 or 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 *029 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 defence and
security. I have now gone through the examination of such of the
powers proposed to be vested in the United States, which may be
considered as having an immediate relation to the energy of the
government; and have endeavored to answer the principal objections
which have been made to them. I have passed over in silence those
minor authorities, which are either too inconsiderable to have been
thought worthy of the hostilities of the opponents of the
Constitution, or of too manifest propriety to admit of controversy.
The mass of judiciary power, however, might have claimed an
investigation under this head, had it not been for the consideration
that its organization and its extent may be more advantageously
considered in connection. This has determined me to refer it to the
branch of our inquiries upon which we shall next enter.
- PUBLIUS
NO 37: Concerning the Difficulties Which the Convention
Must Have Experienced in the Formation of a Proper Plan
by James Madison
-
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 descriptions, 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 experience 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 characterise State administrations. On
comparing, however, these valuable ingredients with the vital
principles of liberty, we must perceive at once the difficulty of
mingling them together in their due proportions. The genius of
republican liberty seems to demand on one side, not only that all
power should be derived from the people, but that those intrusted with
it should be kept in dependence on the people, by a short duration
of their appointments; and that even during this short period the
trust should be placed not in a few, but a number of hands. Stability,
on the contrary, requires that the hands in which power is lodged
should continue for a length of time the same. 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
termination of the former and the commencement of the animal empire. A
still greater obscurity lies in the distinctive characters by which
the objects in each of these great departments of nature have been
arranged and assorted.
When we pass from the works of nature, in which all the delineations
are perfectly accurate, and appear to be otherwise only from the
imperfection of the eye which surveys them, to the institutions of
man, in which the 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
form the efforts of human sagacity. Experience has instructed us
that no skill in the science of government has yet been able to
discriminate and define, with sufficient certainty, its three great
provinces- the legislative, executive, and judiciary; or even the
privileges and powers of the different legislative branches. Questions
daily occur in the course of practice, which prove the obscurity which
reigns in these subjects, and which puzzle the greatest adepts in
political science.
The experience of ages, with the continued and combined labors of
the most enlightened legislators and jurists, has been equally
unsuccessful in delineating the several objects and limits of
different codes of laws and different tribunals of justice. The
precise extent of the common law, and the statute law, the maritime
law, the ecclesiastical law, the law of corporations, and other
local laws and customs, remains still to be clearly and finally
established in Great Britain, where accuracy in such subjects has been
more industriously pursued than in any other part of the world. The
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
quality 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.
- PUBLIUS
NO 38: The Subject Continued and the Incoherence
of the Objections to the Plan Exposed
by James Madison
-
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-modelling the constition. 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 exceed 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 at 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
self-preservation. One State, we may remember, persisted for several
years in refusing her concurrence, although the enemy remained the
whole period at our gates, or rather in the very bowels of our
country. Nor was her pliancy in the end effected by a less motive,
than the fear of being chargeable with protracting the public
calamities, and endangering the event of the contest. Every candid
reader will make the proper reflections on these important facts.
A patient who finds his disorder daily growing worse, and that an
efficacious remedy can no longer be delayed without extreme danger,
after coolly revolving his situation, and the 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, 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 see 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 must ever be a dangerous engine in the hands of the executive
magistrate, is an unpardonable violation of the maxims of republican
jealousy. No part of the arrangement, according to some, is more
inadmissible than the trial of impeachments by the Senate, which is
alternately a member both of the legislative and executive
departments, when this power so evidently belonged to the judiciary
department. "We concur fully," reply others, "in the objection to this
part of the plan, but we can never agree that a reference of
impeachments to the judiciary authority would be an amendment of the
error. Our principal dislike to the organization arises from the
extensive powers already lodged in that department." Even among the
zealous patrons of a council of state the most irreconcilable variance
is discovered concerning the mode in which it ought to be constituted.
The demand of one gentleman is, that the council should consist of a
small number to be appointed by the most numerous branch of the
legislature. Another would prefer a larger number, and considers it as
a fundamental condition that the 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 ceiling a little higher or lower than his fancy would have planned
them. But waiving illustrations of this sort, is it not manifest
that most of the capital objections urged against the new system lie
with tenfold weight against the 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 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 States for the means of carrying them into practice; that
however large the mass of powers may be, it is in fact a lifeless
mass. Then, say I, in the first place, that the Confederation is
chargeable with the still greater folly of declaring certain powers in
the federal government to be absolutely necessary, and at the same
time rendering them absolutely nugatory; and, in the next place,
that if the Union is to continue, and no better government be
substituted, effective powers must either be granted to, or assumed
by, the existing Congress; in either of which events, the 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
NO 39: The Conformity of the Plan to Republican Principles:
An Objection in Respect to the Powers of the Convention Examined
by James Madison
-
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 constitutions 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 coordinate 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 has been adopted. Each State, in ratifying
the Constitution, is considered as a sovereign body, independent of
all others, and only to be bound by its own voluntary act. In this
relation, then, the new Constitution will, if established, be a
federal, and not a national constitution.
The next relation is, to the sources from which the 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 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
NO 40: The Same Objection Further Examined
by James Madison
-
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; 2nd, that this government was to be such as would be
adequate to the exigencies of government and the preservation of the
Union; 3rd, 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 effected by alterations and provisions in the
articles of Confederation; which part of the definition ought to
have been embraced, and which rejected? Which was the more
important, which was 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 absolute
irreconcilable to each other; that no alterations or provisions in the
articles of the Confederation could possibly mound them into a
national and adequate government; into such a government as had 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 the authorized
and usurped innovations; between the 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 it 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 States *030 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-martial in the army and navy, by which death may be inflicted
without the intervention of a jury, or even of a civil
magistrate;-in all these cases the powers of the Confederation operate
immediately on the persons and interests of individual citizens. Do
these fundamental principles require, particularly, that no tax should
be levied without the intermediate agency of the States? The
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 admired 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
has 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," *031 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 his
assembly? Or if there be a man who 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 assumed; and that finally, if they had violated
both their powers and their obligations, in proposing a
Constitution, this ought nevertheless to be embraced, if it be
calculated to accomplish the views and happiness of the people of
America. How far this character is due to the Constitution, is the
subject under investigation.
- PUBLIUS
NO 41: General View of the Powers Proposed to Be Vested in the Union
by James Madison
-
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-defence.
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 defence be limited by those
who cannot limit the force of offence? If a federal Constitution could
chain the ambition or set bounds to the exertions of all other
nations, then indeed might it prudently chain the 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 of 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 necessary 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 every 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 precautions. 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 American
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 defence 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 sea-coast is
extensive. A very important district of the State is an island. The
State itself is penetrated by a large navigable river for more than
fifty leagues. The great emporium of its commerce, the great reservoir
of its wealth, lies every moment at the mercy of events, and may
almost be regarded as a hostage for ignominious compliances with the
dictates of a foreign enemy, or even with the rapacious demands of
pirates and 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 defence, is properly thrown
into the same class with it. This power, also, has been examined
already with much attention, and has, I trust, has 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 defence and general
welfare of the United States," amounts to an unlimited commission to
exercise every power which may be alleged to be necessary for the
common defence or general welfare. No stronger proof could be given of
the distress under which these writers labor for objections, than
their stooping to such a misconstruction.
Had no other enumeration or definition of the powers of the Congress
been found in the Constitution, than the general expressions just
cited, the authors of the objection might have had some color for
it; though it would have been difficult to find a reason for so
awkward a form of 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
by 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 defence, security of their
liberties, and mutual and general welfare." The terms of article
eighth are still more identical: "All charges of war and all other
expenses that shall be incurred for the common defence or general
welfare, and allowed by the United States in Congress, shall be
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 defence 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
NO 42: The Same View Continued
by James Madison
-
THE second class of powers, lodged in the general government,
consist 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 offences 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 offences 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 offences against the law of nations;
and consequently leave it in the power of any indiscreet member to
embroil the Confederacy with foreign nations. The provision of the
federal articles on the subject of piracies and felonies extends no
further than to the establishment of courts for the trial of these
offences. The definition of piracies might, perhaps, without
inconveniency, be left to the law of nations; though a legislative
definition of them is found in most municipal codes. A definition of
felonies on the high seas is evidently requisite. Felony is a term
of 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 has 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 to 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 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 securities of the United States;
to fix the standard of weights and measures; to establish a uniform
rule of naturalization, and uniform laws of bankruptcy; to 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 confederate 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 organization 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
then 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 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 its seems not
likely to be drawn into question.
The power of prescribing the 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
NO 43: The Same View Continued
by James Madison
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THE fourth class comprises the following miscellaneous powers:
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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 provision for either of the cases, and
most of them have anticipated the decision of this point, by laws
passed at the instance of Congress.
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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, dock-yards, and other needful buildings."
The indispensable necessity of complete authority at the seat of
government, carries its own evidence with it. It is a power
exercised by every legislature of the Union, I might say of the world,
by virtue of its general supremacy. 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 hand 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 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, require that they should be exempt from the authority of the
particular State. Nor would it be proper for the places on which the
security of the entire Union may depend, to be in any degree 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.
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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 attainted."
As treason may be committed against the United States, the authority
of the United States ought to be enabled to punish it. But as
new-fangled and artificial treasons have been the great engines by
which violent factions, the natural offspring of free government, have
usually wreaked their alternate malignity on each other, the
convention have, with great judgment, opposed a barrier to this
peculiar danger, by inserting a constitutional definition of the
crime, fixing the proof necessary for conviction of it, and
restraining the Congress, even in punishing it, from extending the
consequences of guilt beyond the person of its author.
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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 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 concurrent 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.
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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.
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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
monarchical innovations. The more intimate the nature of such a
union may be, the greater interest have the members in the political
institutions of each other; and the greater right to insist that the
forms of government under which the compact was entered into should be
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 preexisting government of the
form which is to be guaranteed. As long, therefore, as the existing
republican forms are continued by the States, they are guaranteed by
the federal Constitution. Whenever, the States may choose to
substitute other republican forms, they have a right to do so, and
to claim the federal guaranty for the latter. The only restriction
imposed on them is, that they shall not exchange republican for
anti-republican 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 square with the republican
theory, to suppose, either 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 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 informed by those that
remain sound."
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7. "To consider all debts contracted, and engagements entered
into, before the adoption of the 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.
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(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 will 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.
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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 over-curious
discussion of it. It is one of those cases which must be left to
provide for itself. In general, it may be observed, that although no
political relation can subsist between the assenting and dissenting
States, yet the moral relations will remain 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
NO 44: The Same View Continued and Concluded
by James Madison
-
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 public councils, on the industry and morals of
people, and on the character of republican government, constitutes
an enormous debt against the State 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 less
informed part of the community. They have seen, too, that one
legislative interference is but the first link of a long chain of
repetitions, every subsequent interference being naturally produced by
the effects of the preceding. They very rightly infer, therefore, that
some thorough 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 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 office 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 their respective constitutional
authorities. In the first instance, the success of the usurpation will
depend on the executive and judiciary departments, which are to
expound and give effect to the legislative acts; and in the last
resort a remedy must be obtained from the people, who can, by the
election of more faithful representatives, annul the acts of the
usurpers. The truth is, that this ultimate redress may be more
confided in against unconstitutional acts of the federal than of the
State legislatures, for this plain reason, that as every such act of
the former will be an invasion of the rights of the latter, these will
be ever ready to mark the innovation, to sound the alarm to the
people, and to exert their local influence in effecting a change of
federal representatives. There being no such intermediate body between
the State legislatures and the people 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, anything 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 everywhere 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 questions, 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
NO 45: A Further Discussion of the Supposed Danger
from the Powers of the Union to the State Governments
by James Madison
-
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? Is it 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 moderate
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 cases 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 governments will have the advantage of the Federal
government, whether we compare them in respect to the immediate
dependence of the one on the other; to the weight of personal
influence which each side will possess; to the powers respectively
vested in them; to the predilection and probable support of the
people; to the disposition and faculty of resisting and frustrating,
the measure 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, it 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 sea-coast, and not very
numerous, whilst those of the latter will be spread over the face of
the country, and will be very numerous, the advantage in this view
also lies on the same side. It is true, that the Confederacy is to
possess, and may exercise, the power of collecting internal as well as
external taxes throughout the States; but it is probable that this
power will not be resorted to, except for supplemental purposes of
revenue; than 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 defence, 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 regulations 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 defence 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 many 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
essential purposes of the Union.
- PUBLIUS
NO 46: The Subject of the Last Paper Resumed with an Examination
of the Comparative Means of Influence of the
Federal and State Governments
by James Madison
-
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
or 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 most 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 projection of every thing that
was dear, and the acquisition of every thing that could be desirable
to the people at large. It was, nevertheless, invariably found,
after the transient enthusiasm for the early Congress 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 prerogatives of their governments. The motives on the
part of the State governments, to augment their prerogatives by
defalcations form 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 cooperate 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 opposed, 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 uninterrupted
succession of men ready to betray both; that the traitors should,
throughout this period, uniformly and systematically pursue some fixed
plan for the extension of the military establishment; that the
governments and the people of the States should silently and patiently
behold the gathering storm, and continue to supply the materials,
until it should be prepared to burst on their own heads, must appear
to every one more like the 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 hundreth 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 the 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
NO 47: The Meaning of the Maxim, Which Requires a Separation
of the Departments of Power, Examined and Ascertained
by James Madison
-
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,
self-appointed, 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; not 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 departments 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
council are made EX-OFFICIO justices of peace throughout the State
In Delaware, the chief executive magistrate is annually elected by
the legislative department. The speakers of the two legislative
branches are vice-presidents in the executive department. The
executive chief, with six others, appointed, three by each of the
legislative branches, constitutes the Supreme Court of Appeals; he
is joined with the legislative department in the appointment of the
other judges. Throughout the States, it appears that the 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 inferior 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
NO 48: The Same Subject Continued with a View to the Means
of Giving Efficacy in Practice to That Maxim
by James Madison
-
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 defence 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
coordinate 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 the legislature.
The constitutional trial by jury had been violated, and powers
assumed which had not been delegated by the constitution.
Executive powers had been usurped.
The salaries of the judges, which the constitution expressly
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
NO 49: The Same Subject Continued with the Same View
by James Madison
-
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 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
coordinate 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 commission, 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
not 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 numerous. 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
preexisting 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 principals,
and all of them are framed with singular ingenuity and precision.
- PUBLIUS
NO 50: The Same Subject Continued with the Same View
by James Madison
-
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 on
each other." This important and novel experiment in politics merits,
in several points of view, very particular attention. In some of
them it may, perhaps, as a single experiment, made under circumstances
somewhat peculiar, be 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 and leading
members had also been active and leading characters in the parties
which preexisted in the State.
Secondly. It appears that the same active and influential members of
the council had been active and influential members of the legislative
and executive branches, within the period to be reviewed; and even
patrons or opponents of the very measures to be thus brought to the
test of the constitution. Two of the members had been
vice-presidents of the State, and several others members of the
executive council, within the seven preceding years. One of them had
been speaker, and a number of others distinguished members, of the
legislative assembly within the same period.
Thirdly. Every page of their proceedings witnesses the effect of all
these circumstances on the temper of their deliberations. Throughout
the continuance of the council, it was split into two fixed and
violent parties. The fact is acknowledged and lamented by
themselves. Had this not been the case, the face of their
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, than 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
NO 51: The Same Subject Continued with the Same View and Concluded
by James Madison
-
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 defence must in this, as in all other cases, be made
commensurate to the danger of attack. Ambition must be made to
counteract ambition. The interest of the man must be connected with
the constitutional rights of the place. It may be a reflection on
human nature, that such devices should be necessary to control the
abuses of government. But what is government itself, but the
greatest of all 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 powers, 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-defence. 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 defence with which the executive magistrate
should be armed. But perhaps it would be neither altogether safe nor
alone sufficient. On ordinary occasions it might not be 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 proportionally increased.
Justice is the end of government. It is the end of civil society. It
ever has been and ever will be pursued until it be obtained, or
until liberty be lost in the pursuit. In a society under the forms
of which the stronger faction can readily unite and oppress the
weaker, anarchy may as truly be said to reign as in a state of nature,
where the weaker individual is not secured against the violence of the
stronger; and as, in the latter state, even the stronger individuals
are prompted, by the uncertainty of their condition, to submit to a
government which may protect the weak as well as themselves; so, in
the former state, will the more powerful factions or parties be
gradually induced, by a like motive, to wish for a government which
will protect all parties, the weaker as well as the more powerful.
It can be little doubted that if the State of Rhode Island was
separated from the Confederacy and left to itself, the insecurity of
rights under the 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
NO 52: Concerning the House of Representatives, with a View
to the Qualifications of the Electors and Elected,
and the Time of Service of the Members
by James Madison
-
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 legislature. 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 or 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.
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 an
alarm for the Hanoverian succession. From these facts it appears
that the greatest frequency of elections which has been deemed
necessary in that kingdom, for binding the representatives to their
constituents, does not exceed a triennial return of them. And if we
may argue from the degree of liberty retained even under septennial
elections, and all the other vicious ingredients in the
parliamentary constitution, we cannot doubt that a reduction of the
period from seven to three years, with the other necessary reforms,
would so far extend the influence of the people over their
representatives as to satisfy us that biennial elections, under the
federal system, cannot possibly be dangerous to the requisite
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 the people, as other legislative bodies are, but
that it will be, moreover, watched and controlled by the several
collateral legislatures, which other legislative bodies are not. And
in the third place, no comparison can be made between the means that
will be possessed by the more permanent branches of the federal
government for seducing, if they should be disposed to seduce, the
House of Representatives from their duty to the people, and the
means of influence over the popular branch possessed by the other
branches of the government above cited. With less power, therefore, to
abuse, the federal representatives can be less tempted on one side,
and will be doubly watched on the other.
- PUBLIUS
NO 53: The Same Subject Continued with a View of the Term
of the Service of the Members
by James Madison
-
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
the local affairs connected with them, and can with difficulty be
correctly learned in any other place than in the central councils,
to which a knowledge of them will be brought by the representatives of
every part of the empire. Yet some knowledge of the affairs, and
even of the laws, of all the States, ought to be possessed by the
members from each of the States. How can foreign trade be properly
regulated by uniform laws, without some acquaintance with the
commerce, the ports, the usages, and the regulations of the
different States? How can the trade between the different States be
duly regulated without some knowledge of their relative situations
in these and other respects. How can taxes be judiciously imposed
and effectually collected, if they be not accommodated to the
different laws and local circumstances relating to these 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 cooperation. Some portion of this knowledge may, no doubt, be
acquired in a man's closet; but some of it also can only be derived
from the public sources of information; and all of it will be acquired
to best effect by a practical attention to the subject during the
period of actual service in the legislature.
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 re-elections, 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
NO 54: The Same Subject Continued with a View
to the Ratio of Representation
by James Madison
-
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 ration 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 observation. It is a
fundamental principle of the proposed Constitution, that as the
aggregate number of representatives allotted to the several States
is to be determined by a federal rule, founded on the aggregate number
of inhabitants, so the right of choosing this allotted number in
each State is to be 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 defence? We have
hitherto proceeded on the idea that representation related to
persons only, and not at all to property. But is it a just idea?
Government is 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 large 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
cooperation, 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
NO 55: The Same Subject Continued in Relation
to the Total Number of the Body
by James Madison
-
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 election than the public safety
might otherwise require, the members of Congress need be less numerous
than if they possessed the whole power of legislation, and were
under no other than the ordinary restraints of other legislative
bodies.
With these general ideas in our minds, let us weigh the objections
which have been stated against the number of members proposed for
the House of Representatives. It is said, in the first place, that
so small a number cannot be safely trusted with so much power.
The number of which this branch of the legislature is to consist, at
the outset of the government, will be sixty-five. Within three years a
census is to be taken, when the 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 so 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 chosen by, nor
responsible to, their fellow-citizens at large; though appointed
from year to year, and recallable at pleasure, they were generally
continued for three years, and, prior to the ratification of the
federal articles, for a still longer term. They held their
consultations always under the veil of secrecy; they had the sole
transaction of our affairs with foreign nations; through the whole
course of the war they had the fate of their country more in their
hands than it is to be hoped will ever be the case with our future
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 all be American citizens,
cannot possibly be sources of danger. The only means, then, which they
can possess, will be in the dispensation of appointments. Is it here
that suspicion rests her charge? Sometimes we are told that this
fund of corruption is to be exhausted by the President in subduing the
virtue of the Senate. Now, the fidelity of the other House is to be
the victim. The improbability of such a mercenary and 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 in 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
NO 56: The Same Subject Continued in Relation to the Same Point
by James Madison
-
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 million. 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. *032 It cannot be supposed that the
half thus elected, and who do not even reside among the people at
large, can add anything 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
constituents, 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
depositary of the safety, interest, and happiness of eight
millions- that is to say, there will be one representative only to
maintain the rights and explain the situation of twenty-eight thousand
six hundred and seventy constituents, in an assembly exposed to the
whole force of executive influence, and extending its authority to
every object of legislation within a nation whose affairs are in the
highest degree diversified and 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
NO 57: The Same Subject Continued in Relation
of the Supposed Tendency of the Plan of the Convention
to Elevate the Few Above the Many
by James Madison
-
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 judgment or disappoint the
inclination of the people.
If we consider the situation of the men on whom the free suffrages
of their fellow-citizens may confer the representative trust, we shall
find it involving every security which can be devised or desired for
their fidelity to their constituents.
In the first place, as they will have been distinguished by the
preference of their fellow-citizens, we are to 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 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 country, 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
NO 58: The Same Subject Continued in Relation
to the Future Augmentation of the Members
by James Madison
-
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 ascendancy 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 form 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
NO 59: Concerning the Regulation of Elections
by Alexander Hamilton
-
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. *033 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
the power 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 the power to do this in
one instance, they ought to have it in every other. There are cases in
which the pernicious tendency of such a power may be far more
decisive, without any motive equally cogent with that which must
have regulated the conduct of the convention in respect to the
formation of the Senate, to recommend their admission into the system.
So far as that construction may expose the Union to the possibility of
injury from the State legislatures, it is an evil; but it is an evil
which could not have been avoided without excluding the States, in
their political capacities, wholly from a place in the organization of
the national 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 multiply the
chances of ambition, will be a never failing bait to all such
influential characters in the State administrations as are capable
of preferring their own emolument and advancement to the public
weal. With so effectual a weapon in their hands as the exclusive power
of regulating elections for the national 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
NO 60: The Same Subject Continued
by Alexander Hamilton
-
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 still more in the manner in which they will
be brought into action in its various branches, must form a powerful
obstacle to a concert of views in any partial scheme of elections.
There is sufficient diversity in the state of property, in the genius,
manners, and habits of the people of the different parts of the Union,
to occasion a material diversity of disposition in their
representatives 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 cooperation 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 primitive 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 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 preeminence 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? of the latter is the case, (as every
intelligent man knows it to be,) *034 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 overthrow their tyrants, and to substitute
men who would be disposed to avenge the violated majesty of the
people?
- PUBLIUS
NO 61: The Same Subject Continued and Concluded
by Alexander Hamilton
-
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 of 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
NO 62: Concerning the Constitution of the Senate with Regard
To the Qualifications of the Members, the Manner of Appointing
Them, the Equality of Representation, the Number of
the Senators and the Duration of Their Appointments
by James Madison
-
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 qualifications of senators; II. The appointment of them by
the State legislatures; III. The equality of representation in the
Senate; IV. The number of senators, and the term for which they are to
be elected; V. The powers vested in the Senate.
I. The qualifications proposed for senators, as 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 stability of character, requires at the same time that
the senator should have reached a period of life most likely to supply
these advantages; and which, participating immediately in transactions
with foreign nations, ought to be exercised by none who are not
thoroughly weaned from the prepossessions and habits incident to
foreign 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 defence which
it involves in favor of the smaller States, would be more rational, if
any interests common to them, and distinct from those of the other
States, would otherwise be exposed to peculiar danger. But as the
larger States will always be able, by their power over the supplies,
to defeat unreasonable exertions of this prerogative of the lesser
States, and as the facility and excess of lawmaking seem to be the
diseases to which our governments are most liable, it is not
impossible that this part of the Constitution may be more convenient
in practice than it appears to many in contemplation.
IV. The number of senators, and the duration of their appointment,
come next to be considered. In order to form an accurate judgment on
both these points, it will be proper to inquire into the purposes
which are to be answered by a senate; and in order to ascertain these,
it will be necessary to review the inconveniences which a republic
must suffer from the want of such an institution.
First. It is a misfortune incident to republican 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 of 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 indiscretion of
each other. Every nation, consequently, whose affairs betray a want of
wisdom and stability, may calculate on every loss which can be
sustained form 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 today, can guess what it will
be tomorrow. Law is defined to be a rule of action; but how can that
be a rule, which is little known, and less fixed?
Another effect of public instability is the unreasonable advantage
it gives to the sagacious, the enterprising, and the moneyed few
over the industrious and uninformed mass of the people. Every new
regulation concerning commerce or revenue, or in any manner
affecting the value of the different species of property, presents a
new harvest to those who watch the change, and can trace its
consequences; a harvest, reared not by themselves, but by the toils
and cares of the great body of their fellow-citizens. This is a
state of things in which it may be said with some truth that laws
are made for the 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
NO 63: A Further View of the Constitution of the Senate
in Regard to the Duration of Appointment of Its Members
by James Madison
-
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 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 form 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 defence 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 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 government, 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 preeminence 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 co-equal 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 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
NO 64: A Further View of the Constitution of the Senate
in Regard to the Power of Making Treaties
by John Jay
-
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 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
reasons 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, some times 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 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. There 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 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 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, conscience, the
love of country, and family affections and attachments, afford
security for their fidelity. In short, as the Constitution has taken
the utmost care that they shall be men of talents, and integrity, we
have reason to be persuaded that the treaties they make will be as
advantageous as, all circumstances considered, could be made; and so
far as the fear of punishment and disgrace can operate, that motive to
good behavior is amply afforded by the article on the subject of
impeachments.
- PUBLIUS
NO 65: A Further View of the Constitution of the Senate
in Relation to Its Capacity as a Court
for the Trial of Impeachments
by Alexander Hamilton
-
THE remaining powers which the plan of the convention allots to
the Senate, in a distinct capacity, are comprised in their
participation with the executive in the appointment to offices, and in
their judicial character as a court for the trial of impeachments.
As in the business of appointments the executive will be the principal
agent, the provisions relating to it will most properly be discussed
in the examination of that department. We will, therefore, conclude
this head with a view of the judicial character of the Senate.
A well-constituted court for the trial of impeachments is an
object not more to be desired than difficult to be obtained in a
government wholly elective. The subjects of its jurisdiction are those
offences which proceed from the misconduct of public men, or, in other
words, from the abuse or violation of some public trust. They are of a
nature which may with peculiar propriety be denominated POLITICAL,
as they relate chiefly to injuries done immediately to the society
itself. The prosecution of them, for this reason, will seldom fail
to agitate the passions of the whole community, and to divide it
into parties more or less friendly or inimical to the accused. In many
cases it will connect itself with the preexisting factions, and will
enlist all their animosities, partialities, influence, and interest on
one side or on the other; and in such cases there will always be the
greatest danger that the decision will be regulated more by the
comparative strength of parties, than by the real demonstrations of
innocence or guilt.
The delicacy and magnitude of a trust which so deeply concerns the
political reputation and existence of every man engaged in the
administration of public affairs, speak for themselves. The difficulty
of placing it rightly, in a government resting entirely on the basis
of periodical elections, will as readily be perceived, when it is
considered that the most conspicuous characters in it will, from
that circumstance, be too often the leaders or the tools of the most
cunning or the most numerous faction, and on this account, can
hardly be expected to possess the requisite neutrality towards those
whose conduct may be the subject of scrutiny.
The convention, it appears, thought the Senate the most fit
depositary of this of this important trust. Those who can best discern
the intrinsic difficulty of the thing, will be least hasty in
condemning that opinion, and will be most inclined to allow due weight
to the arguments which may be supposed to have produced it.
What, it may be asked, is the true spirit of the institution itself?
Is it not designed as a method of NATIONAL INQUEST into the conduct of
public men? If this be the design of it, who can so properly be the
inquisitors for the nation as the representatives of the nation
themselves? It is not disputed that the power of originating the
inquiry, or, in other words, of preferring the impeachment, ought to
be lodged in the hands of one branch of the legislative body. Will not
the reasons which indicate the propriety of this arrangement
strongly plead for an admission of the other branch of that body to
a share of the inquiry? The model from which the idea of this
institution has been borrowed, pointed out that course to the
convention. In Great Britain it is the province of the House of
Commons to prefer the impeachment, and of the House of Lords to decide
upon it. Several of the State constitutions have followed the example.
As well the latter, as the former, seem to have regarded the
practice of impeachments as a bridle in the hands of the legislative
body upon the executive servants of the government. Is not this the
true light in which it ought to be regarded?
Where else than in the Senate could have been found a tribunal
sufficiently dignified, or sufficiently independent? What other body
would be likely to feel confidence enough in its own situation, to
preserve, unawed and uninfluenced, the necessary impartiality
between an individual accused, and the representatives of the
people, his accusers?
Could the Supreme Court have been relied upon as answering this
description? It is much to be doubted, whether the members of that
tribunal would at all times be endowed with so eminent a portion of
fortitude, as would be called for in the execution of so difficult a
task; and it is still more to be doubted, whether they would possess
the degree of credit and authority, which might, on certain occasions,
be indispensable towards reconciling the people to a decision that
should happen to clash with an accusation brought by their immediate
representatives. A deficiency in the first, would be fatal to the
accused; in the last, dangerous to the public tranquillity. The
hazard, in both these respects, could only be avoided, if at all, by
rendering that tribunal more numerous than would consist with a
reasonable attention to economy. The necessity of a numerous court for
the trial of impeachments, is equally dictated by the nature of the
proceeding. This can never be tied down by such strict rules, either
in the delineation of the offence by the prosecutors, or in the
construction of it by the judges, as in common cases serve to limit
the discretion of courts in favor of personal security. There will
be no jury to stand between the judges who are to pronounce the
sentence of the law, and the party who is to receive or suffer it. The
awful discretion which a court of impeachments must necessarily
have, to doom to honor or to infamy the most confidential and the most
distinguished characters of the community, forbids the commitment of
the trust to a small number of persons.
These considerations seem alone sufficient to authorize a
conclusion, that the Supreme Court would have been an improper
substitute for the Senate, as a court of impeachments. There remains a
further consideration, which will not a little strengthen this
conclusion. It is this: The punishment which may be the consequence of
conviction upon impeachment, is not to terminate the chastisement of
the offender. After having been sentenced to a perpetual ostracism
from the esteem and confidence, and honors and emoluments of his
country, he will still be liable to prosecution and punishment in
the ordinary course of law. Would it be proper that the persons who
had disposed of his fame, and his most valuable rights as a citizen,
in one trial, should, in another trial, for the same offence, be
also the disposers of his life and his fortune? Would there not be the
greatest reasons to apprehend, that error, in the first sentence,
would be the parent of error in the second sentence? That the strong
bias of one decision would be apt to overrule the influence of any new
lights which might be brought to vary the complexion of another
decision? Those who know any thing of human nature, will not
hesitate to answer these questions in the affirmative; and will be
at no loss to perceive, that by making the same persons judges in both
cases, those who might happen to be the objects of prosecution
would, in a great measure, be deprived of the double security intended
them by a double trial. The loss of life and estate would often be
virtually included in a sentence which, in its terms, imported nothing
more than dismission from a present, and disqualification for a
future, office. It may be said, that the intervention of a jury, in
the second instance, would obviate the danger. But juries are
frequently influenced by the opinions of judges. They are sometimes
induced to find special verdicts, which refer the main question to the
decision of the court. Who would be willing to stake his life and
his estate upon the verdict of a jury acting under the auspices of
judges; who had predetermined his guilt?
Would it have been an improvement of the plan, to have united the
Supreme Court with the Senate, in the formation of the court of
impeachments? This union would certainly have been attended with
several advantages; but would they not have been overbalanced by the
signal disadvantage, already stated, arising from the agency of the
same judges in the double prosecution to which the offender would be
liable? To a certain extent, the benefits of that union will be
obtained from making the chief justice of the Supreme Court the
president of the court of impeachments, as is proposed to be done in
the plan of the convention; while the inconveniences of an entire
incorporation of the former into the latter will be substantially
avoided. This was perhaps the prudent mean. I forbear to remark upon
the additional pretext for clamor against the judiciary, which so
considerable an augmentation of its authority would have afforded.
Would it have been desirable to have composed the court for the
trial of impeachments, of persons wholly distinct from the other
departments of the government? There are weighty arguments, as well
against, as in favor of, such a plan. To some minds it will not appear
a trivial objection, that it could tend to increase the complexity
of the political machine, and to add a new spring to the government,
the utility of which would at best be questionable. But an objection
which will not be thought by any unworthy of attention, is this: a
court formed upon such a plan, would either be attended with a heavy
expense, or might in practice be subject to a variety of casualties
and inconveniences. It must either consist of permanent officers,
stationary at the seat of government, and of course entitled to
fixed and regular stipends, or of certain officers of the State
governments, to be called upon whenever an impeachment was actually
depending. It will not be easy to imagine any third mode materially
different, which could rationally be proposed. As the court, for
reasons already given, ought to be numerous, the first scheme will
be reprobated by every man who can compare the extent of the public
wants with the means of supplying them. The second will be espoused
with caution by those who will seriously consider the difficulty of
collecting men dispersed over the whole Union; the injury to the
innocent, from the procrastinated determination of the charges which
might be brought against them; the advantage to the guilty, from the
opportunities which delay would afford to intrigue and corruption; and
in some cases the detriment to the State, from the prolonged
inaction of men whose firm and faithful execution of their duty
might have exposed them to the persecution of an intemperate or
designing majority in the House of Representatives. Though this latter
supposition may seem harsh, and might not be likely often to be
verified, yet it ought not to be forgotten that the demon of faction
will, at certain seasons, extend his sceptre over all numerous
bodies of men.
But though one or the other of the substitutes which have been
examined, or some other that might be devised, should be thought
preferable to the plan, in this respect, reported by the convention,
it will not follow that the Constitution ought for this reason to be
rejected. If mankind were to resolve to agree in no institution of
government, until every part of it had been adjusted to the most exact
standard of perfection, society would soon become a general scene of
anarchy, and the world a desert. Where is the standard of perfection
to be found? Who will undertake to unite the discordant opinions of
a whole community, in the same judgment of it; and to prevail upon one
conceited projector to renounce his infallible criterion for the
fallible criterion of his more conceited neighbor? To answer the
purpose of the adversaries of the Constitution, they ought to prove,
not merely that particular provisions in it are not the best which
might have been imagined, but that the plan upon the whole is bad
and pernicious.
- PUBLIUS
NO 66: The Same Subject Continued
by Alexander Hamilton
-
A REVIEW of the principal objections that have appeared against
the proposed court for the trial of impeachments, will not
improbably eradicate the remains of any unfavorable impressions
which may still exist in regard to this matter.
The first of these objections is, that the provision in question
confounds legislative and judiciary authorities in the same body, in
violation of that important and well-established maxim which
requires a separation between the different departments of power.
The true meaning of this maxim has been discussed and ascertained in
another place, and has been shown to be entirely compatible with a
partial intermixture of those departments for special purposes,
preserving them, in the main, distinct and unconnected. This partial
intermixture is even, in some cases, not only proper but necessary
to the mutual defence of the several members of the government against
each other. An absolute or qualified negative in the executive upon
the acts of the legislative body, is admitted, by the ablest adepts in
political science, to be an indispensable barrier against the
encroachments of the latter upon the former. And it may, perhaps, with
no less reason be contended, that the powers relating to
impeachments are, as before intimated, an essential check in the hands
of that body upon the encroachments of the executive. The division
of them between the two branches of the legislature, assigning to
one the right of accusing, to the other the right of judging, avoids
the inconvenience of making the same persons both ACCUSERS and judges;
and guards against the danger of persecution, from the prevalency of a
factious spirit in either of those branches. As the concurrence of two
thirds of the Senate will be requisite to a condemnation, the security
to innocence, from this additional circumstance, will be as complete
as itself can desire.
It is curious to observe, with what vehemence this part of the
plan is assailed, on the principle here taken notice of, by men who
profess to admire, without exception, the constitution of this
State; while that constitution makes the Senate, together with the
chancellor and judges of the Supreme Court, not only a court of
impeachments, but the highest judicatory in the State, in all
causes, civil and criminal. The proportion, in point of numbers, of
the chancellor and judges to the senators, is so inconsiderable,
that the judiciary authority of New York, in the last resort, may,
with truth, be said to reside in its Senate. If the plan of the
convention be, in this respect, chargeable with a departure from the
celebrated maxim which has been so often mentioned, and seems to be so
little understood, how much more culpable must be the constitution
of New York? *035
A second objection to the Senate, as a court of impeachments, is,
that it contributes to an undue accumulation of power in that body,
tending to give to the government a countenance too aristocratic.
The Senate, it is observed, is to have concurrent authority with the
Executive in the formation of treaties and in the appointment to
offices: if, say the objectors, to these prerogatives is added that of
deciding in all cases of impeachment, it will give a decided
predominancy to senatorial influence. To an objection so little
precise in itself, it is not each to find a very precise answer. Where
is the measure or criterion to which we can appeal, for determining
what will give the Senate too much, too little, or barely the proper
degree of influence? Will it not be more safe, as well as more simple,
to dismiss such vague and uncertain calculations, to examine each
power by itself, and to decide, on general principles, where it may be
deposited with most advantage and least inconvenience?
If we take this course, it will lead to a more intelligible, if
not to a more certain result. The disposition of the power of making
treaties, which has obtained in the plan of the convention, will,
then, if I mistake not, appear to be fully justified by the
consideration stated in a former number, and by others which will
occur under the next head of our inquiries. The expediency of the
junction of the Senate with the Executive, in the power of
appointing to offices, will, I trust, be placed in a light not less
satisfactory, in the disquisitions under the same head. And I
flatter myself the observations in my last paper must have gone no
inconsiderable way towards proving that it was not easy, if
practicable, to find a more fit receptacle for the power of
determining impeachments, than that which has been chosen. If this
be truly the case, the hypothetical dread of the too great weight of
the Senate ought to be discarded from our reasonings.
But this hypothesis, such as it is, has already been refuted in
the remarks applied to the duration in office prescribed for the
senators. It was by them shown, as well on the credit of historical
examples, as from the reason of the thing, that the most popular
branch of every government, partaking of the republican genius, by
being generally the favorite of the people, will be as generally a
full match, if not an overmatch, for every other member of the
Government.
But independent of this most active and operative principle, to
secure the equilibrium of the national House of Representatives, the
plan of the convention has provided in its favor several important
counterpoises to the additional authorities to be conferred upon the
Senate. The exclusive privilege of originating money bills will belong
to the House of Representatives. The same house will possess the
sole right of instituting impeachments: is not this a complete
counterbalance to that of determining them? The same house will be the
umpire in all elections of the President, which do not unite the
suffrages of a majority of the whole number of electors; a case
which it cannot be doubted will sometimes, if not frequently,
happen. The constant possibility of the thing must be a fruitful
source of influence to that body. The more it is contemplated, the
more important will appear this ultimate though contingent power, of
deciding the competitions of the most illustrious citizens of the
Union, for the first office in it. It would not perhaps be rash to
predict, that as a mean of influence it will be found to outweigh
all the peculiar attributes of the Senate.
A third objection to the Senate as a court of impeachments, is drawn
from the agency they are to have in the appointments to office. It
is imagined that they would be too indulgent judges of the conduct
of men, in whose official creation they had participated. The
principle of this objection would condemn a practice, which is to be
seen in all the State governments, if not in all the governments
with which we are acquainted: I mean that of rendering those who
hold offices during pleasure, dependent on the pleasure of those who
appoint them. With equal plausibility might it be alleged in this
case, that the favoritism of the latter would always be an asylum
for the misbehavior of the former. But that practice, in contradiction
to this principle, proceeds upon the presumption, that the
responsibility of those who appoint, for the fitness and competency of
the persons on whom they bestow their choice, and the interest they
will have in the respectable and prosperous administration of affairs,
will inspire a sufficient disposition to dismiss from a share in it
all such who, by their conduct, shall have proved themselves
unworthy of the confidence reposed in them. Though facts may not
always correspond with this presumption, yet if it be, in the main,
just, it must destroy the supposition that the Senate, who will merely
sanction the choice of the Executive, should feel a bias, towards
the objects of that choice, strong enough to blind them to the
evidences of guilt so extraordinary, as to have induced the
representatives of the nation to become its accusers.
If any further arguments were necessary to evince the
improbability of such a bias, it might be found in the nature of the
agency of the Senate in the business of appointments.
It will be the office of the President to nominate, and, with the
advice and consent of the Senate, to appoint. There will, of course,
be no exertion of choice on the part of the Senate. They may defeat
one choice of the Executive, and oblige him to make another; but
they cannot themselves choose- they can only ratify or reject the
choice of the President. They might even entertain a preference to
some other person, at the very moment they were assenting to the one
proposed, because there might be no positive ground of opposition to
him; and they could not be sure, if they withheld their assent, that
the subsequent nomination would fall upon their own favorite, or
upon any other person in their estimation more meritorious than the
one rejected. Thus it could hardly happen, that the majority of the
Senate would feel any other complacency towards the object of an
appointment than such as the appearances of merit might inspire, and
the proofs of the want of it destroy.
A fourth objection to the Senate, in the capacity of a court of
impeachments, is derived from its union with the Executive in the
power of making treaties. This, it has been said, would constitute the
senators their own judges, in every case of a corrupt or perfidious
execution of that trust. After having combined with the Executive in
betraying the interests of the nation in a ruinous treaty, what
prospect, it is asked, would there be of their being made to suffer
the punishment they would deserve, when they were themselves to decide
upon the accusation brought against them for the treachery of which
they have been guilty?
This objection has been circulated with more earnestness and with
greater show of reason than any other which has appeared against
this part of the plan; and yet I am deceived if it does not rest
upon an erroneous foundation.
The security essentially intended by the Constitution against
corruption and treachery in the formation of treaties, is to be sought
for in the numbers and characters of those who are to make them. The
JOINT AGENCY of the Chief Magistrate of the Union, and of two thirds
of the members of a body selected by the collective wisdom of the
legislatures of the several States, is designed to be the pledge for
the fidelity of the national councils in this particular. The
convention might with propriety have meditated the punishment of the
Executive, for a deviation from the instructions of the Senate, or a
want of integrity in the conduct of the negotiations committed to him;
they might also have had in view the punishment of a few leading
individuals in the Senate, who should have prostituted their influence
in that body as the mercenary instruments of foreign corruption: but
they could not, with more or with equal propriety, have contemplated
the impeachment and punishment of two thirds of the Senate, consenting
to an improper treaty, than of a majority of that or of the other
branch of the national legislature, consenting to a pernicious or
unconstitutional law,- a principle which, I believe, has never been
admitted into any government. How, in fact, could a majority in the
House of Representatives impeach themselves? Not better, it is
evident, than two thirds of the Senate might try themselves. And yet
what reason is there, that a majority of the House of Representatives,
sacrificing the interests of the society by an unjust and tyrannical
act of legislation, should escape with impunity, more than two
thirds of the Senate, sacrificing the same interests in an injurious
treaty with a foreign power? The truth is, that in all such cases it
is essential to the freedom and to the necessary independence of the
deliberations of the body, that the members of it should be exempt
from punishment for acts done in a collective capacity; and the
security to the society must depend on the care which is taken to
confide the trust to proper hands, to make it their interest to
execute it with fidelity, and to make it as difficult as possible
for them to combine in any interest opposite to that of the public
good.
So far as might concern the misbehavior of the Executive in
perverting the instructions or contravening the views of the Senate,
we need not be apprehensive of the want of a disposition in that
body to punish the abuse of their confidence, or to vindicate their
own authority. We may thus far count upon their pride, if not upon
their virtue. And so far even as might concern the corruption of
leading members, by whose arts and influence the majority may have
been inveigled into measures odious to the community, if the proofs of
that corruption should be satisfactory, the usual propensity of
human nature will warrant us in concluding that there would be
commonly no defect of inclination in the body to divert the public
resentment from themselves by a ready sacrifice of the authors of
their mismanagement and disgrace.
- PUBLIUS
NO 67: Concerning the Constitution of the President:
A Gross Attempt to Misrepresent This Part of the Plan Detected
by Alexander Hamilton
-
THE constitution of the executive department of the proposed
government, claims next our attention.
There is hardly any part of the system which could have been
attended with greater difficulty in the arrangement of it than this;
and there is, perhaps, none which has been inveighed against with less
candor or criticised with less judgment.
Here the writers against the Constitution seem to have taken pains
to signalize their talent of misrepresentation. Calculating upon the
aversion of the people to monarchy, they have endeavored to enlist all
their jealousies and apprehensions in opposition to the intended
President of the United States; not merely as the embryo, but as the
full-grown progeny, of that detested parent. To establish the
pretended affinity, they have not scrupled to draw resources even from
the regions of fiction. The authorities of a magistrate, in few
instances greater, in some instances less, than those of a governor of
New York, have been magnified into more than royal prerogatives. He
has been decorated with attribute superior in dignity and splendor
to those of a king of Great Britain. He has been shown to us with
the diadem sparkling on his brow and the imperial purple flowing in
his train. He has been seated on a throne surrounded with minions
and mistresses, giving audience to the envoys of foreign potentates,
in all the supercilious pomp of majesty. The images of Asiatic
despotism and voluptuousness have scarcely been wanting to crown the
exaggerated scene. We have been taught to tremble at the terrific
visages of murdering janizaries, and to blush at the unveiled
mysteries of a future seraglio.
Attempts so extravagant as these to disfigure or, it might rather be
said, to metamorphose the object, render it necessary to take an
accurate view of its real nature and form: in order as well to
ascertain its true aspect and genuine appearance, as to unmask the
disingenuity and expose the fallacy of the counterfeit resemblances
which have been so insidiously, as well as industriously, propagated.
In the execution of this task, there is no man who would not find it
an arduous effort either to behold with moderation, or to treat with
seriousness, the devices, not less weak than wicked, which have been
contrived to pervert the public opinion in relation to the subject.
They so far exceed the usual though unjustifiable licences of party
artifice, that even in a disposition the most candid and tolerant,
they must force the sentiments which favor an indulgent construction
of the conduct of political adversaries to give place to a voluntary
and unreserved indignation. It is impossible not to bestow the
imputation of deliberate imposture and deception upon the gross
pretence of a similitude between a king of Great Britain and a
magistrate of the character marked out for that of the President of
the United States. It is still more impossible to withhold that
imputation from the rash and barefaced expedients which have been
employed to give success to the attempted imposition.
In one instance, which I cite as a sample of the general spirit, the
temerity has proceeded so far as to ascribe to the President of the
United States a power which by the instrument reported is expressly
allotted to the Executives of the individual States. I mean the
power of filling casual vacancies in the Senate.
This bold experiment upon the discernment of his countrymen has been
hazarded by a writer who (whatever may be his real merit) has had no
inconsiderable share in the applauses of his party; *036 and who, upon
this false and unfounded suggestion, has built a series of
observations equally false and unfounded. Let him now be confronted
with the evidence of the fact, and let him, if he be able, justify
or extenuate the shameful outrage he has offered to the dictates of
truth and to the rules of fair dealing.
The second clause of the second section of the second article
empowers the President of the United States "to nominate, and by and
with the advice and consent of the Senate, to appoint ambassadors,
other public ministers and consuls, judges of the Supreme Court, and
all other officers of United States whose appointments are not in
the Constitution otherwise provided for, and which shall be
established by law." Immediately after this clause follows another
in these words: "The President shall have power to fill up all
vacancies that may happen during the recess of the Senate, by granting
commissions which shall expire at the end of their next session." It
is from this last provision that the pretended power of the
President to fill vacancies in the Senate has been deduced. A slight
attention to the clauses, and to the obvious meaning of the terms,
will satisfy us that the deduction is not even colorable.
The first of these two clauses, it is clear, only provides a mode
for appointing such officers, "whose appointments are not otherwise
provided for in the Constitution, and which shall be established by
law"; of course it cannot extend to the appointments of senators,
whose appointments are otherwise provided for in the
Constitution, *037 and who are established by the Constitution, and
will not require a future establishment by law. This position will
hardly be contested.
The last of these two clauses, it is equally clear, cannot be
understood to comprehend the power of filling vacancies in the Senate,
for the following reasons:- First. The relation in which that clause
stands to the other, which declares the general mode of appointing
officers of the United States, denotes it to be nothing more than a
supplement to the other, for the purpose of establishing an
auxiliary method of appointment, in cases to which the general
method was inadequate. The ordinary power of appointment is confined
to the President and Senate jointly, and can therefore only be
exercised during the session of the Senate; but as it would have
been improper to oblige this body to be continually in session for the
appointment of officers, and as vacancies might happen in their
recess, which it might be necessary for the public service to fill
without delay, the succeeding clause is evidently intended to
authorize the President, singly, to make temporary appointments
"during the recess of the Senate, by granting commissions which
shall expire at the end of their next session." Secondly. If this
clause is to be considered as supplementary to the one which precedes,
the vacancies of which it speaks must be construed to relate to the
"officers" described in the preceding one; and this, we have seen,
excludes from its description the members of the Senate. Thirdly.
The time within which the power is to operate, "during the recess of
the Senate," and the duration of the appointments, "to the end of
the next session" of that body, conspire to elucidate the sense of the
provision, which, if it had been intended to comprehend senators,
would naturally have referred the temporary power of filling vacancies
to the recess of the State legislatures, who are to make the permanent
appointments, and not to the recess of the national Senate, who are to
have no concern in those appointments; and would have extended the
duration in office of the temporary senators to the next session of
the legislature of the State, in whose representation the vacancies
had happened, instead of making it to expire at the end of the ensuing
session of the national Senate. The circumstances of the body
authorized to make the permanent appointments would, of course, have
governed the modification of a power which related to the temporary
appointments; and as the national Senate is the body, whose
situation is alone contemplated in the clause upon which the
suggestion under examination has been founded, the vacancies to
which it alludes can only be deemed to respect those officers in whose
appointment that body has a concurrent agency with the President.
But lastly, the first and second clauses of the third section of the
first article, not only obviate all possibility of doubt, but
destroy the pretext of misconception. The former provides, that "the
Senate of the United States shall be composed of two Senators from
each State, chosen by the legislature thereof for six years"; and
the latter directs, that, "if vacancies in that body should happen
by resignation or otherwise, during the recess of the legislature of
ANY STATE, the Executive THEREOF may make temporary appointments until
the next meeting of the legislature, which shall then fill such
vacancies." Here is an express power given, in clear and unambiguous
terms, to the State Executives, to fill casual vacancies in the
Senate, by temporary appointments; which not only invalidates the
supposition, that the clause before considered could have been
intended to confer that power upon the President of the United States,
but proves that this supposition, destitute as it is even of the merit
of plausibility, must have originated in an intention to deceive the
people, too palpable to be obscured by sophistry, too atrocious to
be palliated by hypocrisy.
I have taken the pains to select this instance of misrepresentation,
and to place it in a clear and strong light, as an unequivocal proof
of the unwarrantable arts which are practiced to prevent a fair and
impartial judgment of the real merits of the Constitution submitted to
the consideration of the people. Nor have I scrupled, in so flagrant a
case, allow myself a severity of animadversion little congenial with
the general spirit of these papers. I hesitate not to submit it to the
decision of any candid and honest adversary of the proposed
government, whether language can furnish epithets of too much
asperity, for so shameless and so prostitute an attempt to impose on
the citizens of America.
- PUBLIUS
NO 68: The View of the Constitution of the President
Continued in Relation to the Mode of Appointment
by Alexander Hamilton
-
THE mode of appointment of the Chief Magistrate of the United States
is almost the only part of the system, of any consequence, which has
escaped without severe censure, or which has received the slightest
mark of approbation from its opponents. The most plausible of these,
who has appeared in print, has even deigned to admit that the election
of the President is pretty well guarded. *038 I venture somewhat
further, and hesitate not to affirm that if the manner of it be not
perfect, it is at least excellent. It unites in an eminent degree
all the advantages the union of which was to be wished for.
It was desirable that the sense of the people should operate in
the choice of the person to whom so important a trust was to be
confided. This end will be answered by committing the right of
making it, not to any preestablished body, but to men chosen by the
people for the special purpose, and at the particular conjuncture.
It was equally desirable, that the immediate election should be made
by men most capable of analyzing the qualities adapted to the station,
and acting under circumstances favorable to deliberation, and to a
judicious combination of all the reasons and inducements which were
proper to govern their choice. A small number of persons, selected
by their fellow-citizens from the general mass, will be most likely to
possess the information and discernment requisite to such
complicated investigations.
It was also peculiarly desirable to afford as little opportunity
as possible to tumult and disorder. This evil was not least to be
dreaded in the election of a magistrate, who was to have so
important an agency in the administration of the government as the
President of the United States. But the precautions which have been so
happily concerted in the system under consideration, promise an
effectual security against this mischief. The choice of several, to
form an intermediate body of electors, will be much less apt to
convulse the community with any extraordinary or violent movements,
than the choice of one who was himself to be the final object of the
public wishes. And as the electors, chosen in each State, are to
assemble and vote in the State in which they are chosen, this detached
and divided situation will expose them much less to heats and
ferments, which might be communicated from them to the people, than if
they were all to be convened at one time, in one place.
Nothing was more to be desired than that every practicable
obstacle should be opposed to cabal, intrigue, and corruption. These
most deadly adversaries of republican government might naturally
have been expected to make their approaches from more than one
quarter, but chiefly from the desire in foreign powers to gain an
improper ascendant in our councils. How could they better gratify
this, than by raising a creature of their own to the chief
magistracy of the Union? But the convention have guarded against all
danger of this sort, with the most provident and judicious
attention. They have not made the appointment of the President to
depend on any preexisting bodies of men, who might be tampered with
beforehand to prostitute their votes; but they have referred it in the
first instance to an immediate act of the people of America, to be
exerted in the choice of persons for the temporary and sole purpose of
making the appointment. And they have excluded from eligibility to
this trust, all those who from situation might be suspected of too
great devotion to the President in office. No senator, representative,
or other person holding a place of trust or profit under the United
States, can be of the numbers of the electors. Thus without corrupting
the body of the people, the immediate agents in the election will at
least enter upon the task free from any sinister bias. Their transient
existence, and their detached situation, already taken notice of,
afford a satisfactory prospect of their continuing so, to the
conclusion of it. The business of corruption, when it is to embrace so
considerable a number of men, requires time as well as means. Nor
would it be found easy suddenly to embark them, dispersed as they
would be over thirteen States, in any combinations founded upon
motives, which though they could not properly be denominated
corrupt, might yet be of a nature to mislead them from their duty.
Another and no less important desideratum was, that the Executive
should be independent for his continuance in the office on all but the
people themselves. He might otherwise be tempted to sacrifice his duty
to his complaisance for those whose favor was necessary to the
duration of his official consequence. This advantage will also be
secured, by making his re-election to depend on a special body of
representatives, deputed by the society for the single purpose of
making the important choice.
All these advantages will happily combine in the plan devised by the
convention; which is, that the people of each State shall choose a
number of persons as electors, equal to the number of senators and
representatives of such State in the national government, who shall
assemble within the State, and vote for some fit person as
President. Their votes, thus given, are to be transmitted to the
seat of the national government, and the person who may happen to have
a majority of the whole number of votes will be the President. But
as a majority of the votes might not always happen to center in one
man, and as it might be unsafe to permit less than a majority to be
conclusive, it is provided that, in such a contingency, the House of
Representatives shall select out of the candidates who shall have
the five highest number of votes, the man who in their opinion may
be best qualified for the office.
The process of election affords a moral certainty, that the office
of President will never fall to the lot of any man who is not in an
eminent degree endowed with the requisite qualifications. Talents
for low intrigue, and the little arts of popularity, may alone suffice
to elevate a man to the first honors in a single State; but it will
require other talents, and a different kind of merit, to establish him
in the esteem and confidence of the whole Union, or of so considerable
a portion of it as would be necessary to make him a successful
candidate for the distinguished office of President of the United
States. It will not be too strong to say, that there will be a
constant probability of seeing the station filled by characters
preeminent for ability and virtue. And this will be thought no
inconsiderable recommendation of the Constitution, by those who are
able to estimate the share which the executive in every government
must necessarily have in its good or ill administration. Though we
cannot acquiesce in the political heresy of the poet who says:
-
"For forms of government let fools contest-
That which is best administered is best,"-
-
yet we may safely pronounce, that the true test of a good government
is its aptitude and tendency to produce a good administration.
The Vice-President is to be chosen in the same manner with the
President; with this difference, that the Senate is to do, in
respect to the former, what is to be done by the House of
Representatives, in respect to the latter.
The appointment of an extraordinary person, as Vice-President, has
been objected to as superfluous, if not mischievous. It has been
alleged, that it would have been preferable to have authorized the
Senate to elect out of their own body an officer answering that
description. But two considerations seem to justify the ideas of the
convention in this respect. One is, that to secure at all times the
possibility of a definite resolution of the body, it is necessary that
the President should have only a casting vote. And to take the senator
of any State from his seat as senator, to place him in that of
President of the Senate, would be to exchange, in regard to the
State from which he came, a constant for a contingent vote. The
other consideration is, that as the Vice-President may occasionally
become a substitute for the President, in the supreme executive
magistracy, all the reasons which recommend the mode of election
prescribed for the one, apply with great if not with equal force to
the manner of appointing the other. It is remarkable that in this,
as in most other instances, the objection which is made would lie
against the constitution of this State. We have a Lieutenant-Governor,
chosen by the people at large, who presides in the Senate, and is
the constitutional substitute for the Governor, in casualties
similar to those which would authorize the Vice-President to
exercise the authorities and discharge the duties of the President.
- PUBLIUS
NO 69: The Same View Continued, with a Comparison
Between the President and the King of Great Britain
on the One Hand, and the Governor of New York on the Other
by Alexander Hamilton
-
I PROCEED now to trace the real characters of the proposed
Executive, as they are marked out in the plan of the convention.
This will serve to place in a strong light the unfairness of the
representations which have been made in regard to it.
The first thing which strikes our attention is, that the executive
authority, with few exceptions, is to be vested in a single
magistrate. This will scarcely, however, be considered as a point upon
which any comparison can be grounded; for if, in this particular,
there be a resemblance to the king of Great Britain, there is not less
a resemblance to the Grand Seignior, to the khan of Tartary, to the
Man of the Seven Mountains or to the governor of New York.
That magistrate is to be elected for four years; and is to be
re-eligible as often as the people of the United States shall think
him worthy of their confidence. In these circumstances there is a
total dissimilitude between him and a king of Great Britain, who is an
hereditary monarch, possessing the crown as a patrimony descendible to
his heirs forever; but there is a close analogy between him and a
governor of New York, who is elected for three years, and is
re-eligible without limitation or intermission. If we consider how
much less time would be requisite for establishing a dangerous
influence in a single State, than for establishing a like influence
throughout the United States, we must conclude that a duration of four
years for the Chief Magistrate of the Union is a degree of
permanency far less to be dreaded in that office, than a duration of
three years for a corresponding office in a single State.
The President of the United States would be liable to be
impeached, tried, and, upon conviction of treason, bribery, or other
high crimes or misdemeanors, removed from office; and would afterwards
be liable to prosecution and punishment in the ordinary course of law.
The person of the king of Great Britain is sacred and inviolable;
there is no constitutional tribunal to which he is amenable; no
punishment to which he can be subjected without involving the crisis
of a national revolution. In this delicate and important
circumstance of personal responsibility, the President of confederated
America would stand upon no better ground than a governor of New York,
and upon worse ground than the governors of Maryland and Delaware.
The President of the United States is to have power to return a
bill, which shall have passed the two branches of the legislature, for
reconsideration; and the bill so returned is to become a law, if, upon
that reconsideration, it be approved by two thirds of both houses. The
king of Great Britain, on his part, has an absolute negative upon
the acts of the two houses of Parliament. The disuse of that power for
a considerable time past does not affect the reality of its existence;
and is to be ascribed wholly to the crown's having found the means
of substituting influence to authority, or the art of gaining a
majority in one or the other of the two houses, to the necessity of
exerting a prerogative which could seldom be exerted without hazarding
some degree of national agitation. The qualified negative of the
President differs widely from this absolute negative of the British
sovereign; and tallies exactly with the revisionary authority of the
council of revision of this State, of which the governor is a
constituent part. In this respect the power of the President would
exceed that of the governor of New York, because the former would
possess, singly, what the latter shares with the chancellor and
judges; but it would be precisely the same with that of the governor
of Massachusetts, whose constitution, as to this article, seems to
have been the original from which the convention have copied.
The President is to be the "commander-in-chief of the army and
navy of the United States, and of the militia of the several States,
when called into the actual service of the United States. He is to
have power to grant reprieves and pardons for offences against the
United States, except in cases of impeachment; to recommend to the
consideration of Congress such measures as he shall judge necessary
and expedient; to convene, on extraordinary occasions, both houses
of the legislature, or either of them, and, in case of disagreement
between them with respect to the time of adjournment, to adjourn
them to such time as he shall think proper; to take care that the laws
be faithfully executed; and to commission all officers of the United
States." In most of these particulars, the power of the President will
resemble equally that of the king of Great Britain and of the governor
of New York.
The most material points of difference are these:-
First. The President will have only the occasional command of such
part of the militia of the nation as by legislative provision may be
called into the actual service of the Union. The king of Great Britain
and the governor of New York have at all times the entire command of
all the militia within their several jurisdictions. In this article,
therefore, the power of the President would be inferior to that of
either the monarch or the governor.
Secondly. The President is to be commander-in-chief of the army
and navy of the United States. In this respect his authority would
be nominally the same with that of the king of Great Britain, but in
substance much inferior to it. It would amount to nothing more than
the supreme command and direction of the military and naval forces, as
first General and admiral of the Confederacy; while that of the
British king extends to the declaring of war and to the raising and
regulating of fleets and armies,- all which, by the Constitution under
consideration, would appertain to the legislature. *039 The governor
of New York, on the other hand, is by the constitution of the State
vested only with the command of its militia and navy. But the
constitutions of several of the States expressly declare their
governors to be commanders-in-chief, as well of the army as navy;
and it may well be a question, whether those of New Hampshire and
Massachusetts, in particular, do not, in this instance, confer
larger powers upon their respective governors, than could be claimed
by a President of the United States.
Thirdly. The power of the President, in respect to pardons, would
extend to all cases, except those of impeachment. The governor of
New York may pardon in all cases, even in those of impeachment, except
for treason and murder. Is not the power of the governor, in this
article, on a calculation of political consequences, greater than that
of the President? All conspiracies and plots against the government,
which have not been matured into actual treason, may be screened
from punishment of every kind, by the interposition of the prerogative
of pardoning. If a governor of New York, therefore, should be at the
head of any such conspiracy, until the design had been ripened into
actual hostility he could insure his accomplices and adherents an
entire impunity. A President of the Union, on the other hand, though
he may even pardon treason, when prosecuted in the ordinary course
of law, could shelter no offender, in any degree, from the effects
of impeachment and conviction. Would not the prospect of a total
indemnity for all the preliminary steps be a greater temptation to
undertake and persevere in an enterprise against the public liberty,
than the mere prospect of an exemption from death and confiscation, if
the final execution of the design, upon an actual appeal to arms,
should miscarry? Would this last expectation have any influence at
all, when the probability was computed, that the person who was to
afford that exemption might himself be involved in the consequences of
the measure, and might be incapacitated by his agency in it from
affording the desired impunity? The better to judge of this matter, it
will be necessary to recollect, that, by the proposed Constitution,
the offence of treason is limited "to levying war upon the United
States, and adhering to their enemies, giving them aid and comfort";
and that by the laws of New York it is confined within similar bounds.
Fourthly. The President can only adjourn the national legislature in
the single case of disagreement about the time of adjournment. The
British monarch may prorogue or even dissolve the Parliament. The
governor of New York may also prorogue the legislature of this State
for a limited time; a power which, in certain situations, may be
employed to very important purposes.
The President is to have power, with the advice and consent of the
Senate, to make treaties, provided two thirds of the senators
present concur. The king of Great Britain is the sole and absolute
representative of the nation in all foreign transactions. He can of
his own accord make treaties of peace, commerce, alliance, and of
every other description. It has been insinuated, that his authority in
this respect is not conclusive, and that his conventions with
foreign powers are subject to the revision, and stand in need of the
ratification, of Parliament. But I believe this doctrine was never
heard of, until it was broached upon the present occasion. Every
jurist *040 of that kingdom, and every other man acquainted with its
Constitution, knows, as an established fact, that the prerogative of
making treaties exists in the crown in its utmost plenitude; and
that the compacts entered into by the royal authority have the most
complete legal validity and perfection, independent of any other
sanction. The Parliament, it is true, is sometimes seen employing
itself in altering the existing laws to conform them to the
stipulations in a new treaty; and this may have possibly given birth
to the imagination, that its cooperation was necessary to the
obligatory efficacy of the treaty. But this parliamentary
interposition proceeds from a different cause: from the necessity of
adjusting a most artificial and intricate system of revenue and
commercial laws, to the changes made in them by the operation of the
treaty; and of adapting new provisions and precautions to the new
state of things, to keep the machine from running into disorder. In
this respect, therefore, there is no comparison between the intended
power of the President and the actual power of the British
sovereign. The one can perform alone what the other can do only with
the concurrence of a branch of the legislature. It must be admitted,
that, in this instance, the power of the federal Executive would
exceed that of any State Executive. But this arises naturally from the
sovereign power which relates to treaties. If the Confederacy were
to be dissolved, it would become a question whether the Executives
of the several States were not solely invested with that delicate
and important prerogative.
The President is also to be authorized to receive ambassadors and
other public ministers. This, though it has been a rich theme of
declamation, is more a matter of dignity than of authority. It is a
circumstance which will be without consequence in the administration
of the government; and it was far more convenient that it should be
arranged in this manner, than that there should be a necessity of
convening the legislature, or one of its branches, upon every
arrival of a foreign minister, though it were merely to take the place
of a departed predecessor.
The President is to nominate, and, with the advice and consent of
the Senate, to appoint ambassadors and other public ministers,
judges of the Supreme Court, and in general all officers of the United
States established by law, and whose appointments are not otherwise
provided for by the Constitution. The king of Great Britain is
emphatically and truly styled the fountain of honor. He not only
appoints to all offices, but can create offices. He can confer
titles of nobility at pleasure; and has the disposal of an immense
number of church preferments. There is evidently a great inferiority
in the power of the President, in this particular, to that of the
British king; nor is it equal to that of the governor of New York,
if we are to interpret the meaning of the constitution of the State by
the practice which has obtained under it. The power of appointment
is with us lodged in a council, composed of the governor and four
members of the Senate, chosen by the Assembly. The governor claims,
and has frequently exercised, the right of nomination, and is entitled
to a casting vote in the appointment. If he really has the right of
nominating, his authority is in this respect equal to that of the
President, and exceeds it in the article of the casting vote. In the
national government, if the Senate should be divided, no appointment
could be made; in the government of New York, if the council should be
divided, the governor can turn the scale, and confirm his own
nomination. *041 If we compare the publicity which must necessarily
attend the mode of appointment by the President and an entire branch
of the national legislature, with the privacy in the mode of
appointment by the governor of New York, closeted in a secret
apartment with at most four, and frequently with only two persons; and
if we at the same time consider how much more easy it must be to
influence the small number of which a council of appointment consist,
than the considerable number of which the national Senate would
consist, we cannot hesitate to pronounce that the power of the chief
magistrate of this State, in the disposition of offices, must, in
practice, be greatly superior to that of the Chief Magistrate of the
Union.
Hence it appears that, except as to the concurrent authority of
the President in the article of treaties, it would be difficult to
determine whether that magistrate would in the aggregate, possess more
or less power than the Governor of New York. And it appears yet more
unequivocally, that there is no pretence for the parallel which has
been attempted between him and the king of Great Britain. But to
render the contrast in this respect still more striking, it may be
of use to throw the principal circumstances of dissimilitude into a
closer group.
The President of the United States would be an officer elected by
the people for four years; the king of Great Britain is a perpetual
and hereditary prince. The one would be amenable to personal
punishment and disgrace; the person of the other is sacred and
inviolable. The one would have a qualified negative upon the acts of
the legislative body; the other has an absolute negative. The one
would have a right to command the military and naval forces of the
nation; the other, in addition to this right, possesses that of
declaring war, and of raising and regulating fleets and armies by
his own authority. The one would have a concurrent power with a branch
of the legislature in the formation of treaties; the other is the sole
possessor of the power of making treaties. The one would have a like
concurrent authority in appointing to offices; the other is the sole
author of all appointments. The one can confer no privileges whatever:
the other can make denizens of aliens, noblemen of commoners: can
erect corporations with all the rights incident to corporate bodies.
The one can prescribe no rules concerning the commerce or currency
of the nation; the other is in several respects the arbiter of
commerce, and in this capacity can establish markets and fairs, can
regulate weights and measures, can lay embargoes for a limited time,
can coin money, can authorize or prohibit the circulation of foreign
coin. The one has no particle of spiritual jurisdiction; the other
is the supreme head and governor of the national church! What answer
shall we give to those who would persuade us that things so unlike
resemble each other? The same that ought to be given to those who tell
us that a government, the whole power of which would be in the hands
of the elective and periodical servants of the people, is an
aristocracy, a monarchy, and a despotism.
- PUBLIUS
NO 70: The Same View Continued in Relation to the Unity
of the Executive, with an Examination
of the Project of an Executive Council
by Alexander Hamilton
-
THERE is an idea, which is not without its advocates, that a
vigorous Executive is inconsistent with the genius of republican
government. The enlightened well-wishers to this species of government
must at least hope that the supposition is destitute of foundation;
since they can never admit its truth, without at the same time
admitting the condemnation of their own principles. Energy in the
Executive is a leading character in the definition of good government.
It is essential to the protection of the community against foreign
attacks; it is not less essential to the steady administration of
the laws; to the protection of property against those irregular and
high-handed combinations which sometimes interrupt the ordinary course
of justice; to the security of liberty against the enterprises and
assaults of ambition, of faction, and of anarchy. Every man the
least conversant in Roman story, knows how often that republic was
obliged to take refuge in the absolute power of a single man, under
the formidable title of Dictator, as well against the intrigues of
ambitious individuals who aspired to the tyranny, and the seditions of
whole classes of the community whose conduct threatened the
existence of all government, as against the invasions of external
enemies who menaced the conquest and destruction of Rome.
There can be no need, however, to multiply arguments for examples on
this head. A feeble Executive implies a feeble execution of the
government. A feeble execution is but another phrase for a bad
execution; and a government ill executed, whatever it may be in
theory, must be, in practice, a bad government.
Taking it for granted, therefore, that all men of sense will agree
in the necessity of an energetic Executive, it will only remain to
inquire, what are the ingredients which constitute this energy? How
far can they be combined with those other ingredients which constitute
safety in the republican sense? And how far does this combination
characterize the plan which has been reported by the convention?
The ingredients which constitute energy in the Executive are, first,
unity; secondly, duration; thirdly, an adequate provision for its
support; fourthly, competent powers.
The ingredients, which constitute safety in the republican sense
are, first a due dependence on the people; secondly, a due
responsibility.
Those politicians and statesmen who have been the most celebrated
for the soundness of their principles and for the justice of their
views, have declared in favor of a single Executive and a numerous
legislature. They have, with great propriety, considered energy as the
most necessary qualification of the former, and have regarded this
as most applicable to power in a single hand; while they have, with
equal propriety, considered the latter as best adapted to deliberation
and wisdom, and best calculated to conciliate the confidence of the
people and to secure their privileges and interests.
That unity is conducive to energy will not be disputed. Decision,
activity, secrecy, and despatch will generally characterize the
proceedings of one man in a much more eminent degree than the
proceedings of any great number; and in proportion as the number is
increased, these qualities will be diminished.
This unity may be destroyed in two ways: either by vesting the power
in two or more magistrates of equal dignity and authority; or by
vesting it ostensibly in one man, subject, in whole or in part, to the
control and cooperation of others, in the capacity of counsellors to
him. Of the first, the two Consuls of Rome may serve as an example; of
the last, we shall find examples in the constitutions of several of
the States. New York and New Jersey, if I recollect right, are the
only States which have intrusted the executive authority wholly to
single men. *042 Both these methods of destroying the unity of the
Executive have their partisans; but the votaries of an executive
council are the most numerous. They are both liable, if not to
equal, to similar objections, and may in most lights be examined in
conjunction.
The experience of other nations will afford little instruction on
this head. As far, however, as it teaches any thing, it teaches us not
to be enamored of plurality in the Executive. We have seen that the
Achaeans, on an experiment of two Praetors, were induced to abolish
one. The Roman history records many instances of mischiefs to the
republic from the dissensions between the Consuls, and between the
military Tribunes, who were at times substituted for the Consuls.
But it gives us no specimens of any peculiar advantages derived to the
state from the circumstance of the plurality of those magistrates.
That the dissensions between them were not more frequent or more
fatal, is matter of astonishment, until we advert to the singular
position in which the republic was almost continually placed, and to
the prudent policy pointed out by the circumstances of the state,
and pursued by the Consuls, of making a division of the government
between them. The patricians engaged in a perpetual struggle with
the plebeians for the preservation of their ancient authorities and
dignities; the Consuls, who were generally chosen out of the former
body, were commonly united by the personal interest they had in the
defence of the privileges of their order. In addition to this motive
of union, after the arms of the republic had considerably expanded the
boundary of its empire, it became an established custom with the
Consuls to divide the administration between themselves by lot- one of
them remaining at Rome to govern the city and its environs, the
other taking command in the more distant provinces. This expedient
must, no doubt, have had great influence in preventing those
collisions and rivalships which might otherwise have embroiled the
peace of the republic.
But quitting the dim light of historical research, attaching
ourselves purely to the dictates of reason and good sense, we shall
discover much greater cause to reject than to approve the idea of
plurality in the Executive, under any modification whatever.
Wherever two or more persons are engaged in any common enterprise or
pursuit, there is always danger of difference of opinion. If it be a
public trust or office, in which they are clothed with equal dignity
and authority, there is peculiar danger of personal emulation and even
animosity. From either, and especially from all these causes, the most
bitter dissensions are apt to spring. Whenever these happen, they
lessen the respectability, weaken the authority, and distract the
plans and operations of those whom they divide. If they should
unfortunately assail the supreme executive magistracy of a country,
consisting of a plurality of persons, they might impede or frustrate
the most important measures of the government, in the most critical
emergencies of the state. And what is still worse, they might split
the community into the most violent and irreconcilable factions,
adhering differently to the different individuals who composed the
magistracy.
Men often oppose a thing, merely because they have had no agency
in planning it, or because it may have been planned by those whom they
dislike. But if they have been consulted, and have happened to
disapprove, opposition then becomes, in their estimation, an
indispensable duty of self-love. They seem to think themselves bound
in honor, and by all the motives of personal infallibility, to
defeat the success of what has been resolved upon contrary to their
sentiments. Men of upright, benevolent tempers have too many
opportunities of remarking, with horror, to what desperate lengths
this disposition is sometimes carried, and how often the great
interests of society are sacrificed to the vanity, to the conceit, and
to the obstinacy of individuals, who have credit enough to make
their passions and their caprices interesting to mankind. Perhaps
the question now before the public may, in its consequences, afford
melancholy proofs of the effects of this despicable frailty, or rather
detestable vice, in the human character.
Upon the principles of a free government, inconveniences from the
source just mentioned must necessarily be submitted to in the
formation of the legislature; but it is unnecessary, and therefore
unwise, to introduce them into the constitution of the Executive. It
is here too that they may be most pernicious. In the legislature,
promptitude of decision is oftener an evil than a benefit. The
differences of opinion, and the jarrings of parties in that department
of the government, though they may sometimes obstruct salutary
plans, yet often promote deliberation and circumspection, and serve to
check excesses in the majority. When a resolution too is once taken,
the opposition must be at an end. That resolution is a law, and
resistance to it punishable. But no favorable circumstances palliate
or atone for the disadvantages of dissension in the executive
department. Here, they are pure and unmixed. There is no point at
which they cease to operate. They serve to embarrass and weaken the
execution of the plan or measure to which they relate, from the
first step to the final conclusion of it. They constantly counteract
those qualities in the Executive which are the most necessary
ingredients in its composition,- vigor and expedition, and this
without any counterbalancing good. In the conduct of war, in which the
energy of the Executive is the bulwark of the national security, every
thing would be to be apprehended from its plurality.
It must be confessed that these observations apply with principal
weight to the first case supposed- that is, to a plurality of
magistrates of equal dignity and authority, a scheme, the advocates
for which are not likely to form a numerous sect; but they apply,
though not with equal, yet with considerable weight to the project
of a council, whose concurrence is made constitutionally necessary
to the operations of the ostensible Executive. An artful cabal in that
council would be able to distract and to enervate the whole system
of administration. If no such cabal should exist, the mere diversity
of views and opinions would alone be sufficient to tincture the
exercise of the executive authority with a spirit of habitual
feebleness and dilatoriness.
But one of the weightiest objections to a plurality in the
Executive, and which lies as much against the last as the first
plan, is, that it tends to conceal faults and destroy
responsibility. Responsibility is of two kinds- to censure and to
punishment. The first is the more important of the two, especially
in an elective office. Man, in public trust, will much oftener act
in such a manner as to render him unworthy of being any longer
trusted, than in such a manner as to make him obnoxious to legal
punishment. But the multiplication of the Executive adds to the
difficulty of detection in either case. It often becomes impossible,
amidst mutual accusations, to determine on whom the blame or the
punishment of a pernicious measure, or series of pernicious
measures, ought really to fall. It is shifted from one to another with
so much dexterity, and under such plausible appearances, that the
public opinion is left in suspense about the real author. The
circumstances which may have led to any national miscarriage of
misfortune are sometimes so complicated that, where there are a number
of actors who may have had different degrees and kinds of agency,
though we may clearly see upon the whole that there has been
mismanagement, yet it may be impracticable to pronounce to whose
account the evil which may have been incurred is truly chargeable.
"I was overruled by my council. The council were so divided in their
opinions that it was impossible to obtain any better resolution on the
point." These and similar pretexts are constantly at hand, whether
true or false. And who is there that will either take the trouble or
incur the odium of a strict scrutiny into the secret springs of the
transaction? Should there be found a citizen zealous enough to
undertake the unpromising task, if there happen to be collusion
between the parties concerned, how easy it is to clothe the
circumstances with so much ambiguity, as to render it uncertain what
was the precise conduct of any of those parties?
In the single instance in which the governor of this State is
coupled with a council- that is, in the appointment to offices, we
have seen the mischiefs of it in the view now under consideration.
Scandalous appointments to important offices have been made. Some
cases, indeed, have been so flagrant that ALL PARTIES have agreed in
the impropriety of the thing. When inquiry has been made, the blame
has been laid by the governor on the members of the council, who, on
their part, have charged it upon his nomination; while the people
remain altogether at a loss to determine, by whose influence their
interests have been committed to hands so unqualified and so
manifestly improper. In tenderness to individuals, I forbear to
descend to particulars.
It is evident from these considerations, that the plurality of the
Executive tends to deprive the people of the two greatest securities
they can have for the faithful exercise of any delegated power, first,
the restraints of public opinion, which lose their efficacy, as well
on account of the division of the censure attendant on bad measures
among a number, as on account of the uncertainty on whom it ought to
fall; and, secondly, the opportunity of discovering with facility
and clearness the misconduct of the persons they trust, in order,
either to their removal from office, or to their actual punishment
in cases which admit of it.
In England, the king is a perpetual magistrate; and it is a maxim
which has obtained for the sake of the public peace, that he is
unaccountable for his administration, and his person sacred.
Nothing, therefore, can be wiser in that kingdom, than to annex to the
king a constitutional council, who may be responsible to the nation
for the advice they give. Without this, there would be no
responsibility whatever in the executive department- an idea
inadmissible in a free government. But even there the king is not
bound by the resolutions of his council, though they are answerable
for the advice they give. He is the absolute master of his own conduct
in the exercise of his office, and may observe or disregard the
counsel given to him at his sole discretion.
But in a republic, where every magistrate ought to be personally
responsible for his behavior in office, the reason which in the
British Constitution dictates the propriety of a council, not only
ceases to apply, but turns against the institution. In the monarchy of
Great Britain, it furnishes a substitute for the prohibited
responsibility of the chief magistrate, which serves in some degree as
a hostage to the national justice for his good behavior. In the
American republic, it would serve to destroy, or would greatly
diminish, the intended and necessary responsibility of the Chief
Magistrate himself.
The idea of a council to the Executive, which has so generally
obtained in the State constitutions, has been derived from that
maxim of republican jealousy which considers power as safer in the
hands of a number of men than of a single man. If the maxim should
be admitted to be applicable to the case, I should contend that the
advantage on that side would not counterbalance the numerous
disadvantages on the opposite side. But I do not think the rule at all
applicable to the executive power. I clearly concur in opinion, in
this particular, with a writer whom the celebrated Junius pronounces
to be "deep, solid, and ingenious," that "the executive power is
more easily confined when it is ONE"; *043 that it is far more safe
there should be a single object for the jealousy and watchfulness of
the people; and, in a word, that all multiplication of the Executive
is rather dangerous than friendly to liberty.
A little consideration will satisfy us, that the species of security
sought for in the multiplication of the Executive, is unattainable.
Numbers must be so great as to render combination difficult, or they
are rather a source of danger than of security. The united credit
and influence of several individuals must be more formidable to
liberty, than the credit and influence of either of them separately.
When power, therefore, is placed in the hands of so small a number
of men, as to admit of their interests and views being easily combined
in a common enterprise, by an artful leader, it becomes more liable to
abuse, and more dangerous when abused, than if it be lodged in the
hands of one man; who, from the very circumstance of his being
alone, will be more narrowly watched and more readily suspected, and
who cannot unite so great a mass of influence as when he is associated
with others. The Decemvirs of Rome, whose name denotes their
number, *044 were more to be dreaded in their usurpation than any ONE
of them would have been. No person would think of proposing an
Executive much more numerous than that body; from six to a dozen
have been suggested for the number of the council. The extreme of
these numbers, is not too great for an easy combination; and from such
a combination America would have more to fear, than from the
ambition of any single individual. A council to a magistrate, who is
himself responsible for what he does, are generally nothing better
than a clog upon his good intentions, are often the instruments and
accomplices of his bad, and are almost always a cloak to his faults.
I forbear to dwell upon the subject of expense; though it be evident
that if the council should be numerous enough to answer the
principal end aimed at by the institution, the salaries of the
members, who must be drawn from their homes to reside at the seat of
government, would form an item in the catalogue of public expenditures
too serious to be incurred for an object of equivocal utility. I
will only add that, prior to the appearance of the Constitution, I
rarely met with an intelligent man from any of the States, who did not
admit, as the result of experience, that the UNITY of the executive of
this State was one of the best of the distinguishing features of our
constitution.
- PUBLIUS
NO 71: The Same View Continued in Regard
to the Duration of the Office
by Alexander Hamilton
-
DURATION in office has been mentioned as the second requisite to the
energy of the Executive authority. This has relation to two objects:
to the personal firmness of the executive magistrate, in the
employment of his constitutional powers; and to the stability of the
system of administration which may have been adopted under his
auspices. With regard to the first, it must be evident, that the
longer the duration in office, the greater will be the probability
of obtaining so important an advantage. It is a general principle of
human nature, that a man will be interested in whatever he
possesses, in proportion to the firmness or precariousness of the
tenure by which he holds it; will be less attached to what he holds by
a momentary or uncertain title, than to what he enjoys by a durable or
certain title; and, of course, will be willing to risk more for the
sake of the one, than for the sake of the other. This remark is not
less applicable to a political privilege, or honor, or trust, than
to any article of ordinary property. The inference from it is, that
a man acting in the capacity of chief magistrate, under a
consciousness that in a very short time he must lay down his office,
will be apt to feel himself too little interested in it to hazard
any material censure or perplexity, from the independent exertion of
his powers, or from encountering the ill-humors, however transient,
which may happen to prevail, either in a considerable part of the
society itself, or even in a predominant faction in the legislative
body. If the case should only be, that he might lay it down, unless
continued by a new choice, and if he should be desirous of being
continued, his wishes, conspiring with his fears, would tend still
more powerfully to corrupt his integrity, or debase his fortitude.
In either case, feebleness and irresolution must be the
characteristics of the station.
There are some who would be inclined to regard the servile pliancy
of the Executive to a prevailing current, either in the community or
in the legislature, as its best recommendation. But such men entertain
very crude notions, as well of the purposes for which government was
instituted, as of the true means by which the public happiness may
be promoted. The republican principle demands that the deliberate
sense of the community should govern the conduct of those to whom they
intrust the management of their affairs; but it does not require an
unqualified complaisance to every sudden breeze of passion, or to
every transient impulse which the people may receive from the arts
of men, who flatter their prejudices to betray their interests. It
is a just observation, that the people commonly intend the PUBLIC
GOOD. This often applies to their very errors. But their good sense
would despise the adulator who should pretend that they always
reason right about the means of promoting it. They know from
experience that they sometimes err; and the wonder is that they so
seldom err as they do, beset, as they continually are, by the wiles of
parasites and sycophants, by the snares of the ambitious, the
avaricious, the desperate, by the artifices of men who possess their
confidence more than they deserve it, and of those who seek to possess
rather than to deserve it. When occasions present themselves, in which
the interests of the people are at variance with their inclinations,
it is the duty of the persons whom they have appointed to be the
guardians of those interests, to withstand the temporary delusion,
in order to give them time and opportunity for more cool and sedate
reflection. Instances might be cited in which a conduct of this kind
has saved the people from very fatal consequences of their own
mistakes, and has procured lasting monuments of their gratitude to the
men who had courage and magnanimity enough to serve them at the
peril of their displeasure.
But however inclined we might be to insist upon an unbounded
complaisance in the Executive to the inclinations of the people, we
can with no propriety contend for a like complaisance to the humors of
the legislature. The latter may sometimes stand in opposition to the
former, and at other times the people may be entirely neutral. In
either supposition, it is certainly desirable that the Executive
should be in a situation to dare to act his own opinion with vigor and
decision.
The same rule which teaches the propriety of a partition between the
various branches of power, teaches us likewise that this partition
ought to be so contrived as to render the one independent of the
other. To what purpose separate the executive or the judiciary from
the legislative, if both the executive and the judiciary are so
constituted as to be at the absolute devotion of the legislative? Such
a separation must be merely nominal, and incapable of producing the
ends for which it was established. It is one thing to be subordinate
to the laws, and another to be dependent on the legislative body.
The first comports with, the last violates, the fundamental principles
of good government; and, whatever may be the forms of the
Constitution, unites all power in the same hands. The tendency of
the legislative authority to absorb every other, has been fully
displayed and illustrated by examples in some preceding numbers. In
governments purely republican, this tendency is almost irresistible.
The representatives of the people, in a popular assembly, seem
sometimes to fancy that they are the people themselves, and betray
strong symptoms of impatience and disgust at the least sign of
opposition from any other quarter; as if the exercise of its rights,
by either the executive or judiciary, were a breach of their privilege
and an outrage to their dignity. They often appear disposed to exert
an imperious control over the other departments; and as they
commonly have the people on their side, they always act with such
momentum as to make it very difficult for the other members of the
government to maintain the balance of the Constitution.
It may perhaps be asked, how the shortness of the duration in office
can affect the independence of the Executive on the legislature,
unless the one were possessed of the power of appointing or displacing
the other. One answer to this inquiry may be drawn from the
principle already remarked- that is, from the slender interest a man
is apt to take in a short-lived advantage, and the little inducement
it affords him to expose himself, on account of it, to any
considerable inconvenience or hazard. Another answer, perhaps more
obvious, though not more conclusive, will result from the
consideration of the influence of the legislative body over the
people; which might be employed to prevent the re-election of a man
who, by an upright resistance to any sinister project of that body,
should have made himself obnoxious to its resentment.
It may be asked also, whether a duration of four years would
answer the end proposed; and if it would not, whether a less period,
which would at least be recommended by greater security against
ambitious designs, would not, for that reason, be preferable to a
longer period, which was at the same time, too short for the purpose
of inspiring the desired firmness and independence of the magistrate.
It cannot be affirmed, that a duration of four years, or any other
limited duration, would completely answer the end proposed; but it
would contribute towards it in a degree which would have a material
influence upon the spirit and character of the government. Between the
commencement and termination of such a period, there would always be a
considerable interval, in which the prospect of annihilation would
be sufficiently remote, not to have an improper effect upon the
conduct of a man imbued with a tolerable portion of fortitude; and
in which he might reasonably promise himself, that there would be time
enough before it arrived, to make the community sensible of the
propriety of the measures he might incline to pursue. Though it be
probable that, as he approached the moment when the public were, by
a new election, to signify their sense of his conduct, his confidence,
and with it his firmness, would decline; yet both the one and the
other would derive support from the opportunities which his previous
continuance in the station had afforded him, of establishing himself
in the esteem and good-will of his constituents. He might, then,
hazard with safety, in proportion to the proofs he had given of his
wisdom and integrity, and to the title he had acquired to the
respect and attachment of his fellow-citizens. As, on the one hand,
a duration of four years will contribute to the firmness of the
Executive in a sufficient degree to render it a very valuable
ingredient in the composition; so, on the other, it is not enough to
justify any alarm for the public liberty. If a British House of
Commons, from the most feeble beginnings, from the mere power of
assenting or disagreeing to the imposition of a new tax, have, by
rapid strides, reduced the prerogatives of the crown and the
privileges of the nobility within the limits they conceived to be
compatible with the principles of a free government, while they raised
themselves to the rank and consequence of co-equal branch of the
legislature; if they have been able, in one instance, to abolish
both the royalty and the aristocracy, and to overturn all the
ancient establishments, as well in the Church as State; if they have
been able, on a recent occasion, to make the monarch tremble at the
prospect of an innovation *045 attempted by them, what would be to be
feared from an elective magistrate of four years' duration, with the
confined authorities of a President of the United States? What, but
that he might be unequal to the task which the Constitution assigns
him? I shall only add, that if his duration be such as to leave a
doubt of his firmness, that doubt is inconsistent with a jealousy of
his encroachments.
- PUBLIUS
NO 72: The Same View Continued in Regard
to the Re-eligibility of the President
by Alexander Hamilton
-
THE administration of government, in its largest sense, comprehends
all the operations of the body politic, whether legislative,
executive, or judiciary; but in its most usual and perhaps in its
most precise signification, it is limited to executive details, and
falls peculiarly within the province of the executive department. The
actual conduct of foreign negotiations, the preparatory plans of
finance, the application and disbursement of the public moneys in
conformity to the general appropriations of the legislature, the
arrangement of the army and navy, the direction of the operations of
war,- these, and other matters of a like nature, constitute what seems
to be most properly understood by the administration of government.
The persons, therefore, to whose immediate management these different
matters are committed, ought to be considered as the assistants or
deputies of the chief magistrate, and on this account, they ought to
derive their offices from his appointment, at least from his
nomination, and ought to be subject to his superintendence. This view
of the subject will at once suggest to us the intimate connection
between the duration of the executive magistrate in office and the
stability of the system of administration. To reverse and undo what
has been done by a predecessor, is very often considered by a
successor as the best proof he can give of his own capacity and
desert; and in addition to this propensity, where the alteration has
been the result of public choice, the person substituted is warranted
in supposing that the dismission of his predecessor has proceeded from
a dislike to his measures; and that the less he resembles him, the
more he will recommend himself to the favor of his constituents.
These considerations, and the influence of personal confidences and
attachments, would be likely to induce every new President to promote
a change of men to fill the subordinate stations; and these causes
together could not fail to occasion a disgraceful and ruinous
mutability in the administration of the government.
With a positive duration of considerable extent, I connect the
circumstance of re-eligibility. The first is necessary to give to
the officer himself the inclination and the resolution to act his part
well, and to the community time and leisure to observe the tendency of
his measures, and thence to form an experimental estimate of their
merits. The last is necessary to enable the people, when they see
reason to approve of his conduct, to continue him in his station, in
order to prolong the utility of his talents and virtues, and to secure
to the government the advantage of permanency in a wise system of
administration.
Nothing appears more plausible at first sight, nor more
ill-founded upon close inspection than a scheme which in relation to
the present point has had some respectable advocates,- I mean that
of continuing the chief magistrate in office for a certain time, and
then excluding him from it, either for a limited period or forever
after. This exclusion, whether temporary or perpetual, would have
nearly the same effects and these effects would be for the most part
rather pernicious than salutary.
One ill effect of the exclusion would be a diminution of the
inducements to good behavior. There are few men who would not feel
much less zeal in the discharge of a duty, when they were conscious
that the advantages of the station with which it was connected must be
relinquished at a determinate period, than when they were permitted to
entertain a hope of obtaining, by meriting, a continuance of them.
This position will not be disputed so long as it is admitted that
the desire of reward is one of the strongest incentives of human
conduct; or that the best security for the fidelity of mankind is to
make their interest coincide with their duty. Even the love of fame,
the ruling passion of the noblest minds, which would prompt a man to
plan and undertake extensive and arduous enterprises for the public
benefit, requiring considerable time to mature and perfect them, if he
could flatter himself with the prospect of being allowed to finish
what he had begun, would, on the contrary, deter him from the
undertaking, when he foresaw that he must quit the scene before he
could accomplish the work, and must commit that, together with his own
reputation, to hands which might be unequal or unfriendly to the task.
The most to be expected from the generality of men, in such a
situation, is the negative merit of not doing harm, instead of the
positive merit of doing good.
Another ill effect of the exclusion would be the temptation to
sordid views, to peculation, and, in some instances, to usurpation. An
avaricious man, who might happen to fill the office, looking forward
to a time when he must at all events yield up the emoluments he
enjoyed, would feel a propensity, not easy to be resisted by such a
man, to make the best use of the opportunity he enjoyed while it
lasted, and might not scruple to have recourse to the most corrupt
expedients to make the harvest as abundant as it was transitory;
though the same man, probably, with a different prospect before him,
might content himself with the regular perquisites of his situation,
and might even be unwilling to risk the consequences of an abuse of
his opportunities. His avarice might be a guard upon his avarice.
Add to this that the same man might be vain or ambitious, as well as
avaricious. And if he could expect to prolong his honors by his good
conduct, he might hesitate to sacrifice his appetite for them to his
appetite for gain. But with the prospect before him of approaching
an inevitable annihilation, his avarice would be likely to get the
victory over his caution, his vanity, or his ambition.
An ambitious man, too, when he found himself seated on the summit of
his country's honors, when he looked forward to the time at which he
must descend from the exalted eminence for ever, and reflected that no
exertion of merit on his part could save him from the unwelcome
reverse; such a man, in such a situation, would be much more violently
tempted to embrace a favorable conjuncture for attempting the
prolongation of his power, at every personal hazard, than if he had
the probability of answering the same end by doing his duty.
Would it promote the peace of the community, or the stability of the
government to have half a dozen men who had had credit enough to be
raised to the seat of the supreme magistracy, wandering among the
people like discontented ghosts, and sighing for a place which they
were destined never more to possess?
A third ill effect of the exclusion would be, the depriving the
community of the advantage of the experience gained by the chief
magistrate in the exercise of his office. That experience is the
parent of wisdom, is an adage the truth of which is recognized by
the wisest as well as the simplest of mankind. What more desirable
or more essential than this quality in the governors of nations? Where
more desirable or more essential that in the first magistrate of a
nation? Can it be wise to put this desirable and essential quality
under the ban of the Constitution, and to declare that the moment it
is acquired, its possessor shall be compelled to abandon the station
in which it was acquired, and to which it is adapted? This,
nevertheless, is the precise import of all those regulations which
exclude men from serving their country, by the choice of their
fellow-citizens, after they have by a course of service fitted
themselves for doing it with a greater degree of utility.
A fourth ill effect of the exclusion would be the banishing men from
stations in which, in certain emergencies of the state, their presence
might be of the greatest moment to the public interest or safety.
There is no nation which has not, at one period or another,
experienced an absolute necessity of the services of particular men in
particular situations; perhaps it would not be too strong to say, to
the preservation of its political existence. How unwise, therefore,
must be every such self-denying ordinance as serves to prohibit a
nation from making use its own citizens in the manner best suited to
its exigencies and circumstances! Without supposing the personal
essentiality of the man, it is evident that a change of the chief
magistrate, at the breaking out of a war, or at any similar crisis,
for another, even of equal merit, would at all times be detrimental to
the community, inasmuch as it would substitute inexperience to
experience, and would tend to unhinge and set afloat the already
settled train of the administration.
A fifth ill effect of the exclusion would be, that it would
operate as a constitutional interdiction of stability in the
administration. By necessitating a change of men, in the first
office of the nation, it would necessitate a mutability of measures.
It is not generally to be expected, that men will vary and measures
remain uniform. The contrary is the usual course of things. And we
need not be apprehensive that there will be too much stability,
while there is even the option of changing; nor need we desire to
prohibit the people from continuing their confidence where they
think it may be safely placed, and where, by constancy on their
part, they may obviate the fatal inconveniences of fluctuating
councils and a variable policy.
These are some of the disadvantages which would flow from the
principle of exclusion. They apply most forcibly to the scheme of a
perpetual exclusion; but when we consider that even a partial
exclusion would always render the readmission of the person a remote
and precarious object, the observations which have been made will
apply nearly as fully to one case as to the other.
What are the advantages promised to counterbalance these
disadvantages? They are represented to be: 1st, greater independence
in the magistrate; 2nd, greater security to the people. Unless the
exclusion be perpetual, there will be no pretence to infer the first
advantage. But even in that case, may he have no object beyond his
present station, to which he may sacrifice his independence? May he
have no connections, no friends, for whom he may sacrifice it? May
he not be less willing, by a firm conduct, to make personal enemies,
when he acts under the impression that a time is fast approaching,
on the arrival of which he not only MAY, but MUST, be exposed to their
resentments, upon an equal, perhaps upon an inferior, footing? It is
not an easy point to determine whether his independence would be
most promoted or impaired by such an arrangement.
As to the second supposed advantage, there is still great reason
to entertain doubts concerning it. If the exclusion were to be
perpetual, a man of irregular ambition, of whom alone there could be
reason in any case to entertain apprehension, would, with infinite
reluctance, yield to the necessity of taking his leave forever of a
post in which his passion for power and preeminence had acquired the
force of habit. And if he had been fortunate or adroit enough to
conciliate the good-will of the people, he might induce them to
consider as a very odious and unjustifiable restraint upon themselves,
a provision which was calculated to debar them of the right of
giving a fresh proof of their attachment to a favorite. There may be
conceived circumstances in which this disgust of the people, seconding
the thwarted ambition of such a favorite, might occasion greater
danger to liberty, than could ever reasonably be dreaded from the
possibility of perpetuation in office, by the voluntary suffrages of
the community, exercising a constitutional privilege.
There is an excess of refinement in the idea of disabling the people
to continue in office men who had entitled themselves, in their
opinion, to approbation and confidence; the advantages of which are at
best speculative and equivocal, and are overbalanced by
disadvantages far more certain and decisive.
- PUBLIUS
NO 73: The Same View Continued in Relation to the Provision
Concerning Support and the Power of the Negative
by Alexander Hamilton
-
THE third ingredient towards constituting the vigor of the executive
authority, is an adequate provision for its support. It is evident
that, without proper attention to this article, the separation of
the executive from the legislative department would be merely
nominal and nugatory. The legislature, with a discretionary power over
the salary and emoluments of the Chief Magistrate, could render him as
obsequious to their will as they might think proper to make him.
They might, in most cases, either reduce him by famine, or tempt him
by largesses, to surrender at discretion his judgment to their
inclinations. These expressions, taken in all the latitude of the
terms, would no doubt convey more than is intended. There are men
who could neither be distressed nor won into a sacrifice of their
duty; but this stern virtue is the growth of few soils; and in the
main it will be found that a power over a man's support is a power
over his will. If it were necessary to confirm to plain a truth by
facts, examples would not be wanting, even in this country, of the
intimidation or seduction of the Executive by the terrors or
allurements of the pecuniary arrangements of the legislative body.
It is not easy, therefore, to commend too highly the judicious
attention which has been paid to this subject in the proposed
Constitution. It is there provided that "The President of the United
States shall, at stated times, receive for his services a compensation
which shall neither be increased nor diminished during the period
for which he shall have been elected; and he shall not receive
within that period any other emolument from the United States, or
any of them." It is impossible to imagine any provision which would
have been more eligible than this. The legislature, on the appointment
of a President, is once for all to declare what shall be the
compensation for his services during the time for which he shall
have been elected. This done, they will have no power to alter it,
either by increase or diminution, till a new period of service by a
new election commences. They can neither weaken his fortitude by
operating on his necessities, nor corrupt his integrity by appealing
to his avarice. Neither the Union, nor any of its members, will be
at liberty to give, nor will he be at liberty to receive, any other
emolument than that which may have been determined by the first act.
He can, of course, have no pecuniary inducement to renounce or
desert the independence intended for him by the Constitution.
The last of the requisites to energy, which have been enumerated,
are competent powers. Let us proceed to consider those which are
proposed to be vested in the President of the United States.
The first thing that offers itself to our observation, is the
qualified negative of the President upon the acts or resolutions of
the two houses of the legislature; or, in other words, his power of
returning all bills with objections, to have the effect of
preventing their becoming laws, unless they should afterwards be
ratified by two thirds of each of the component members of the
legislative body.
The propensity of the legislative department to intrude upon the
rights, and to absorb the powers, of the other departments, has been
already suggested and repeated; the insufficiency of a mere
parchment delineation of the boundaries of each, has also been
remarked upon; and the necessity of furnishing each with
constitutional arms for its own defence, has been inferred and proved.
From these clear and indubitable principles results the propriety of a
negative, either absolute or qualified, in the Executive, upon the
acts of the legislative branches. Without the one or the other, the
former would be absolutely unable to defend himself against the
depredations of the latter. He might gradually be stripped of his
authorities by successive resolutions, or annihilated by a single
vote. And in the one mode or the other, the legislative and
executive powers might speedily come to be blended in the same
hands. If even no propensity had ever discovered itself in the
legislative body to invade the rights of the Executive, the rules of
just reasoning and theoretic propriety would of themselves teach us,
that the one ought not to be left to the mercy of the other, but ought
to possess a constitutional and effectual power of self-defence.
But the power in question has a further use. It not only serves as a
shield to the Executive, but it furnishes an additional security
against the enaction of improper laws. It establishes a salutary check
upon the legislative body, calculated to guard the community against
the effects of faction, precipitancy, or of any impulse unfriendly
to the public good, which may happen to influence a majority of that
body.
The propriety of a negative has, upon some occasions, been
combated by an observation, that it was not to be presumed a single
man would possess more virtue and wisdom than a number of men; and
that unless this presumption should be entertained, it would be
improper to give the executive magistrate any species of control
over the legislative body.
But this observation, when examined, will appear rather specious
than solid. The propriety of the thing does not turn upon the
supposition of superior wisdom or virtue in the Executive, but upon
the supposition that the legislature will not be infallible; that
the love of power may sometimes betray it into a disposition to
encroach upon the rights of other members of the government; that a
spirit of faction may sometimes pervert its deliberations; that
impressions of the moment may sometimes hurry it into measures which
itself, on maturer reflection, would condemn. The primary inducement
to conferring the power in question upon the Executive is to enable
him to defend himself; the secondary one is to increase the chances in
favor of the community against the passing of bad laws, through haste,
inadvertence, or design. The oftener the measure is brought under
examination, the greater the diversity in the situations of those
who are to examine it, the less must be the danger of those errors
which flow from want of due deliberation, or of those missteps which
proceed from the contagion of some common passion or interest. It is
far less probable, that culpable views of any kind should infect all
the parts of the government at the same moment and in relation to
the same object, than that they should by turns govern and mislead
every one of them.
It may perhaps be said that the power of preventing bad laws
includes that of preventing good ones; and may be used to the one
purpose as well as to the other. But this objection will have little
weight with those who can properly estimate the mischiefs of that
inconstancy and mutability in the laws, which form the greatest
blemish in the character and genius of our governments. They will
consider every institution calculated to restrain the excess of
lawmaking, and to keep things in the same state in which they happen
to be at any given period, as much more likely to do good than harm;
because it is favorable to greater stability in the system of
legislation. The injury which may possibly be done by defeating a
few good laws, will be amply compensated by the advantage of
preventing a number of bad ones.
Nor is this all. The superior weight and influence of the
legislative body in a free government, and the hazard to the Executive
in a trial of strength with that body, afford a satisfactory
security that the negative would generally be employed with great
caution; and there would oftener be room for a charge of timidity than
of rashness in the exercise of it. A king of Great Britain, with all
his train of sovereign attributes, and with all the influence he draws
from a thousand sources, would, at this day, hesitate to put a
negative upon the joint resolutions of the two houses of Parliament.
He would not fail to exert the utmost resources of that influence to
strangle a measure disagreeable to him, in its progress to the throne,
to avoid being reduced to the dilemma of permitting it to take effect,
or of risking the displeasure of the nation by an opposition to the
sense of the legislative body. Nor is it probable that he would
ultimately venture to exert his prerogatives, but in a case of
manifest propriety, or extreme necessity. All well-informed men in
that kingdom will accede to the justness of this remark. A very
considerable period has elapsed since the negative of the crown has
been exercised.
If a magistrate so powerful and so well fortified as a British
monarch, would have scruples about the exercise of the power under
consideration, how much greater caution may be reasonably expected
in a President of the United States, clothed for the short period of
four years with the executive authority of a government wholly and
purely republican?
It is evident that there would be greater danger of his not using
his power when necessary, than of his using it too often, or too much.
An argument, indeed, against it expediency, has been drawn from this
very source. It has been represented, on this account, as a power
odious in appearance, useless in practice. But it will not follow,
that because it might be rarely exercised, it would never be
exercised. In the case for which it is chiefly designed, that of an
immediate attack upon the constitutional rights of the Executive, or
in a case in which the public good was evidently and palpably
sacrificed, a man of tolerable firmness would avail himself of his
constitutional means of defence, and would listen to the admonitions
of duty and responsibility. In the former supposition, his fortitude
would be stimulated by his immediate interest in the power of his
office; in the latter, by the probability of the sanction of his
constituents, who, though they would naturally incline to the
legislative body in a doubtful case, would hardly suffer their
partiality to delude them in a very plain case. I speak now with an
eye to a magistrate possessing only a common share of firmness.
There are men who, under any circumstances, will have the courage to
do their duty at every hazard.
But the convention have pursued a mean in this business, which
will both facilitate the exercise of the power vested in this
respect in the executive magistrate, and make its efficacy to depend
on the sense of a considerable part of the legislative body. Instead
of an absolute negative, it is proposed to give the Executive the
qualified negative already described. This is a power which would be
much more readily exercised than the other. A man who might be
afraid to defeat a law by his single VETO, might not scruple to return
it for reconsideration; subject to being finally rejected only in
the event of more than one third of each house concurring in the
sufficiency of his objections. He would be encouraged by the
reflection, that if his opposition should prevail, it would embark
in it a very respectable proportion of the legislative body, whose
influence would be united with his in supporting the propriety of
his conduct in the public opinion. A direct and categorical negative
has something in the appearance of it more harsh, and more apt to
irritate, than the mere suggestion of argumentative objections to be
approved or disapproved by those to whom they are addressed. In
proportion as it would be less apt to offend, it would be more apt
to be exercised; and for this very reason, it may in practice be found
more effectual. It is to be hoped that it will not often happen that
improper views will govern so large a proportion as two thirds of both
branches of the legislature at the same time; and this, too, in
spite of the counterposing weight of the Executive. It is at any
rate far less probable that this should be the case, than that such
views should taint the resolutions and conduct of a bare majority. A
power of this nature in the Executive, will often have a silent and
unperceived, though forcible, operation. When men, engaged in
unjustifiable pursuits, are aware that obstructions may come from a
quarter which they cannot control, they will often be restrained by
the bare apprehension of opposition, from doing what they would with
eagerness rush into, if so such external impediments were to be
feared.
This qualified negative, as has been elsewhere remarked is in this
State vested in a council, consisting of the governor, with the
chancellor and judges of the Supreme Court, or any two of them. It has
been freely employed upon a variety of occasions, and frequently
with success. And its utility has become so apparent, that persons
who, in compiling the Constitution, were violent opposers of it,
have from experience become its declared admirers. *046
I have in another place remarked, that the convention, in the
formation of this part of their plan, had departed from the model of
the constitution of this State, in favor of that of Massachusetts. Two
strong reasons may be imagined for this preference. One is that the
judges, who are to be the interpreters of the law, might receive an
improper bias, from having given a previous opinion in their
revisionary capacities; the other is that by being often associated
with the Executive, they might be induced to embark too far in the
political views of that magistrate, and thus a dangerous combination
might by degrees be cemented between the executive and judiciary
departments. It is impossible to keep the judges too distinct from
every other avocation than that of expounding the laws. It is
peculiarly dangerous to place them in a situation to be either
corrupted or influenced by the Executive.
- PUBLIUS
NO 74: The Same View Continued in Relation to the Command
of the National Forces and the Power of Pardoning
by Alexander Hamilton
-
THE President of the United States is to be commander-in-chief of
the army and navy of the United States, and of the militia of the
several States when called into the actual service of the United
States." The propriety of this provision is so evident in itself,
and it is, at the same time, so consonant to the precedents of the
State constitutions in general, that little need be said to explain or
enforce it. Even those of them which have, in other respects,
coupled the chief magistrate with a council, have for the most part
concentrated the military authority in him alone. Of all the cares
or concerns of government, the direction of war most peculiarly
demands those qualities which distinguish the exercise of power by a
single hand. The direction of war implies the direction of the
common strength; and the power of directing and employing the common
strength, forms a usual and essential part in the definition of the
executive authority.
"The President may require the opinion, in writing, of the principal
officer in each of the executive departments, upon any subject
relating to the duties of their respective officers." This I
consider as a mere redundancy in the plan, as the right for which it
provides would result of itself from the office.
He is also to be authorized to grant "reprieves and pardons for
offences against the United States, except in cases of impeachment."
Humanity and good policy conspire to dictate, that the benign
prerogative of pardoning should be as little as possible fettered or
embarrassed. The criminal code of every country partakes so much of
necessary severity, that without an easy access to exceptions in favor
of unfortunate guilt, justice would wear a countenance too
sanguinary and cruel. As the sense of responsibility is always
strongest, in proportion as it is undivided, it may be inferred that a
single man would be most ready to attend to the force of those motives
which might plead for a mitigation of the rigor of the law, and
least apt to yield to considerations which were calculated to
shelter a fit object of its vengeance. The reflection that the fate of
a fellow-creature depended on his sole fiat, would naturally inspire
scrupulousness and caution; the dread of being accused of weakness
or connivance, would beget equal circumspection, though of a different
kind. On the other hand, as men generally derive confidence from their
numbers, they might often encourage each other in an act of
obduracy, and might be less sensible to the apprehension of
suspicion or censure for an injudicious or affected clemency. On these
accounts, one man appears to be a more eligible dispenser of the mercy
of government, than a body of men.
The expediency of vesting the power of pardoning in the President
has, if I mistake not, been only contested in relation to the crime of
treason. This, it has been urged, ought to have depended upon the
assent of one, or both, of the branches of the legislative body. I
shall not deny that there are strong reasons to be assigned for
requiring in this particular the concurrence of that body, or of a
part of it. As treason is a crime levelled at the immediate being of
the society, when the laws have once ascertained the guilt of the
offender, there seems a fitness in referring the expediency of an
act of mercy towards him to the judgment of the legislature. And
this ought the rather to be the case, as the supposition of the
connivance of the Chief Magistrate ought not to be entirely
excluded. But there are also strong objections to such a plan. It is
not to be doubted, that a single man of prudence and good sense is
better fitted, in delicate conjunctures, to balance the motives
which may plead for and against the remission of the punishment,
than any numerous body whatever. It deserves particular attention,
that treason will often be connected with seditions which embrace a
large proportion of the community; as lately happened in
Massachusetts. In every such case, we might expect to see the
representation of the people tainted with the same spirit which had
given birth to the offence. And when parties were pretty equally
matched, the secret sympathy of the friends and favorers of the
condemned person, availing itself of the good-nature and weakness of
others, might frequently bestow impunity where the terror of an
example was necessary. On the other hand, when the sedition had
proceeded from causes which had inflamed the resentments of the
major party, they might often be found obstinate and inexorable,
when policy demanded a conduct of forbearance and clemency. But the
principal argument for reposing the power of pardoning in this case to
the Chief Magistrate is this; in seasons of insurrection or rebellion,
there are often critical moments, when a well-timed offer of pardon to
the insurgents or rebels may restore the tranquillity of the common
wealth; and which, if suffered to pass unimproved, it may never be
possible afterwards to recall. The dilatory process of convening the
legislature, or one of its branches, for the purpose of obtaining its
sanction to the measure, would frequently be the occasion of letting
slip the golden opportunity. The loss of a week, a day, an hour, may
sometimes be fatal. If it should be observed, that a discretionary
power, with a view to such contingencies, might be occasionally
conferred upon the President, it may be answered in the first place,
that it is questionable, whether, in a limited Constitution, that
power could be delegated by law; and in the second place, that it
would generally be impolitic before hand to take any step which might
hold out the prospect of impunity. A proceeding of this kind, out of
the usual course, would be likely to be construed into an argument of
timidity or of weakness, and would have a tendency to embolden guilt.
- PUBLIUS
NO 75: The Same View Continued in Relation
to the Power of Making Treaties
by Alexander Hamilton
-
THE President is to have power, "by and with the advice and
consent of the Senate, to make treaties, provided two thirds of the
senators present concur."
Though this provision has been assailed, on different grounds,
with no small degree of vehemence, I scruple not to declare my firm
persuasion, that it is one of the best digested and most
unexceptionable parts of the plan. One ground of objection is the
trite topic of the intermixture of powers: some contending that the
President ought alone to possess the power of making treaties; others,
that it ought to have been exclusively deposited in the Senate.
Another source of objection is derived from the small number of
persons by whom a treaty may be made. Of those who espouse this
objection, a part are of opinion that the House of Representatives
ought to have been associated in the business, while another part seem
to think that nothing more was necessary than to have substituted
two thirds of all the members of the Senate, to two thirds of the
members present. As I flatter myself the observations made in a
preceding number upon this part of the plan must have sufficed to
place it, to a discerning eye, in a very favorable light, I shall here
content myself with offering only some supplementary remarks,
principally with a view to the objections which have been just stated.
With regard to the intermixture of powers, I shall rely upon the
explanations already given in other places, of the true sense of the
rule upon which that objection is founded; and shall take it for
granted, as an inference from them, that the union of the Executive
with the Senate, in the article of treaties, is no infringement of
that rule. I venture to add, that the particular nature of the power
of making treaties indicates a peculiar propriety in that union.
Though several writers on the subject of government place that power
in the class of executive authorities, yet this is evidently an
arbitrary disposition; for if we attend carefully to its operation, it
will be found to partake more of the legislative than of the executive
character, though it does not seem strictly to fall within the
definition of either of them. The essence of the legislative authority
is to enact laws, or, in other words, to prescribe rules for the
regulation of the society; while the execution of the laws, and the
employment of the common strength, either for this purpose or for
the common defence, seem to comprise all the functions of the
executive magistrate. The power of making treaties is, plainly,
neither the one nor the other. It relates neither to the execution
of the subsisting laws, not to the enaction of new ones; and still
less to an exertion of the common strength. Its objects are
CONTRACTS with foreign nations, which have the force of law, but
derive it from the obligations of good faith. They are not rules
prescribed by the sovereign to the subject, but agreements between
sovereign and sovereign. The power in question seems therefore to form
a distinct department, and to belong, properly, neither to the
legislative nor to the executive. The qualities elsewhere detailed
as indispensable in the management of foreign negotiations, point
out the Executive as the most fit agent in those transactions; while
the vast importance of the trust, and the operation of treaties as
laws, plead strongly for the participation of the whole or a portion
of the legislative body in the office of making them.
However proper or safe it may be in governments where the
executive magistrate is an hereditary monarch, to commit to him the
entire power of making treaties, it would be utterly unsafe and
improper to intrust that power to an elective magistrate of four
years' duration. It has been remarked, upon another occasion, and
the remark is unquestionably just, that an hereditary monarch,
though often the oppressor of his people, has personally too much
stake in the government to be in any material danger of being
corrupted by foreign powers. But a man raised from the station of a
private citizen to the rank of chief magistrate, possessed of a
moderate or slender fortune, and looking forward to a period not
very remote when he may probably be obliged to return to the station
from which he was taken, might sometimes be under temptations to
sacrifice his duty to his interest, which it would require superlative
virtue to withstand. An avaricious man might be tempted to betray
the interests of the state to the acquisition of wealth. An
ambitious man might make his own aggrandizement, by the aid of a
foreign power, the price of his treachery to his constituents. The
history of human conduct does not warrant that exalted opinion of
human virtue which would make it wise in a nation to commit
interests of so delicate and momentous a kind, as those which
concern its intercourse with the rest of the world, to the sole
disposal of a magistrate created and circumstanced as would be a
President of the United States.
To have intrusted the power of making treaties to the Senate
alone, would have been to relinquish the benefits of the
constitutional agency of the President in the conduct of foreign
negotiations. It is true that the Senate would, in that case, have the
option of employing him in this capacity, but they would also have the
option of letting it alone, and pique or cabal might induce the latter
rather than the former. Besides this, the ministerial servant of the
Senate could not be expected to enjoy the confidence and respect of
foreign powers in the same degree with the constitutional
representatives of the nation, and, of course, would not be able to
act with an equal degree of weight or efficacy. While the Union would,
from this cause, lose a considerable advantage in the management of
its external concerns, the people would lose the additional security
which would result from the cooperation of the Executive. Though it
would be imprudent to confide in him solely so important a trust,
yet it cannot be doubted that his participation would materially add
to the safety of the society. It must indeed be clear to a
demonstration that the joint possession of the power in question, by
the President and Senate, would afford a greater prospect of security,
than the separate possession of it by either of them. And whoever
has maturely weighed the circumstances which must concur in the
appointment of a President, will be satisfied that the office will
always bid fair to be filled by men of such characters as to render
their concurrence in the formation of treaties peculiarly desirable,
as well on the score of wisdom, as on that of integrity.
The remarks made in a former number, which have been alluded to in
another part of this paper, will apply with conclusive force against
the admission of the House of Representatives to share in the
formation of treaties. The fluctuating and, taking its future increase
into the account, the multitudinous composition of that body, forbid
us to expect in it those qualities which are essential to the proper
execution of such a trust. Accurate and comprehensive knowledge of
foreign politics; a steady and systematic adherence to the same views;
a nice and uniform sensibility to national character; decision,
secrecy, and despatch, are incompatible with the genius of a body so
variable and so numerous. The very complication of the business, by
introducing in a necessity of the concurrence of so many different
bodies, would of itself afford a solid objection. The greater
frequency of the calls upon the House of Representatives, and the
greater length of time which it would often be necessary to keep
them together when convened, to obtain their sanction in the
progressive stages of a treaty, would be a source of so great
inconvenience and expense as alone ought to condemn the project.
The only objection which remains to be canvassed, is that which
would substitute the proportion of two thirds of all the members
composing the senatorial body, to that of two thirds of the members
present. It has been shown, under the second head of our inquiries,
that all provisions which require more than the majority of any body
to its resolutions, have a direct tendency to embarrass the operations
of the government, and an indirect one to subject the sense of the
majority to that of the minority. This consideration seems
sufficient to determine our opinion, that the convention have gone
as far in the endeavor to secure the advantage of numbers in the
formation of treaties as could have been reconciled either with the
activity of the public councils or with a reasonable regard to the
major sense of the community. If two thirds of the whole number of
members had been required, it would, in many cases, from the
non-attendance of a part, amount in practice to a necessity of
unanimity. And the history of every political establishment in which
this principle has prevailed, is a history of impotence, perplexity,
and disorder. Proofs of this position might be adduced from the
examples of the Roman Tribuneship, the Polish Diet, and the
States-General of the Netherlands, did not an example at home render
foreign precedents, unnecessary.
To require a fixed proportion of the whole body would not, in all
probability, contribute to the advantages of a numerous agency, better
than merely to require a proportion of the attending members. The
former, by making a determinate number at all times requisite to a
resolution, diminishes the motives to punctual attendance. The latter,
by making the capacity of the body to depend on a proportion which may
be varied by the absence or presence of a single member, has the
contrary effect. And as, by promoting punctuality, it tends to keep
the body complete, that is great likelihood that its resolutions would
generally be dictated by as great a number in this case as in the
other; while there would be much fewer occasions of delay. It ought
not to be forgotten that, under the existing Confederation, two
members may, and usually do, represent a State; whence it happens that
Congress, who now are solely invested with all the powers of the
Union, rarely consist of a greater number of persons than would
compose the intended Senate. If we add to this, that as the members
vote by States, and that where there is only a single member present
from a State, his vote is lost, it will justify a supposition that the
active voices in the Senate, where the members are to vote
individually, would rarely fall short in number of the active voices
in the existing Congress. When, in addition to these considerations,
we take into view the cooperation of the President, we shall not
hesitate to infer that the people of America would have greater
security against an improper use of the power of making treaties,
under the new Constitution, than they now enjoy under the
Confederation. And when we proceed still one step further, and look
forward to the probable augmentation of the Senate, by the erection of
new States, we shall not only perceive ample ground of confidence in
the sufficiency of the members to whose agency that power will be
intrusted, but we shall probably be led to conclude that a body more
numerous than the Senate would be likely to become, would be very
little fit for the proper discharge of the trust.
- PUBLIUS
NO 76: The Same View Continued in Relation
to the Appointment of the Officers of the Government
by Alexander Hamilton
-
THE President is "to nominate, and, by and with the advice and
consent of the Senate, to appoint ambassadors, to her public ministers
and consuls, judges of the Supreme Court, and all other officers of
the United States whose appointments are not otherwise provided for in
the Constitution. But the Congress may by law vest the appointment
of such inferior officers as they think proper, in the President
alone, or in the course of law, in the heads of departments. The
President shall have power to fill up all vacancies which may happen
during the recess of the Senate, by granting commissions which shall
expire at the end of their next session."
It has been observed in a former paper, that "the true test of a
good government is its aptitude and tendency to produce a good
administration." If the justness of this observation be admitted,
the mode of appointing the officers of the United States contained
in the foregoing clauses, must, when examined, be allowed to be
entitled to particular commendation. It is not easy to conceive a plan
better calculated than this to promote a judicious choice of men for
filling the offices of the Union; and it will not need proof, that
on this point must essentially depend the character of its
administration.
It will be agreed on all hands, that the power of appointment, in
ordinary cases, ought to be modified in one of three ways. It ought
either to be vested in a single man, or in a select assembly of a
moderate number; or in a single man, with the concurrence of such an
assembly. The exercise of it by the people at large will be readily
admitted to be impracticable; as waiving every other consideration, it
would leave them little time to do any thing else. When, therefore,
mention is made in the subsequent reasonings, of an assembly or body
of men, what is said must be understood to relate to a select body
or assembly, of the description already given. The people
collectively, from their number and from their dispersed situation,
cannot be regulated in their movements by that systematic spirit of
cabal and intrigue, which will be urged as the chief objections to
reposing the power in question in a body of men.
Those who have themselves reflected upon the subject, or who have
attended to the observations made in other parts of these papers, in
relation to the appointment of the President, will, I presume, agree
to the position, that there would always be great probability of
having the place supplied by a man of abilities, at least respectable.
Premising this, I proceed to lay it down as a rule, that one man of
discernment is better fitted to analyze and estimate the peculiar
qualities adapted to particular offices, than a body of men of equal
or perhaps even of superior discernment.
The sole and undivided responsibility of one man will naturally
beget a livelier sense of duty and a more exact regard to
reputation. He will, on this account, feel himself under stronger
obligations, and more interested to investigate with care the
qualities requisite to the stations to be filled, and to prefer with
impartiality the persons who may have the fairest pretensions to them.
He will have fewer personal attachments to gratify, than a body of men
who may each be supposed to have an equal number; and will be so
much the less liable to be misled by the sentiments of friendship
and of affection. A single well-directed man, by a single
understanding, cannot be distracted and warped by that diversity of
views, feelings, and interests, which frequently distract and warp the
resolutions of a collective body. There is nothing so apt to agitate
the passions of mankind as personal considerations, whether they
relate to ourselves or to others, who are to be the objects of our
choice or preference. Hence, in every exercise of the power of
appointing to offices by an assembly of men, we must expect to see a
full display of all the private and party likings and dislikes,
partialities and antipathies, attachments and animosities, which are
felt by those who compose the assembly. The choice which may at any
time happen to be made under such circumstances, will of course be the
result either of a victory gained by one party over the other, or of a
compromise between the parties. In either case, the intrinsic merit of
the candidate will be too often out of sight. In the first, the
qualifications best adapted to uniting the suffrages of the party,
will be more considered than those which fit the person for the
station. In the last, the coalition will commonly turn upon some
interested equivalent: "Give us the man we wish for this office, and
you shall have the one you wish for that." This will be the usual
condition of the bargain. And it will rarely happen that the
advancement of the public service will be the primary object either of
party victories or of party negotiations.
The truth of the principles here advanced seems to have been felt by
the most intelligent of those who have found fault with the
provision made, in this respect, by the convention. They contend
that the President ought solely to have been authorized to make the
appointments under the federal government. But it is easy to show,
that every advantage to be expected from such an arrangement would, in
substance, be derived from the power of nomination, which is
proposed to be conferred upon him; while several disadvantages which
might attend the absolute power of appointment in the hands of that
officer would be avoided. In the act of nomination, his judgment alone
would be exercised; and as it would be his sole duty to point out
the man who, with the approbation of the Senate, should fill an
office, his responsibility would be as complete as if he were to
make the final appointment. There can, in this view, be no
difference between nominating and appointing. The same motives which
would influence a proper discharge of his duty in one case, would
exist in the other. And as no man could be appointed but on his
previous nomination, every man who might be appointed would be, in
fact, his choice.
But might not his nomination be overruled? I grant it might, yet
this could only be to make place for another nomination by himself.
The person ultimately appointed must be the object of his
preference, though perhaps not in the first degree. It is also not
very probable that his nomination would often be overruled. The Senate
could not be tempted, by the preference they might feel to another, to
reject the one proposed; because they could not assure themselves,
that the person they might wish would be brought forward by a second
or by an subsequent nomination. They could not even be certain, that a
future nomination would present a candidate in any degree more
acceptable to them; and as their dissent might cast a kind of stigma
upon the individual rejected, and might have the appearance of a
reflection upon the judgment of the chief magistrate, it is not likely
that their sanction would often be refused, where there were not
special and strong reasons for the refusal.
To what purpose then require the cooperation of the Senate? I
answer, that the necessity of their concurrence would have a powerful,
though, in general, a silent operation. It would be an excellent check
upon a spirit of favoritism in the President, and would tend greatly
to prevent the appointment of unfit characters from State prejudice,
from family connection, from personal attachment, or from a view to
popularity. In addition to this, it would be an efficacious source
of stability in the administration.
It will readily be comprehended, that a man who had himself the sole
disposition of offices, would be governed much more by his private
inclinations and interests, than when he was bound to submit the
propriety of his choice to the discussion and determination of a
different and independent body, and that body an entire branch of
the legislature. The possibility of rejection would be a strong motive
to care in proposing. The danger to his own reputation, and, in the
case of an elective magistrate, to his political existence, from
betraying a spirit of favoritism, or an unbecoming pursuit of
popularity, to the observation of a body whose opinion would have
great weight in forming that of the public, could not fail to
operate as a barrier to the one and to the other. He would be both
ashamed and afraid to bring forward, for the most distinguished or
lucrative stations, candidates who had no other merit than that of
coming from the same State to which he particularly belonged, or of
being in some way or other personally allied to him, or of
possessing the necessary insignificance and pliancy to render them the
obsequious instruments of his pleasure.
To this reasoning it has been objected that the President, by the
influence of the power of nomination, may secure the complaisance of
the Senate to his views. This supposition of universal venality
inhuman nature is little less an error in political reasoning, than
the supposition of universal rectitude. The institution of delegated
power implies, that there is a portion of virtue and honor among
mankind, which may be a reasonable foundation of confidence; and
experience justifies the theory. It has been found to exist in the
most corrupt periods of the most corrupt governments. The venality
of the British House of Commons has been long a topic of accusation
against that body, in the country to which they belong, as well as
in this; and it cannot be doubted that the charge is to a considerable
extent, well founded. But it is as little to be doubted, that there is
always a large proportion of the body, which consists of independent
and public-spirited men, who have an influential weight in the
councils of the nation. Hence it is (the present reign not excepted)
that the sense of that body is often seen to control the
inclinations of the monarch, both with regard to men and to
measures. Though it might therefore be allowable to suppose that the
Executive might occasionally influence some individuals in the Senate,
yet the supposition, that he could in general purchase the integrity
of the whole body, would be forced and improbable. A man disposed to
view human nature as it is, without either flattering its virtues or
exaggerating its vices, will see sufficient ground of confidence in
the probity of the Senate, to rest satisfied, not only that it will be
impracticable to the Executive to corrupt or seduce a majority of
its members, but that the necessity of its cooperation, in the
business of appointments, will be a considerable and salutary
restraint upon the conduct of that magistrate. Nor is the integrity of
the Senate the only reliance. The Constitution has provided some
important guards against the danger of executive influence upon the
legislative body: it declares that "No senator or representative
shall, during the time for which he was elected, be appointed to any
civil office under the United States, which shall have been created,
or the emoluments whereof shall have been increased, during such time;
and no person, holding any office under the United States, shall be
a member of either house during his continuance in office."
- PUBLIUS
NO 77: The View of the Constitution of the President Concluded,
with a Further Consideration of the Power of Appointment,
and a Concise Examination of His Remaining Powers
by Alexander Hamilton
-
IT HAS been mentioned as one of the advantages to be expected from
the cooperation of the Senate, in the business of appointments, that
it would contribute to the stability of the administration. The
consent of that body would be necessary to displace as well as to
appoint. A change of the Chief Magistrate, therefore, would not
occasion so violent or so general a revolution in the officers of
the government as might be expected, if he were the sole disposer of
offices. Where a man in any station had given satisfactory evidence of
his fitness for it, a new President would be restrained from
attempting a change in favor of a person more agreeable to him, by the
apprehension that a discountenance of the Senate might frustrate the
attempt, and bring some degree of discredit upon himself. Those who
can best estimate the value of a steady administration, will be most
disposed to prize a provision which connects the official existence of
public men with the approbation or disapprobation of that body
which, from the greater permanency of its own composition, will in all
probability be less subject to inconstancy than any other member of
the government.
To this union of the Senate with the President, in the article of
appointments, it has in some cases been suggested that it would
serve to give the President an undue influence over the Senate, and in
others that it would have an opposite tendency,- a strong proof that
neither suggestion is true.
To state the first in its proper form, is to refute it. It amounts
to this: the President would have an improper influence over the
Senate, because the Senate would have the power of restraining him.
This is an absurdity in terms. It cannot admit of a doubt that the
entire power of appointment would enable him much more effectually
to establish a dangerous empire over that body, than a mere power or
nomination subject to their control.
Let us take a view of the converse of the proposition: "the Senate
would influence the Executive." As I have had occasion to remark in
several other instances, the indistinctness of the objection forbids a
precise answer. In what manner is this influence to be exerted? In
relation to what objects? The power of influencing a person, in the
sense in which it is here used, must imply a power of conferring a
benefit upon him. How could the Senate confer a benefit upon the
President by the manner of employing their right of negative upon
his nominations? If it be said they might sometimes gratify him by
an acquiescence in a favorite choice, when public motives might
dictate a different conduct, I answer, that the instances in which the
President could be personally interested in the result, would be too
few to admit of his being materially affected by the compliances of
the Senate. The POWER which can originate the disposition of honors
and emoluments, is more likely to attract than to be attracted by
the POWER which can merely obstruct their course. If by influencing
the President be meant restraining him, this is precisely what must
have been intended. And it has been shown that the restraint would
be salutary, at the same time that it would not be such as to
destroy a single advantage to be looked for from the uncontrolled
agency of that Magistrate. The right of nomination would produce all
the good of that of appointment, and would in a great measure avoid
its evils.
Upon a comparison of the plan for the appointment of the officers of
the proposed government with that which is established by the
constitution of this State, a decided preference must be given to
the former. In that plan the power of nomination is unequivocally
vested in the Executive. And as there would be a necessity for
submitting each nomination to the judgment of an entire branch of
legislature, the circumstances attending an appointment, from the mode
of conducting it, would naturally become matter of notoriety; and
the public would be at no loss to determine what part had been
performed by the different actors. The blame of a bad nomination would
fall upon the President singly and absolutely. The censure of
rejecting a good one would lie entirely at the door of the Senate;
aggravated by the consideration of their having counteracted the
good intentions of the Executive. If an ill appointment should be
made, the Executive for nominating, and the Senate for approving,
would participate, though in different degrees, in the opprobrium
and disgrace.
The reverse of all this characterizes the manner of appointment in
this State. The council of appointment consists of from three to
five persons, of whom the governor is always one. This small body,
shut up in a private apartment, impenetrable to the public eye,
proceed to the execution of the trust committed to them. It is known
that the governor claims the right of nomination, upon the strength of
some ambiguous expressions in the constitution; but it is not known to
what extent, or in what manner he exercises it; nor upon what
occasions he is contradicted or opposed. The censure of a bad
appointment, on account of the uncertainty of its author, and for want
of a determinate object, has neither poignancy nor duration. And while
an unbounded field for cabal and intrigue lies open, all idea of
responsibility is lost. The most that the public can know, is that the
governor claims the right of nomination; that two out of the
inconsiderable number of four men can too often be managed without
much difficulty; that if some of the members of a particular council
should happen to be of an uncomplying character, it is frequently
not impossible to get rid of their opposition by regulating the
times of meeting in such a manner as to render their attendance
inconvenient; and that from whatever cause it may proceed, a great
number of very improper appointments are from time to time made.
Whether a governor of this State avails himself of the ascendant he
must necessarily have, in this delicate an important part of the
administration, to prefer to offices men who are best qualified for
them, or whether he prostitutes that advantage to the advancement of
persons whose chief merit is their implicit devotion to his will,
and to the support of a despicable and dangerous system of personal
influence, are questions which, unfortunately for the community, can
only be the subjects of speculation and conjecture.
Every mere council of appointment, however constituted, will be a
conclave, in which cabal and intrigue will have their full scope.
Their number, without an unwarrantable increase of expense, cannot
be large enough to preclude a facility of combination. And as each
member will have his friends and connections to provide for, the
desire of mutual gratification will beget a scandalous bartering of
votes and bargaining for places. The private attachments of one man
might easily be satisfied; but to satisfy the private attachments of a
dozen, or of twenty men, would occasion a monopoly of all the
principal employments of the government in a few families, and would
lead more directly to an aristocracy or an oligarchy than any
measure that could be contrived. If, to avoid an accumulation of
offices, there was to be a frequent change in the persons who were
to compose the council, this would involve the mischiefs of a
mutable administration in their full extent. Such a council would also
be more liable to executive influence than the Senate, because they
would be fewer in number, and would act less immediately under the
public inspection. Such a council, in fine, as a substitute for the
plan of the convention, would be productive of an increase of expense,
a multiplication of the evils which spring from favoritism and
intrigue in the distribution of public honors, a decrease of stability
in the administration of the government, and a diminution of the
security against an undue influence of the Executive. And yet such a
council has been warmly contended for as an essential amendment in the
proposed Constitution.
I could not with propriety conclude my observations on the subject
of appointments without taking notice of a scheme for which there have
appeared some, though but few advocates; I mean that of uniting the
House of Representatives in the Power of making them. I shall,
however, do little more than mention it, as I cannot imagine that it
is likely to gain the countenance of any considerable part of the
community. A body so fluctuating and at the same time so numerous, can
never be deemed proper for the exercise of that power. Its unfitness
will appear manifest to all, when it is recollected that in half a
century it may consist of three or four hundred persons. All the
advantages of the stability, both of the Executive and of the
Senate, would be defeated by this union, and infinite delays and
embarrassments would be occasioned. The example of most of the
States in their local constitutions encourages us to reprobate the
idea.
The only remaining powers of the Executive are comprehended in
giving information to Congress of the state of the Union; in
recommending to their consideration such measures as he shall judge
expedient; in convening them, or either branch, upon extraordinary
occasions; in adjourning them when they cannot themselves agree upon
the time of adjournment; in receiving ambassadors and other public
ministers; in faithfully executing the laws; and in commissioning
all the officers of the United States. Except some cavils about the
power of convening either house of the legislature, and that of
receiving ambassadors, no objection has been made to this class of
authorities; nor could they possibly admit of any. It required,
indeed, an insatiable avidity for censure to invent exceptions to
the parts which have been excepted to. In regard to the power of
convening either house of the legislature, I shall barely remark, that
in respect to the Senate at least, we can readily discover a good
reason for it. As this body has a concurrent power with the
Executive in the article of treaties, it might often be necessary to
call it together with a view to this object, when it would be
unnecessary and improper to convene the House of Representatives. As
to the reception of ambassadors, what I have said in a former paper
will furnish a sufficient answer.
We have not completed a survey of the structure and powers of the
executive department, which, I have endeavored to show, combines, as
far as republican principles will admit, all the requisites to energy.
The remaining inquiry is: Does it also combine the requisites to
safety, in a republican sense,- a due dependence on the people, a
due responsibility? The answer to this question has been anticipated
in the investigation of its other characteristics, and is
satisfactorily deducible from these circumstances; from the election
of the President once in four years by persons immediately chosen by
the people for that purpose; and from his being at all times liable to
impeachment, trial, dismission from office, incapacity to serve in any
other, and to forfeiture of life and estate by subsequent
prosecution in the common course of law. But these precautions,
great as they are, are not the only ones which the plan of the
convention has provided in favor of the public security. In the only
instances in which the abuse of the executive authority was materially
to be feared, the Chief Magistrate of the United States would, by that
plan, be subjected to the control of a branch of the legislative body.
What more could be desired by an enlightened and reasonable people?
- PUBLIUS
NO 78: A View of the Constitution of the Judicial Department
in Relation to the Tenure of Good Behavior
by Alexander Hamilton
-
WE PROCEED now to an examination of the judiciary department of
the proposed government.
In unfolding the defects of the existing Confederation, the
utility and necessity of a federal judicature have been clearly
pointed out. It is the less necessary to recapitulate the
considerations there urged, as the propriety of the institution in the
abstract is not disputed; the only questions which have been raised
being relative to the manner of constituting it, and so it extent.
To these points, therefore, our observations shall be confined.
The manner of constituting it seems to embrace these several
objects: 1st. The mode of appointing the judges. 2nd. The tenure by
which they are to hold their places. 3rd. The partition of the
judiciary authority between different courts, and their relations to
each other.
First. As to the mode of appointing the judges; this is the same
with that of appointing the officers of the Union in general, and
has been so fully discussed in the two last numbers, that nothing
can be said here which would not be useless repetition.
Second. As to the tenure by which the judges are to hold their
places: this chiefly concerns their duration in office; the provisions
for their support; the precautions for their responsibility.
According to the plan of the convention, all judges who may be
appointed by the United States are to hold their offices during good
behavior; which is conformable to the most approved of the State
constitutions, and among the rest to that of this State. Its propriety
having been drawn into question by the adversaries of that plan, is no
light symptom of the rage for objection, which disorders their
imaginations and judgments. The standard of good behavior for the
continuance in office of the judicial magistracy, is certainly one
of the most valuable of the modern improvements in the practice of
government. In a monarchy it is an excellent barrier to the
despotism of the prince in a republic it is a no less excellent
barrier to the encroachments and oppressions of the representative
body. And it is the best expedient which can be devised in any
government, to secure a steady, upright, and impartial
administration of the laws.
Whoever attentively considers the different departments of power
must perceive, that, in a government in which they are separated
from each other, the judiciary, from the nature of its functions, will
always be the least dangerous to the political rights of the
Constitution; because it will be least in a capacity to annoy or
injure them. The Executive not only dispenses the honors, but holds
the sword of the community. The legislature not only commands the
purse, but prescribes the rules by which the duties and rights of
every citizen are to be regulated. The judiciary, on the contrary, has
no influence over either the sword or the purse; no direction either
of the strength or of the wealth of the society; and can take no
active resolution whatever. It may truly be said to have neither FORCE
nor WILL, but merely judgment; and must ultimately depend upon the aid
of the executive arm even for the efficacy of its judgments.
This simple view of the matter suggests several important
consequences. It proves incontestably, that the judiciary is beyond
comparison the weakest of the three departments of power; *047 that it
can never attack with success either of the other two; and that all
possible care is requisite to enable it to defend itself against their
attacks. It equally proves, that though individual oppression may
now and then proceed from the courts of justice, the general liberty
of the people can never be endangered from that quarter; I mean so
long as the judiciary remains truly distinct from both the legislature
and the Executive. For I agree, that "there is no liberty, if the
power of judging be not separated from the legislative and executive
powers." *048 And it proves, in the last place, that as liberty can
have nothing to fear from the judiciary alone, but would have every
thing to fear from its union with either of the other departments;
that as all the effects of such a union must ensue from a dependence
of the former on the latter, notwithstanding a nominal and apparent
separation; that as, from the natural feebleness of the judiciary,
it is in continual jeopardy of being overpowered, awed, or
influenced by it coordinate branches; and that as nothing can
contribute so much to its firmness and independence as permanency in
office, this quality may therefore be justly regarded as an
indispensable ingredient in it constitution, and, in a great
measure, as the citadel of the public justice and the public security.
The complete independence of the courts of justice is peculiarly
essential in a limited Constitution. By a limited Constitution, I
understand one which contains certain specified exceptions to the
legislative authority; such, for instance, as that it shall pass no
bills of attainder, no ex post facto laws, and the like. Limitations
of this kind can be preserved in practice no other way than through
the medium of courts of justice, whose duty it must be to declare
all acts contrary to the manifest tenor of the Constitution void.
Without this, all the reservations of particular rights or
privileges would amount to nothing.
Some perplexity respecting the rights of the courts to pronounce
legislative acts void, because contrary to the constitution, has
arisen from an imagination that the doctrine would imply a superiority
of the judiciary to the legislative power. It is urged that the
authority which can declare the acts of another void, must necessarily
be superior to the one whose acts may be declared void. As this
doctrine is of great importance in all the American constitutions, a
brief discussion of the ground on which it rests cannot be
unacceptable.
There is no position which depends on clearer principles, than
that every act of a delegated authority, contrary to the tenor of
the commission under which it is exercised, is void. No legislative
act, therefore, contrary to the Constitution, can be valid. To deny
this, would be to affirm, that the deputy is greater than his
principal; that the servant is above his master; that the
representatives of the people are superior to the people themselves;
that men acting by virtue of powers, may do not only what their powers
do not authorize, but what they forbid.
If it be said that the legislative body are themselves the
constitutional judges of their own powers, and that the construction
they put upon them is conclusive upon the other departments, it may be
answered, that this cannot be the natural presumption, where it is not
to be collected from any particular provisions in the Constitution. It
is not otherwise to be supposed, that the Constitution could intend to
enable the representatives of the people to substitute their will to
that of their constituents. It is far more rational to suppose, that
the courts were designed to be an intermediate body between the people
and the legislature, in order, among other things, to keep the
latter within the limits assigned to their authority. The
interpretation of the laws is the proper and peculiar province of
the courts. A constitution is, in fact, and must be regarded by the
judges, as a fundamental law. It therefore belongs to them to
ascertain its meaning, as well as the meaning of any particular act
proceeding form the legislative body. If there should happen to be
an irreconcilable variance between the two, that which has the
superior obligation and validity ought, of course, to be preferred;
or, in other words, the Constitution ought to be preferred to the
statute, the intention of the people to the intention of their agents.
Nor does this conclusion by any means suppose a superiority of the
judicial to the legislative power. It only supposes that the power
of the people is superior to both; and that where the will of the
legislature, declared in its statutes, stands in opposition to that of
the people, declared in the Constitution, the judges ought to be
governed by the latter rather than the former. They ought to
regulate their decisions by the fundamental laws, rather than by those
which are not fundamental.
This exercise of judicial discretion, in determining between two
contradictory laws, is exemplified in a familiar instance. It not
uncommonly happens, that there are two statutes existing at one
time, clashing in whole or in part with each other, and neither of
them containing any repealing clause or expression. In such a case, it
is the province of the courts to liquidate and fix their meaning and
operation. So far as they can, by any fair construction, be reconciled
to each other, reason and law conspire to dictate that this should
be done; where this is impracticable, it becomes a matter of necessity
to give effect to one, in exclusion of the other. The rule which has
obtained in the courts for determining their relative validity is,
that the last in order of time shall be preferred to the first. But
this is a mere rule of construction, not derived from any positive
law, but from the nature and reason of the thing. It is a rule not
enjoined upon the courts by legislative provision, but adopted by
themselves, as consonant to truth and propriety, for the direction
of their conduct as interpreters of the law. They thought it
reasonable, that between the interfering acts of an equal authority,
that which was the last indication of its will should have the
preference.
But in regard to the interfering acts of a superior and
subordinate authority, of an original and derivative power, the nature
and reason of the thing indicate the converse of that rule as proper
to be followed. They teach us that the prior act of a superior ought
to be preferred to the subsequent act of an inferior and subordinate
authority; and that accordingly, whenever a particular statute
contravenes the Constitution, it will be the duty of the judicial
tribunals to adhere to the latter and disregard the former.
It can be of no weight to say that the courts, on the pretence of
a repugnancy, may substitute their own pleasure to the
constitutional intentions of the legislature. This might as well
happen in the case of two contradictory statutes; or it might as
well happen in every adjudication upon any single statute. The
courts must declare the sense of the law; and if they should be
disposed to exercise WILL instead of JUDGMENT, the consequence would
equally be the substitution of their pleasure to that of the
legislative body. The observation, if it prove any thing, would
prove that there ought to be no judges distinct from that body.
If, then, the courts of justice are to be considered as the bulwarks
of a limited Constitution against legislative encroachments, this
consideration will afford a strong argument for the permanent tenure
of judicial offices, since nothing will contribute so much as this
to that independent spirit in the judges which must be essential to
the faithful performance of so arduous a duty.
This independence of the judges is equally requisite to guard the
Constitution and the rights of individuals from the effects of those
ill humors, which the arts of designing men, or the influence of
particular conjunctures, sometimes disseminate among the people
themselves, and which, though they speedily give place to better
information, and more deliberate reflection, have a tendency, in the
meantime, to occasion dangerous innovations in the government, and
serious oppressions of the minor party in the community. Though I
trust the friends of the proposed Constitution will never concur
with its enemies, *049 in questioning that fundamental principle of
republican government, which admits the right of the people to alter
or abolish the established Constitution, whenever they find it
inconsistent with their happiness, yet it is not to be inferred from
this principle, that the representatives of the people, whenever a
momentary inclination happens to lay hold of a majority of their
constituents, incompatible with the provisions in the existing
Constitution, would, on that account, be justifiable in a violation of
those provisions; or that the courts would be under a greater
obligation to connive at infractions in this shape, than when they had
proceeded wholly from the cabals of the representative body. Until the
people have, by some solemn and authoritative act, annulled or changed
the established form, it is binding upon themselves collectively, as
well as individually; and no presumption, or even knowledge, of
their sentiments, can warrant their representatives in a departure
from it, prior to such an act. But it is easy to see, that it would
require an uncommon portion of fortitude in the judges to do their
duty as faithful guardians of the Constitution, where legislative
invasions of it had been instigated by the major voice of the
community.
But it is not with a view to infractions of the Constitution only,
that the independence of the judges may be an essential safeguard
against the effects of occasional ill humors in the society. These
sometimes extend no farther than to the injury of the private rights
of particular classes of citizens, by unjust and partial laws. Here
also the firmness of the judicial magistracy is of vast importance
in mitigating the severity and confining the operation of such laws.
It not only serves to moderate the immediate mischiefs of those
which may have been passed, but it operates as a check upon the
legislative body in passing them; who, perceiving that obstacles to
the success of iniquitous intention are to be expected from the
scruples of the courts, are in a manner compelled, by the very motives
of the injustice they meditate, to qualify their attempts. This is a
circumstance calculated to have more influence upon the character of
our governments, than but few may be aware of. The benefits of the
integrity and moderation of the judiciary have already been felt in
more States than one; and though they may have displeased those
whose sinister expectations they may have disappointed, they must have
commanded the esteem and applause of all the virtuous and
disinterested. Considerate men, of every description, ought to prize
whatever will tend to beget or fortify that temper in the courts; as
no man can be sure that he may not be tomorrow the victim of a
spirit of injustice, by which he may be a gainer today. And every
man must now feel, that the inevitable tendency of such a spirit is to
sap the foundations of public and private confidence, and to introduce
in its stead universal distrust and distress.
That inflexible and uniform adherence to the rights of the
Constitution, and of individuals, which we perceive to be
indispensable in the courts of justice, can certainly not be
expected from judges who hold their offices by a temporary commission.
Periodical appointments, however regulated, or by whomsoever made,
would, in some way or other, be fatal to their necessary independence.
If the power of making them was committed either to the Executive or
legislature, there would be danger of an improper complaisance to
the branch which possessed it; if to both, there would be an
unwillingness to hazard the displeasure of either; if to the people,
or to persons chosen by them for the special purpose, there would be
too great a disposition to consult popularity, to justify a reliance
that nothing would be consulted but the Constitution and the laws.
There is yet a further and a weightier reason for the permanency
of the judicial offices, which is deducible from the nature of the
qualifications they require. It has been frequently remarked, with
great propriety, that a voluminous code of laws is one of the
inconveniences necessarily connected with the advantages of a free
government. To avoid an arbitrary discretion in the courts, it is
indispensable that they should be bound down by strict rules and
precedents, which serve to define and point out their duty in every
particular case that comes before them; and it will readily be
conceived from the variety of controversies which grow out of the
folly and wickedness of mankind, that the records of those
precedents must unavoidably swell to a very considerable bulk, and
must demand long and laborious study to acquire a competent
knowledge of them. Hence it is, that there can be but few men in the
society who will have sufficient skill in the laws to qualify them for
the stations of judges. And making the proper deductions for the
ordinary depravity of human nature, the number must be still smaller
of those who unite the requisite integrity with the requisite
knowledge. These considerations apprise us, that the government can
have no great option between fit character; and that a temporary
duration in office, which would naturally discourage such characters
from quitting a lucrative line of practice to accept a seat on the
bench, would have a tendency to throw the administration of justice
into hands less able, and less well qualified, to conduct it with
utility and dignity. In the present circumstances of this country, and
in those in which it is likely to be for a long time to come, the
disadvantages on this score would be greater than they may at first
sight appear; but it must be confessed, that they are far inferior
to those which present themselves under the other aspects of the
subject.
Upon the whole, there can be no room to doubt that the convention
acted wisely in copying from the models of those constitutions which
have established good behavior as the tenure of their judicial
offices, in point of duration; and that so far from being blamable
on this account, their plan would have been inexcusably defective,
if it had wanted this important feature of good government. The
experience of Great Britain affords an illustrious comment on the
excellence of the institution.
- PUBLIUS
NO 79: A Further View of the Judicial Department in Relation
to the Provisions for the Support and Responsibility of the Judges
by Alexander Hamilton
-
NEXT to permanency in office, nothing can contribute more to the
independence of the judges than a fixed provision for their support.
The remark made in relation to the President is equally applicable
here. In the general course of human nature, a power over a man's
subsistence amounts to a power over his will. And we can never hope to
see realized in practice, the complete separation of the judicial from
the legislative power, in any system which leaves the former dependent
for pecuniary resources on the occasional grants of the latter. The
enlightened friends to good governments in every State, have seen
cause to lament the want of precise and explicit precautions in the
State constitutions on this head. Some of these indeed have declared
that permanent *050 salaries should be established for the judges; but
the experiment has in some instances shown that such expressions are
not sufficiently definite to preclude legislative evasions. Something
still more positive and unequivocal has been evinced to be
requisite. The plan of the convention accordingly has provided that
the judges of the United States "shall at stated times receive for
their services a compensation which shall not be diminished during
their continuance in office."
This, all circumstances considered, is the most eligible provision
that could have been devised. It will readily be understood that the
fluctuations in the value of money and in the state of society
rendered a fixed rate of compensation in the Constitution
inadmissible. What might be extravagant today, might in half a century
become penurious and inadequate. It was therefore necessary to leave
it to the discretion of the legislature to vary its provisions in
conformity to the variations in circumstances, yet under such
restrictions as to put it out of the power of that body to change
the condition of the individual for the worse. A man may then be
sure of the ground upon which he stands, and can never be deterred
from his duty by the apprehension of being placed in a less eligible
situation. The clause which has been quoted combines both
advantages. The salaries of judicial officers may from time to time be
altered, as occasion shall require, yet so as never to lessen the
allowance with which any particular judge comes into office, in
respect to him. It will be observed that a difference has been made by
the convention between the compensation of the President and of the
judges. That of the former can neither be increased nor diminished;
that of the latter can only not be diminished. This probably arose
from the difference in the duration of the respective offices. As
the President is to be elected for no more than four years, it can
rarely happen that an adequate salary, fixed at the commencement of
that period, will not continue to be such to its end. But with
regard to the judges, who, if they behave properly, will be secured in
their places for life, it may well happen, especially in the early
stages of the government, that a stipend, which would be very
sufficient at their first appointment, would be come too small in
the progress of their service.
This provision for the support of the judges bears every mark of
prudence and efficacy; and it may be safely affirmed that, together
with the permanent tenure of their offices, it affords a better
prospect of their independence than is discoverable in the
constitutions of any of the States in regard to their own judges.
The precautions for their responsibility are comprised in the
article respecting impeachments. They are liable to be impeached for
malconduct by the House of Representatives, and tried by the Senate;
and, if convicted, may be dismissed from office, and disqualified
for holding any other. This is the only provision on the point which
is consistent with the necessary independence of the judicial
character, and is the only one which we find in our own Constitution
in respect to our own judges.
The want of a provision for removing the judges on account of
inability has been a subject of complaint. But all considerate men
will sensible that such a provision would either not be practiced upon
or would be more liable to abuse than calculated to answer any good
purpose. The mensuration of the faculties of the mind has, I
believe, no place in the catalogue of known arts. An attempt to fix
the boundary between the regions of ability and inability, would
much oftener give scope to personal and party attachments and enmities
than advance the interest of justice or the public good. The result,
except in the case of insanity, must for the most part be arbitrary;
and insanity, without any formal or express provision, may be safely
pronounced to be a virtual disqualification.
The constitution of New York, to avoid investigations that must
forever be vague and dangerous, has taken a particular age the
criterion of inability. No man can be a judge beyond sixty. I
believe there are few at present who do not disapprove of this
provision. There is no station, in relation to which it is less proper
than to that of a judge. The deliberating and comparing faculties
generally preserve their strength much beyond that period in men who
survive it; and when, in addition to this circumstance, we consider
how few there are who outlive the season of intellectual vigor, and
how improbably it is that any considerable portion of the bench,
whether more of less numerous, should be in such a situation at the
same time, we shall be ready to conclude that limitations of this sort
have little to recommend them. In a republic, where fortunes are not
affluent, and pensions not expedient, the dismission of men from
stations in which they have served their country long and usefully, on
which they depend for subsistence, and from which it will be too
late to resort to any other occupation for a livelihood, ought to have
some better apology to humanity than is to be found in the imaginary
danger of a superannuated bench.
- PUBLIUS
NO 80: A Further View of the Judicial Department
in Relation to the Extent of Its Powers
by Alexander Hamilton
-
TO JUDGE with accuracy of the proper extent of the federal
judicature, it will be necessary to consider, in the first place, what
are its proper objects.
It seems scarcely to admit of controversy, that the judiciary
authority of the Union ought to extend to these several descriptions
of cases: 1st, to all those which arise out of the laws of the
United States, passed in pursuance of their just and constitutional
powers of legislation; 2nd, to all those which concern the execution
of the provisions expressly contained in the articles of Union; 3rd,
to all those in which the United States are a party; 4th, to all those
which involve the PEACE OF THE CONFEDERACY, whether they relate to the
intercourse between the United States and foreign nations, or to
that between the States themselves; 5th, to all those which
originate on the high seas, and are of admiralty or maritime
jurisdiction; and, lastly, to all those in which the State tribunals
cannot be supposed to be impartial and unbiased.
The first point depends upon this obvious consideration, that
there ought always to be a constitutional method of giving efficacy to
constitutional provisions. What, for instance, would avail
restrictions on the authority of the State legislatures, without
some constitutional mode of enforcing the observance of them? The
States, by the plan of the convention, are prohibited from doing a
variety of things, some of which are incompatible with the interests
of the Union, and others with the principles of good government. The
imposition of duties on imported articles, and the emission of paper
money, are specimens of each kind. No man of sense will believe,
that such prohibitions would be scrupulously regarded, without some
effectual power in the government to restrain or correct the
infractions of them. This power must either be a direct negative on
the State laws, or an authority in the federal courts to overrule such
as might be in manifest contravention of the articles of Union.
There is no third course that I can imagine. The latter appears to
have been thought by the convention preferable to the former, and, I
presume, will be most agreeable to the States.
As to the second point, it is impossible, by an argument or comment,
to make it clearer than it is in itself. If there are such things as
political axioms, the propriety of the judicial power of a
government being coextensive with its legislative, may be ranked among
the number. The mere necessity of uniformity in the interpretation
of the national laws, decides the question. Thirteen independent
courts of final jurisdiction over the same causes, arising upon the
same laws, is a hydra in government from which nothing but
contradiction and confusion can proceed.
Still less need be said in regard to the third point.
Controversies between the nation and its members or citizens, can only
be properly referred to the national tribunals. Any other plan would
be contrary to reason, to precedent, and to decorum.
The fourth point rests on this plain proposition, that the peace
of the WHOLE ought not to be left at the disposal of a PART. The Union
will undoubtedly be answerable to foreign powers for the conduct of
its members. And the responsibility for an injury ought ever to be
accompanied with the faculty of preventing it. As the denial or
perversion of justice by the sentences of courts, as well as in any
other manner, is with reason classed among the just causes of war,
it will follow that the federal judiciary ought to have cognizance
of all causes in which the citizens of other countries are
concerned. This is not less essential to the preservation of the
public faith, than to the security of the public tranquillity. A
distinction may perhaps be imagined between cases arising upon
treaties and the laws of nations and those which may stand merely on
the footing of the municipal law. The former kind may be supposed
proper for the federal jurisdiction, the latter for that of the
States. But it is at least problematical, whether an unjust sentence
against a foreigner, where the subject of controversy was wholly
relative to the lex loci, would not, if unredressed, be an
aggression upon his sovereign, as well as one which violated the
stipulations of a treaty or the general law of nations. And a still
greater objection to the distinction would result from the immense
difficulty, if not impossibility, of a practical discrimination
between the cases of one complexion and those of the other. So great a
proportion of the cases in which foreigners are parties, involve
national questions, that it is by far most safe and most expedient
to refer all those in which they are concerned to the national
tribunals.
The power of determining causes between two States, between one
State and the citizens of another, and between the citizens of
different States, is perhaps not less essential to the peace of the
Union than that which has been just examined. History gives us a
horrid picture of the dissensions and private wars which distracted
and desolated Germany prior to the institution of the Imperial Chamber
by Maximilian, towards the close of the fifteenth century; and informs
us, at the same time, of the vast influence of that institution in
appeasing the disorders and establishing the tranquillity of the
empire. This was a court invested with authority to decide finally all
differences among the members of the Germanic body.
A method of terminating territorial disputes between the States,
under the authority of the federal head, was not unattended to, even
in the imperfect system by which they have been hitherto held
together. But there are many other sources, besides interfering claims
of boundary, from which bickerings and animosities may spring up among
the members of the Union. To some of these we have been witnesses in
the course of our past experience. It will readily be conjectured that
I allude to the fraudulent laws which have been passed in too many
of the States. And though the proposed Constitution establishes
particular guards against the repetition of those instances which have
heretofore made their appearance, yet it is warrantable to apprehend
that the spirit which produced them will assume new shapes that
could not be foreseen nor specifically provided against. Whatever
practices may have a tendency to disturb the harmony between the
States, are proper objects of federal superintendence and control.
It may be esteemed the basis of the Union, that "the citizens of
each State shall be entitled to all the privileges and immunities of
citizens of the several States." And if it be a just principle that
every government ought to possess the means of executing its own
provisions by its own authority, it will follow, that in order to
the inviolable maintenance of that equality of privileges and
immunities to which the citizens of the Union will be entitled, the
national judiciary ought to preside in all cases in which one State or
its citizens are opposed to another State or its citizens. To secure
the full effect of so fundamental a provision against all evasion
and subterfuge, it is necessary that its construction should be
committed to that tribunal which, having no local attachments, will be
likely to be impartial between the different States and their
citizens, and which, owing its official existence to the Union, will
never be likely to feel any bias inauspicious to the principles on
which it is founded.
The fifth point will demand little animadversion. The most bigoted
idolizers of State authority have not thus far shown a disposition
to deny the national judiciary the cognizances of maritime causes.
These so generally depend on the laws of nations, and so commonly
affect the rights of foreigners, that they fall within the
considerations which are relative to the public peace. The most
important part of them are, by the present Confederation, submitted to
federal jurisdiction.
The reasonableness of the agency of the national courts in cases
in which the State tribunals cannot be supposed to be impartial,
speaks for itself. No man ought certainly to be a judge in his own
cause, or in any cause in respect to which he has the least interest
or bias. This principle has no inconsiderable weight in designating
the federal courts as the proper tribunals for the determination of
controversies between different States and their citizens. And it
ought to have the same operation in regard to some cases between
citizens of the same State. Claims to land under grants of different
States, founded upon adverse pretentions of boundary, are of this
description. The courts of neither of the granting States could be
expected to be unbiased. The laws may have even prejudged the
question, and tied the courts down to decisions in favor of the grants
of the State to which they belonged. And even where this had not
been done, it would be natural that the judges, as men, should feel
a strong predilection to the claims of their own government.
Having thus laid down and discussed the principles which ought to
regulate the constitution of the federal judiciary, we will proceed to
test, by these principles, the particular powers of which, according
to the plan of the convention, it is to be composed. It is to
comprehend "all cases in law and equity arising under the
Constitution, the laws of the United States, and treaties made, or
which shall be made, under their authority; to all cases affecting
ambassadors, other public ministers, and consuls; to all cases of
admiralty and maritime jurisdiction; to controversies to which the
United States shall be a party; to controversies between two or more
States; between a State and citizens of another State; between
citizens of different States; between citizens of the same State
claiming lands and grants of different States; and between a State
or the citizens thereof and foreign states, citizens, and subjects."
This constitutes the entire mass of the judicial authority of the
Union. Let us now review it in detail. It is, then, to extend:
First. To all cases in law and equity, arising under the
Constitution and the laws of the United States. This corresponds
with the two first classes of causes, which have been enumerated, as
proper for the jurisdiction of the United States. It has been asked,
what is meant by "cases arising under the Constitution," in
contradistinction from those "arising under the laws of the United
States"? The difference has been already explained. All the
restrictions upon the authority of the State legislatures furnish
examples of it. They are not, for instance to emit paper money; but
the interdiction results from the Constitution, and will have no
connection with any law of the United States. Should paper money,
notwithstanding, be emitted, the controversies concerning it would
be cases arising under the Constitution and not the laws of the United
States, in the ordinary signification of the terms. This may serve
as a sample of the whole.
It has also been asked, what need of the word "equity"? What
equitable causes can grow out of the Constitution and laws of the
United States? There is hardly a subject of litigation between
individuals, which may not involve those ingredients of fraud,
accident, trust, or hardship, which would render the matter an
object of equitable rather than of legal jurisdiction, as the
distinction is known and established in several of the States. It is
the peculiar province, for instance, of a court of equity to relieve
against what are called hard bargains: these are contracts in which,
though there may have been no direct fraud or deceit, sufficient to
invalidate them in a court of law, yet there may have been some
undue and unconscionable advantage taken of the necessities or
misfortunes of one of the parties, which a court of equity would not
tolerate. In such cases, where foreigners were concerned on either
side, it would be impossible for the federal judicatories to do
justice without an equitable as well as a legal jurisdiction.
Agreements to convey lands claimed under the grants of different
States, may afford another example of the necessity of an equitable
jurisdiction in the federal courts. This reasoning may not be so
palpable in those States where the formal and technical distinction
between LAW and EQUITY is not maintained, as in this State, where it
is exemplified by every day's practice.
The judiciary authority of the Union is to extend:
Second. To treaties made, or which shall be made, under the
authority of the United States, and to all cases affecting
ambassadors, other public ministers, and consuls. These belong to
the fourth class of the enumerated cases, as they have an evident
connection with the preservation of the national peace.
Third. To cases of admiralty and maritime jurisdiction. These
form, altogether, the fifth of the enumerated classes of causes proper
for the cognizance of the national courts.
Fourth. To controversies to which the United States shall be a
party. These constitute the third of those classes.
Fifth. To controversies between two or more States; between a
State and citizens of another State; between citizens of different
States. These belong to the fourth of those classes and partake, in
some measure, of the nature of the last.
Sixth. To cases between the citizens of the same State, claiming
lands under grants of different States. These fall within the last
class, and are the only instances in which the proposed Constitution
directly contemplates the cognizance of disputes between the
citizens of the same State.
Seventh. To cases between a State and the citizens thereof, and
foreign States, citizens, or subjects. These have been already
explained to belong to the fourth of the enumerated classes, and
have been shown to be, in a peculiar manner, the proper subjects of
the national judicature.
From this review of the particular powers of the federal
judiciary, as marked out in the Constitution, it appears that they are
all conformable to the principles which ought to have governed the
structure of that department, and which were necessary to the
perfection of the system. If some partial inconveniences should appear
to be connected with the incorporation of any of them into the plan,
it ought to be recollected that the national legislature will have
ample authority to make such exceptions, and to prescribe such
regulations as will be calculated to obviate or remove these
inconveniences. The possibility of particular mischief can never be
viewed, by a well-informed mind, as a solid objection to a general
principle, which is calculated to avoid general mischiefs and to
obtain general advantages.
- PUBLIUS
NO 81: A Further View of the Judicial Department
in Relation to the Distribution of Its Authority
by Alexander Hamilton
-
LET US now return to the partition of the judiciary authority
between different courts, and their relations to each other.
"The judicial power of the United States is" (by the plan of the
convention) "to be vested in one Supreme Court, and in such inferior
courts as the Congress may, from time to time, ordain and
establish." *051
That there ought to be one court of supreme and final
jurisdiction, is a proposition which is not likely to be contested.
The reasons have been assigned in another place, and are too obvious
to need repetition. The only question that seems to have been raised
concerning it, is, whether it ought to be a distinct body or a
branch of the legislature. The same contradiction is observable in
regard to this matter which has been remarked in several other
cases. The very men who object to the Senate as a court of
impeachments, on the ground of an improper intermixture of powers,
advocate, by implication at least, the propriety of vesting the
ultimate decision of all causes, in the whole or in a part of the
legislative body.
The arguments, or rather suggestions, upon which this charge is
founded, are to this effect: "The authority of the proposed Supreme
Court of the United States, which is to be a separate and
independent body, will be superior to that of the legislature. The
power of construing the laws according to the spirit of the
Constitution, will enable that court to mould them into whatever shape
it may think proper; especially as its decisions will not be in any
manner subject to the revision or correction of the legislative
body. This is as unprecedented as it is dangerous. In Britain, the
judicial power, in the last resort, resides in the House of Lords,
which is a branch of the legislature; and this part of the British
government has been imitated in the State constitutions in general.
The Parliament of Great Britain, and the legislatures of the several
States, can at any time rectify, by law, the exceptionable decisions
of their respective courts. But the errors and usurpations of the
Supreme Court of the United States will be uncontrollable and
remediless." This, upon examination, will be found to be made up
altogether of false reasoning upon misconceived fact.
In the first place, there is not a syllable in the plan under
consideration which directly empowers the national courts to
construe the laws according to the spirit of the Constitution, or
which gives them any greater latitude in this respect than may be
claimed by the courts of every State. I admit, however, that the
Constitution ought to be the standard of construction for the laws,
and that wherever there is an evident opposition, the laws ought to
give place to the Constitution. But this doctrine is not deducible
from any circumstance peculiar to the plan of the convention, but form
the general theory of a limited Constitution; and as far as it is
true, is equally applicable to most, if not to all the State
governments. There can be no objection, therefore, on this account, to
the federal judicature which will not lie against the local
judicatures in general, and which will not serve to condemn every
constitution that attempts to set bounds to legislative discretion.
But perhaps the force of the objection may be thought to consist
in the particular organization of the Supreme Court; in its being
composed of a distinct body of magistrates, instead of being one of
the branches of the legislature, as in the government of Great Britain
and that of the State. To insist upon this point, the authors of the
objection must renounce the meaning they have labored to annex to
the celebrated maxim, requiring a separation of the departments of
power. It shall, nevertheless, be conceded to them, agreeably to the
interpretation given to that maxim in the course of these papers, that
it is not violated by vesting the ultimate power of judging in a
part of the legislative body. But though this be not an absolute
violation of that excellent rule, yet it verges so nearly upon it,
as on this account alone to be less eligible than the mode preferred
by the convention. From a body which had even a partial agency in
passing bad laws, we could rarely expect a disposition to temper and
moderate them in the application. The same spirit which had operated
in making them, would be too apt in interpreting them; still less
could it be expected that men who had infringed the Constitution in
the character of legislators, would be disposed to repair the breach
in the character of judges. Nor is this all. Every reason which
recommends the tenure of good behavior for judicial offices, militates
against placing the judiciary power, in the last resort, in a body
composed of men chosen for a limited period. There is an absurdity
in referring the determination of causes, in the first instance, to
judges of permanent standing; in the last, to those of a temporary and
mutable constitution. And there is a still greater absurdity in
subjecting the decisions of men, selected for their knowledge of the
laws, acquired by long and laborious study, to the revision and
control of men who, for want of the same advantage, cannot but be
deficient in that knowledge. The members of the legislature will
rarely be chosen with a view to those qualifications which fit men for
the stations of judges; and as, on this account, there will be great
reason to apprehend all the ill consequences of defective information,
so, on account of the natural propensity of such bodies to party
divisions, there will be no less reason to fear that the
pestilential breath of faction may poison the fountains of justice.
The habit of being continually marshalled on opposite sides will be
too apt to stifle the voice both of law and of equity.
These considerations teach us to applaud the wisdom of those
States who have committed the judicial power, in the last resort,
not to a part of the legislature, but to distinct and independent
bodies of men. Contrary to the supposition of those who have
represented the plan of the convention, in this respect, as novel
and unprecedented, it is but a copy of the constitution of New
Hampshire, Massachusetts, Pennsylvania, Delaware, Maryland,
Virginia, North Carolina, South Carolina, and Georgia; and the
preference which has been given to those models is highly to be
commended.
It is not true, in the second place, that the Parliament of Great
Britain, or the legislatures of the particular States, can rectify the
exceptionable decisions of their respective courts, in any other sense
than might be done by a future legislature of the United States. The
theory, neither of the British, nor the State constitutions,
authorizes the revisal of a judicial sentence by a legislative act.
Nor is there any thing in the proposed Constitution, more than in
either of them, by which it is forbidden. In the former, as well as in
the latter, the impropriety of the thing, on the general principles of
law and reason, is the sole obstacle. A legislature, without exceeding
is province, cannot reverse a determination once made in a
particular case; though it may prescribe a new rule for future
cases. This is the principle, and it applies in all its
consequences, exactly in the same manner and extent, to the State
governments, as to the national government now under consideration.
Not the least difference can be pointed out in any view of the
subject.
It may in the last place be observed that the supposed danger of
judiciary encroachments on the legislative authority, which has been
upon many occasions reiterated, is in reality a phantom. Particular
misconstructions and contraventions of the will of the legislature may
now and then happen; but they can never be so extensive as to amount
to an inconvenience, or in any sensible degree to affect the order
of the political system. This may be inferred with certainty, from the
general nature of the judicial power, from the objects to which it
relates, from the manner in which it is exercised, from its
comparative weakness, and from its total incapacity to support it
usurpations by force. And the inference is greatly fortified by the
consideration of the important constitutional check which the power of
instituting impeachments in one part of the legislative body, and of
determining upon them in the other, would give to that body upon the
members of the judicial department. This is alone a complete security.
There never can be danger that judges, by a series of deliberate
usurpations on the authority of the legislature, would hazard the
united resentment of the body intrusted with it, while this body was
possessed of the means of punishing their presumption, by degrading
them from their stations. While this ought to remove all apprehensions
on the subject, it affords, at the same time, a cogent argument for
constituting the Senate a court for the trial of impeachments.
Having now examined, and, I trust, removed the objections to the
distinct and independent organization of the Supreme Court, I
proceed to consider the propriety of the power of constituting
inferior courts, *052 and the relations which will subsist between
these and the former.
The power of constituting inferior courts is evidently calculated to
obviate the necessity of having recourse to the Supreme Court in every
case of federal cognizance. It is intended to enable the national
government to institute or authorize, in each State or district of the
United States, a tribunal competent to the determination of matters of
national jurisdiction within its limits.
But why, it is asked, might not the same purpose have been
accomplished by the instrumentality of the State courts? This admits
of different answers. Though the fitness and competency of those
courts should be allowed in the utmost latitude, yet the substance
of the power in question may still be regarded as a necessary part
of the plan, if it were only to empower the national legislature to
commit to them the cognizance of causes arising out of the national
Constitution. To confer the power of determining such causes upon
the existing courts of the several States, would perhaps be as much
"to constitute tribunals," as to create new courts with the like
power. But ought not a more direct and explicit provision to have been
made in favor of the State courts? There are, in my opinion,
substantial reasons against such a provision: the most discerning
cannot foresee how far the prevalency of a local spirit may be found
to disqualify the local tribunals for the jurisdiction of national
causes; whilst every man may discover, that courts constituted like
those of some of the States would be improper channels of the judicial
authority of the Union. State judges, holding their offices during
pleasure, or from year to year, will be too little independent to be
relied upon for an inflexible execution of the national laws. And if
there was a necessity for confiding the original cognizance of
causes arising under those laws to them, there would be a
correspondent necessity for leaving the door of appeal as wide as
possible. In proportion to the grounds of confidence in, or distrust
of, the subordinate tribunals, ought to be the facility or
difficulty of appeals. And well satisfied as I am of the propriety
of the appellate jurisdiction, in the several classes of causes to
which it is extended by the plan of the convention. I should
consider every thing calculated to give, in practice, and unrestrained
course to appeals, as a source of public and private inconvenience.
I am not sure, but that it will be found highly expedient and
useful, to divide the United States into four or five or half a
dozen districts; and to institute a federal court in each district, in
lieu of one in every State. The judges of these courts, with the aid
of the State judges, may hold circuits for the trial of causes in
the several parts of the respective districts. Justice through them
may be administered with ease and despatch; and appeals may be
safely circumscribed within a narrow compass. This plan appears to
me at present the most eligible of any that could be adopted; and in
order to it, it is necessary that the power of constituting inferior
courts should exist in the full extent in which it is to be found in
the proposed Constitution.
These reasons seem sufficient to satisfy a candid mind, that the
want of such a power would have been a great defect in the plan. Let
us now examine in what manner the judicial authority is to be
distributed between the supreme and the inferior courts of the Union.
The Supreme Court is to be invested with original jurisdiction, only
"in cases affecting ambassadors, other public ministers, and
consuls, and those in which A STATE shall be a party." Public
ministers of every class are the immediate representatives of their
sovereigns. All questions in which they are concerned are so
directly connected with the public peace, that, as well for the
preservation of this, as out of respect to the sovereignties they
represent, it is both expedient and proper that such questions
should be submitted in the first instance to the highest judicatory of
the nation. Though consuls have not in a strictness a diplomatic
character, yet as they are the public agents of the nations to which
they belong, the same observation is in a great measure applicable
to them. In cases in which a State might happen to be a party, it
would ill suit its dignity to be turned over to an inferior tribunal.
Though it may rather be a digression from the immediate subject of
this paper, I shall take occasion to mention here a supposition
which has excited some alarm upon very mistaken grounds. It has been
suggested that an assignment of the public securities of one State
to the citizens of another, would enable them to prosecute that
State in the federal courts for the amount of those securities; a
suggestion which the following considerations prove to be without
foundation.
It is inherent in the nature of sovereignty not to be amenable to
the suit of an individual without its consent. This is the general
sense, and the general practice of mankind; and the exemption, as
one of the attributes of sovereignty, is now enjoyed by the government
of every State in the Union. Unless, therefore, there is a surrender
of this immunity in the plan of the convention, it will remain with
the States, and the danger intimated must be merely ideal. The
circumstances which are necessary to produce an alienation of State
sovereignty were discussed in considering the article of taxation, and
need not be repeated here. A recurrence to the principles there
established will satisfy us, that there is no color to pretend that
the State governments would, by the adoption of that plan, be divested
of the privilege of paying their own debts in their own way, free from
every constraint but that which flows from the obligations of good
faith. The contracts between a nation and individuals are only binding
on the conscience of the sovereign, and have no pretensions to a
compulsive force. They confer no right of action, independent of the
sovereign will. To what purpose would it be to authorize suits against
States for the debts they owe? How could recoveries be enforced? It is
evident, it could not be done without waging war against the
contracting State; and to ascribe to the federal courts, by mere
implication, and in destruction of a preexisting right of the State
governments, a power which would involve such a consequence, would
be altogether forced and unwarrantable.
Let us resume the train of our observations. We have seen that the
original jurisdiction of the Supreme Court would be confined to two
classes of causes, and those of a nature rarely to occur. In all other
cases of federal cognizance, the original jurisdiction would appertain
to the inferior tribunals; and the Supreme Court would have nothing
more than an appellate jurisdiction, "with such exceptions and under
such regulations as the Congress shall make."
The propriety of this appellate jurisdiction has been scarcely
called in question in regard to matters of law; but the clamors have
been loud against it as applied to matters of fact. Some
well-intentioned men in this State, deriving their notions from the
language and forms which obtain in our courts, have been induced to
consider it as an implied supersedure of the trial by jury, in favor
of the civil-law mode of trial, which prevails in our courts of
admiralty, probate, and chancery. A technical sense has been affixed
to the term "appellate," which, in our law parlance, is commonly
used in reference to appeals in the course of the civil law. But if
I am not misinformed, the same meaning would not be given to it in any
part of New England. There an appeal from one jury to another, is
familiar both in language and practice, is even a matter of course,
until there have been two verdicts on one side. The word
"appellate," therefore, will not be understood in the same sense in
new England as in New York, which shows the impropriety of a technical
interpretation derived from the jurisprudence of any particular State.
The expression, taken in the abstract, denotes nothing more than the
power of one tribunal to review the proceedings of another, either
as to the law or fact, or both. The mode of doing it may depend on
ancient custom or legislative provision (in a new government it must
depend on the latter), and may be with or without the aid of a jury,
as may be judged advisable. If, therefore, the re-examination of a
fact once determined by a jury, should in any case be admitted under
the proposed Constitution, it may be so regulated as to be done by a
second jury, either by remanding the cause to the court below for a
second trial of the fact, or by directing an issue immediately out
of the Supreme Court.
But it does not follow that the re-examination of a fact once
ascertained by a jury, will be permitted in the Supreme Court. Why may
not it be said, with the strictest propriety, when a writ of error
is brought from an inferior to a superior court of law in this
State, that the latter has jurisdiction of the fact as well as the
law? It is true it cannot institute a new inquiry concerning the fact,
but it takes cognizance of it as it appears upon the record, and
pronounces the law arising upon it. *053 This is jurisdiction of both
fact and law; nor is it even possible to separate them. Though the
common-law courts of this State ascertain disputed facts by a jury,
yet they unquestionably have jurisdiction of both fact and law; and
accordingly when the former is agreed in the pleadings, they have no
recourse to a jury, but proceed at once to judgment. I contend,
therefore, on this ground, that the expressions, "appellate
jurisdiction, both as to law and fact," do not necessarily imply a
re-examination in the Supreme Court of facts decided by juries in
the inferior courts.
The following train of ideas may well be imagined to have influenced
the convention, in relation to this particular provision. The
appellate jurisdiction of the Supreme Court (it may have been
argued) will extend to causes determinable in different modes, some in
the course of the COMMON LAW, others in the course of the CIVIL LAW.
In former, the revision of the law only will be, generally speaking,
the proper province of the Supreme Court; in the latter, the
re-examination of the fact is agreeable to usage, and in some cases,
of which prize causes are an example, might be essential to the
preservation of the public peace. It is therefore necessary that the
appellate jurisdiction should, in certain cases, extend in the
broadest sense to matters of fact. It will not answer to make an
express exception of cases which shall have been originally tried by a
jury, because in the courts of some of the States all causes are tried
in this mode; *054 and such an exception would preclude the revision
of matters of fact, as well where it might be proper, as where it
might be improper. To avoid all inconveniences, it will be safest to
declare generally, that the Supreme Court shall possess appellate
jurisdiction both as to law and fact, and that this jurisdiction shall
be subject to such exceptions and regulations as the national
legislature may prescribe. This will enable the government to modify
it in such a manner as will best answer the ends of public justice and
security.
This view of the matter, at any rate, puts it out of all doubt
that the supposed abolition of the trial by jury, by the operation
of this provision, is fallacious and untrue. The legislature of the
United States would certainly have full power to provide, that in
appeals to the Supreme Court there should be no re-examination of
facts where they had been tried in the original causes by juries. This
would certainly be an authorized exception; but if, for the reason
already intimated, it should be thought too extensive, it might be
qualified with a limitation to such causes only as are determinable at
common law in that mode of trial.
The amount of the observations hitherto made on the authority of the
judicial department is this: that it has been carefully restricted
to those causes which are manifestly proper for the cognizance of
the national judicature; that in the partition of this authority a
very small portion of original jurisdiction has been preserved to
the Supreme Court, and the rest consigned to the subordinate
tribunals; that the Supreme Court will possess an appellate
jurisdiction, both as to law and fact, in all cases referred to
them, both subject to any exceptions and regulations which may be
thought advisable; that this appellate jurisdiction does, in no
case, abolish the trial by jury; and that an ordinary degree of
prudence and integrity in the national councils will insure us solid
advantages from the establishment of the proposed judiciary, without
exposing us to any of the inconveniences which have been predicted
from that source.
- PUBLIUS
NO 82: A Further View of the Judicial Department
in Reference to Some Miscellaneous Questions
by Alexander Hamilton
-
THE erection of a new government, whatever care or wisdom may
distinguish the work, cannot fail to originate questions of
intricacy and nicety; and these may, in a particular manner, be
expected to flow form the establishment of a constitution founded upon
the total or partial incorporation of a number of distinct
sovereignties. 'T is time only that can mature and perfect so compound
a system, can liquidate the meaning of all the parts, and can adjust
them to each other in a harmonious and consistent WHOLE.
Such questions, accordingly, have arisen upon the plan proposed by
the convention, and particularly concerning the judiciary
department. The principal of these respect the situation of the
State courts in regard to those causes which are to be submitted to
federal jurisdiction. Is this to be exclusive, or are those courts
to possess a concurrent jurisdiction? If the latter, in what
relation will they stand to the national tribunals? These are
inquiries which we meet with in the mouths of men of sense, and
which are certainly entitled to attention.
The principles established in a former paper *055 teach us that the
States will retain all preexisting authorities which may not be
exclusively delegated to the federal head; and that this exclusive
delegation can only exist in one of three cases: where an exclusive
authority is, in express terms, granted to the Union; or where a
particular authority is granted to the Union, and the exercise of a
like authority is prohibited to the States; or where an authority is
granted to the Union, with which a similar authority in the States
would be utterly incompatible. Though these principles may not apply
with the same force to the judiciary as to the legislative power,
yet I am inclined to think that they are, in the main, just with
respect to the former, as well as the latter. And under this
impression, I shall lay it down as a rule, that the State courts
will retain the jurisdiction they now have, unless it appears to be
taken away in one of the enumerated modes.
The only thing in the proposed Constitution, which wears the
appearance of confining the causes of federal cognizance to the
federal courts, is contained in this passage:- "The JUDICIAL POWER
of the United States shall be vested in one Supreme Court, and in such
inferior courts as the Congress shall from time to time ordain and
establish." This might either be construed to signify, that the
supreme and subordinate courts of the Union should alone have the
power of deciding those causes to which their authority is to
extend; or simply to denote, that the organs of the national judiciary
should be one Supreme Courts, and as many subordinate courts as
Congress should think proper to appoint; or in other words, that the
United States should exercise the judicial power with which they are
to be invested, through one supreme tribunal, and a certain number
of inferior ones, to be instituted by them. The first excludes, the
last admits, the concurrent jurisdiction of the State tribunals; and
as the first would amount to an alienation of State power by
implication, the last appears to me the most natural and the most
defensible construction.
But this doctrine of concurrent jurisdiction is only clearly
applicable to those descriptions of causes of which the State courts
have previous cognizance. It is not equally evident in relation to
cases which may grow out of, and be peculiar to, the Constitution to
be established; for not to allow the State courts a right of
jurisdiction in such cases, can hardly be considered as the
abridgement of a preexisting authority. I mean not therefore to
contend that the United States, in the course of legislation upon
the objects intrusted to their direction, may not commit the
decision or causes arising upon a particular regulation to the federal
courts solely, if such a measure should be deemed expedient; but I
hold that the State courts will be divested of no part of their
primitive jurisdiction, further than may relate to an appeal; and I am
even of opinion that in every case in which they were not expressly
excluded by the future acts of the national legislature, they will
of course take cognizance of the causes to which those acts may give
birth. This I infer from the nature of judiciary power, and from the
general genius of the system. The judiciary power of every
government looks beyond its own local or municipal laws, and in
civil cases lays hold of all subjects of litigation between parties
within its jurisdiction, though the causes of dispute are relative
to the laws of the most distant part of the globe. Those of Japan, not
less than of New York, may furnish the objects of legal discussion
to our courts. When in addition to this we consider the State
governments and the national governments, as they truly are, in the
light of kindred systems, and as parts of ONE WHOLE, the inference
seems to be conclusive, that the State courts would have a
concurrent jurisdiction in all cases arising under the laws of the
Union, where it was not expressly prohibited.
Here another question occurs: What relation would subsist between
the national and State courts in these instances of concurrent
jurisdiction? I answer, that an appeal would certainly lie from the
latter, to the Supreme Court of the United States. The Constitution in
direct terms gives an appellate jurisdiction to the Supreme Court in
all the enumerated cases of federal cognizance in which it is not to
have an original one, without a single expression to confine its
operation to the inferior federal courts. The objects of appeal, not
the tribunals from which it is to be made, are alone contemplated.
From this circumstance, and from the reason of the thing, it ought
to be construed to extend to the State tribunals. Either this must
be the case, or the local courts must be excluded from a concurrent
jurisdiction in matters of national concern, else the judiciary
authority of the Union may be eluded at the pleasure of every
plaintiff or prosecutor. Neither of these consequences ought,
without evident necessity, to be involved; the latter would be
entirely inadmissible, as it would defeat some of the most important
and avowed purposes of the proposed government, and would
essentially embarrass its measures. Nor do I perceive any foundation
for such a supposition. Agreeably to the remark already made, the
national and State systems are to be regarded as ONE WHOLE. The courts
of the latter will of course be natural auxiliaries to the execution
of the laws of the Union, and an appeal from them will as naturally
lie to that tribunal which is destined to unite and assimilate the
principles of national justice and the rules of national decisions.
The evident aim of the plan of the convention is, that all the
causes of the specified classes shall, for weighty public reasons,
receive their original or final determination in the courts of the
Union. To confine, therefore, the general expressions giving appellate
jurisdiction to the Supreme Court, to appeals from the subordinate
federal courts, instead of allowing their extension to the State
Courts, would be to abridge the latitude of the terms, in subversion
of the intent, contrary to every sound rule of interpretation.
But could an appeal be made to lie from the State courts to the
subordinate federal judicatories? This is another of the questions
which have been raised, and of greater difficulty than the former. The
following considerations countenance the affirmative. The plan of
the convention, in the first place, authorizes the national
legislature "to constitute tribunals inferior to the Supreme
Court." *056 It declares, in the next place, that "the JUDICIAL POWER
of the United States shall be vested in one Supreme Court, and in such
inferior courts as Congress shall ordain and establish"; and it then
proceeds to enumerate the cases to which this judicial power shall
extend. It afterwards divides the jurisdiction of the Supreme Court
into original and appellate, but gives no definition of that of the
subordinate courts. The only outlines described for them, are that
they shall be "inferior to the Supreme Court," and that they shall not
exceed the specified limits of the federal judiciary. Whether their
authority shall be original or appellate, or both, is not declared.
All this seems to be left to the discretion of the legislature. And
this being the case, I perceive at present no impediment to the
establishment of an appeal from the State courts to the subordinate
national tribunals; and many advantages attending the power of doing
it maybe imagined. It would diminish the motives to the multiplication
of federal courts, and would admit of arrangements calculated to
contract the appellate jurisdiction of the Supreme Court. The State
tribunals may then be left with a more entire charge of federal
causes; and appeals, in most cases in which they may be deemed proper,
instead of being carried to the Supreme Court, may be made to lie from
the State courts to district courts of the Union.
- PUBLIUS
NO 83: A Further View of the Judicial Department
in Relation to the Trial by Jury
by Alexander Hamilton
-
THE objection to the plan of the convention, which has met with most
success in this State, and perhaps in several of the other States,
is that relative to the want of a constitutional provision for the
trial by jury in civil cases. The disingenuous form in which this
objection is usually stated has been repeatedly adverted to and
exposed, but continues to be pursued in all the conversations and
writings of the opponents of the plan. The mere silence of the
Constitution in regard to civil causes, is represented as an abolition
of the trial by jury, and the declamations to which it has afforded
a pretext are artfully calculated to induce a persuasion that this
pretended abolition is complete and universal, extending not only to
every species of civil, but even to criminal, causes. To argue with
respect to the latter would, however, be as vain and fruitless as to
attempt the serious proof of the existence of matter, or to
demonstrate any of those propositions which, by their own internal
evidence, force conviction, when expressed in language adapted to
convey their meaning.
With regard to civil causes, subtleties almost too contemptible
for refutation have been employed to countenance the surmise that a
thing which is only not provided for, is entirely abolished. Every man
of discernment must at once perceive the wide difference between
silence and abolition. But as the inventors of this fallacy have
attempted to support it by certain legal maxims of interpretation,
which they have perverted from their true meaning, it may not be
wholly useless to explore the ground they have taken.
The maxims on which they rely are of this nature: "A specification
of particulars is an exclusion of generals"; or, "The expression of
one thing is the exclusion of another." Hence, say they, as the
Constitution as established the trial by jury in criminal cases, and
is silent in respect to civil, this silence is an implied
prohibition of trial by jury in regard to the latter.
The rules of legal interpretation are rules of common-sense, adopted
by the courts in the construction of the laws. The true test,
therefore, of a just application of them is its conformity to the
source from which they are derived. This being the case, let me ask if
it is consistent with common-sense to suppose that a provision
obliging the legislative power to commit the trial of criminal
causes to juries, is a privation of its right to authorize or permit
that mode of trial in other cases? Is it natural to suppose, that a
command to do one thing is a prohibition to the doing of another,
which there was a previous power to do, and which is not
incompatible with the thing commanded to be done? If such a
supposition would be unnatural and unreasonable, it cannot be rational
to maintain that an injunction of the trial by jury in certain cases
is an interdiction of it in others.
A power to constitute courts is a power to prescribe the mode of
trial; and consequently, if nothing was said in the Constitution on
the subject of juries, the legislature would be at liberty either to
adopt that institution or to let it alone. This discretion, in
regard to criminal causes, is abridged by the express injunction of
trial by jury in all such cases; but it is, of course, left at large
in relation to civil causes, there being a total silence on this head.
The specification of an obligation to try all criminal causes in a
particular mode, excludes indeed the obligation or necessity of
employing the same mode in civil causes, but does not abridge the
power of the legislature to exercise that mode if it should be thought
proper. The pretence, therefore, that the national legislature would
not be at full liberty to submit all the civil causes of federal
cognizance to the determination of juries, is a pretence destitute
of all just foundation.
From these observations this conclusion results: that the trial by
jury in civil cases would not be abolished; and that the use attempted
to be made of the maxims which have been quoted, is contrary to reason
and common-sense, and therefore not admissible. Even if these maxims
had a precise technical sense, corresponding with the idea of those
who employ them upon the present occasion, which, however, is not
the case, they would still be inapplicable to a constitution of
government. In relation to such a subject, the natural and obvious
sense of its provisions, apart from any technical rules, is the true
criterion of construction.
Having now seen that the maxims relied upon will not bear the use
made of them, let us endeavor to ascertain their proper use and true
meaning. This will be best done by examples. The plan of the
convention declares that the power of Congress, or, in other words, of
the national legislature, shall extend to certain enumerated cases.
This specification of particulars evidently excludes all pretension to
a general legislative authority, because an affirmative grant of
special powers would be absurd, as well as useless, if a general
authority was intended.
In like manner the judicial authority of the federal judicatures
is declared by the Constitution to comprehend certain cases
particularly specified. The expression of those cases marks the
precise limits, beyond which the federal courts cannot extend their
jurisdiction, because the objects of their cognizance being
enumerated, the specification would be nugatory if it did not
exclude all ideas of more extensive authority.
These examples are sufficient to elucidate the maxims which have
been mentioned, and to designate the manner in which they should be
used. But that there may be no misapprehension upon this subject, I
shall add one case more, to demonstrate the proper use of these
maxims, and the abuse which has been made of them.
Let us suppose that by the laws of this State a married woman was
incapable of conveying her estate, and that the legislature,
considering this as an evil, should enact that she might dispose of
her property by deed executed in the presence of a magistrate. In such
a case there can be no doubt but the specification would amount to
an exclusion of any other mode of conveyance, because the woman having
no previous power to alienate her property, the specification
determines the particular mode which she is, for that purpose, to
avail herself of. But let us further suppose that in a subsequent part
of the same act it should be declared that no woman should dispose
of any estate of a determinate value without the consent of three of
her nearest relations, signified by their signing the deed; could it
be inferred from this regulation that a married woman might not
procure the approbation of her relations to a deed for conveying
property of inferior value? The position is too absurd to merit a
refutation, and yet this is precisely the position which those must
establish who contend that the trial by juries in civil cases is
abolished, because it is expressly provided for in cases of a criminal
nature.
From these observations it must appear unquestionably true, that
trial by jury is in no case abolished by the proposed Constitution,
and it is equally true, that in those controversies between
individuals in which the great body of the people are likely to be
interested, that institution will remain precisely in the same
situation in which it is placed by the State constitutions, and will
be in no degree altered or influenced by the adoption of the plan
under consideration. The foundation of this assertion is, that the
national judiciary will have no cognizance of them, and of course they
will remain determinable as heretofore by the State courts only, and
in the manner which the State constitutions and laws prescribe. All
land causes, except where claims under the grants of different
States come into question, and all other controversies between the
citizens of the same State, unless where they depend upon positive
violations of the articles of union, by acts of the State
legislatures, will belong exclusively to the jurisdiction of the State
tribunals. Add to this, that admiralty causes, and almost all those
which are of equity jurisdiction, are determinable under our own
government without the intervention of a jury, and the inference
from the whole will be, that this institution, as it exists with us at
present, cannot possibly be affected to any great extent by the
proposed alteration in our system of government.
The friends and adversaries of the plan of the convention, if they
agree in nothing else, concur at least in the value they set upon
the trial by jury; or if there is any difference between them it
consists in this: the former regard it as a valuable safeguard to
liberty; the latter represent it as the very palladium of free
government. For my own part, the more the operation of the institution
has fall under my observation, the more reason I have discovered for
holding it in high estimation; and it would be altogether
superfluous to examine to what extent it deserves to be esteemed
useful or essential in a representative republic, or how much more
merit it may be entitled to, as a defence against the oppressions of
an hereditary monarch, than as a barrier to the tyranny of popular
magistrates in a popular government. Discussions of this kind would be
more curious than beneficial, as all are satisfied of the utility of
the institution, and of its friendly aspect to liberty. But I must
acknowledge that I cannot readily discern the inseparable connection
between the existence of liberty, and the trial by jury in civil
cases. Arbitrary impeachments, arbitrary methods of prosecuting
pretended offences, and arbitrary punishments upon arbitrary
convictions, have ever appeared to me to be the great engines of
judicial despotism; and these have all relation to criminal
proceedings. The trial by jury in criminal cases, aided by the
habeas corpus act, seems therefore to be alone concerned in the
question. And both of these are provided for, in the most ample
manner, in the plan of the convention.
It has been observed, that trial by jury is a safeguard against an
oppressive exercise of the power of taxation. This observation
deserves to be canvassed.
It is evident that it can have no influence upon the legislature, in
regard to the amount of taxes to be laid, to the objects upon which
they are to be imposed, or to the rule by which they are to be
apportioned. If it can have any influence, therefore, it must be
upon the mode of collection, and the conduct of the officer
intrusted with the execution of the revenue laws.
As to the mode of collection in this State, under our own
Constitution, the trial by jury is in most cases out of use. The taxes
are usually levied by the more summary proceeding of distress and
sale, as in cases of rent. And it is acknowledged on all hands, that
this is essential to the efficacy of the revenue laws. The dilatory
course of a trial at law to recover the taxes imposed on
individuals, would neither suit the exigencies of the public nor
promote the convenience of the citizens. It would often occasion an
accumulation of costs, more burdensome than the original sum of the
tax to be levied.
And as to the conduct of the officers of the revenue, the
provision in favor of trial by jury in criminal cases, will afford the
security aimed at. Wilful abuses of a public authority to the
oppression of the subject, and every species of official extortion,
are offences against the government, for which the persons who
commit them may be indicted and punished according to the
circumstances of the case.
The excellence of the trial by jury in civil cases appears to depend
on circumstances foreign to the preservation of liberty. The strongest
argument in its favor is, that it is a security against corruption. As
there is always more time and better opportunity to tamper with a
standing body of magistrates than with a jury summoned for the
occasion, there is room to suppose that a corrupt influence would more
easily find its way to the former than to the latter. The force of
this consideration is, however, diminished by others. The sheriff, who
is the summoner of ordinary juries, and the clerks of courts, who have
the nomination of special juries, are themselves standing officers,
and, acting individually, may be supposed more accessible to the touch
of corruption than the judges, who are a collective body. It is not
difficult to see, that it would be in the power of those officers to
select jurors who would serve the purpose of the party as well as a
corrupted bench. In the next place, it may fairly be supposed, that
there would be less difficulty in gaining some of the jurors
promiscuously taken from the public mass, than in gaining men who
had been chosen by the government for their probity and good
character. But making every deduction for these considerations, the
trial by jury must still be a valuable check upon corruption. It
greatly multiplies the impediments to its success. As matters now
stand, it would be necessary to corrupt both court and jury; for where
the jury have gone evidently wrong, the court will generally grant a
new trial, and it would be in most cases of little use to practice
upon the jury, unless the court could be likewise gained. Here then is
a double security; and it will readily be perceived that this
complicated agency tends to preserve the purity of both
institutions. By increasing the obstacles to success, it discourages
attempts to seduce the integrity of either. The temptations to
prostitution which the judges might have to surmount, must certainly
be much fewer, while the cooperation of a jury is necessary, than they
might be, if they had themselves the exclusive determination of all
causes.
Notwithstanding, therefore, the doubts I have expressed, as to the
essentiality of trial by jury in civil cases to liberty, I admit
that it is in most cases, under proper regulations, an excellent
method of determining questions of property; and that on this
account alone it would be entitled to a constitutional provision in
its favor if it were possible to fix the limits within which it
ought to be comprehended. There is, however, in all cases, great
difficulty in this; and men not blinded by enthusiasm must be sensible
that in a federal government, which is a composition of societies
whose ideas and institutions in relation to the matter materially vary
from each other, that difficulty must be not a little augmented. For
my own part, at every new view I take of the subject, I become more
convinced of the reality of the obstacles which, we are
authoritatively informed, prevented the insertion of a provision on
this head in the plan of the convention.
The great difference between the limits of the jury trial in
different States is not generally understood; and as it must have
considerable influence on the sentence we ought to pass upon the
omission complained of in regard to this point, an explanation of it
is necessary. In this State, our judicial establishments resemble,
more nearly than in any other, those of Great Britain. We have
courts of common law, courts of probates (analogous in certain matters
to the spiritual courts in England), a court of admiralty, and a court
of chancery. In the courts of common law only, the trial by jury
prevails, and this with some exceptions. In all the others a single
judge presides, and proceeds in general either according to the course
of the canon or civil law, without the aid of a jury. *057 In New
Jersey, there is a court of chancery which proceeds like ours, but
neither courts of admiralty nor of probates, in the sense in which
these last are established with us. In that State the courts of common
law have the cognizance of those causes which with us are determinable
in the courts of admiralty and of probates, and of course the jury
trial is more extensive in New Jersey than in New York. In
Pennsylvania, this is perhaps still more the case, for there is no
court of chancery in that State, and its common-law courts have equity
jurisdiction. It has a court of admiralty, but none of probates, at
least on the plan of ours. Delaware has in these respects imitated
Pennsylvania. Maryland approaches more nearly to New York, as does
also Virginia, except that the latter has a plurality of
chancellors. North Carolina bears most affinity to Pennsylvania; South
Carolina to Virginia. I believe, however, that in some of those States
which have distinct courts of admiralty, the causes depending in
them are triable by juries. In Georgia there are none but common-law
courts, and an appeal of course lies from the verdict of one jury to
another, which is called a special jury, and for which a particular
mode of appointment is marked out. In Connecticut, they have no
distinct courts either of chancery or of admiralty, and their courts
of probates have no jurisdiction of causes. Their common-law courts
have admiralty and, to a certain extent, equity jurisdiction. In cases
of importance, their General Assembly is the only court of chancery.
In Connecticut, therefore, the trial by jury extends in practice
further than in any other State yet mentioned. Rhode Island is, I
believe, in this particular, pretty much in the situation of
Connecticut. Massachusetts and New Hampshire, in regard to the
blending of law, equity, and admiralty jurisdictions, are in a similar
predicament. In the four Eastern States, the trial by jury not only
stands upon a broader foundation than in the other States, but it is
attended with a peculiarity unknown, in its full extent, to any of
them. There is an appeal of course from one jury to another, till
there have been two verdicts out of three on one side.
From this sketch it appears that there is a material diversity, as
well in the modification as in the extent of the institution of
trial by jury in civil cases, in the several States; and from this
fact these obvious reflections flow: first, that no general rule could
have been fixed upon by the convention which would have corresponded
with the circumstances of all the States; and secondly, that more or
at least as much might have been hazarded by taking the system of
any one State for a standard, as by omitting a provision altogether
and leaving the matter, as has been done, to legislative regulation.
The propositions which have been made for supplying the omission
have rather served to illustrate than to obviate the difficulty of the
thing. The minority of Pennsylvania have proposed this mode of
expression for the purpose- "Trial by jury shall be as heretofore"-
and this I maintain would be senseless and nugatory. The United
States, in their united or collective capacity, are the OBJECT to
which all general provisions in the Constitution must necessarily be
construed to refer. Now it is evident that though trial by jury,
with various limitations, is known in each State individually, yet
in the United States, as such, it is at this time altogether
unknown, because the present federal government has no judiciary power
whatever; and consequently there is no proper antecedent or previous
establishment to which the term heretofore could relate. It would
therefore be destitute of a precise meaning, and inoperative from
its uncertainty.
As, on the one hand, the form of the provision would not fulfil
the intent of its proposers, so, on the other, if I apprehend that
intent rightly, it would be in itself inexpedient. I presume it to be,
that causes in the federal courts should be tried by jury, if, in
the State where the courts sat, that mode of trial would obtain in a
similar case in the State courts; that is to say, admiralty causes
should be tried in Connecticut by a jury, in New York without one. The
capricious operation of so dissimilar a method of trial in the same
cases, under the same government, is of itself sufficient to indispose
every well-regulated judgment towards it. Whether the cause should
be tried with or without a jury, would depend, in a great number of
cases, on the accidental situation of the court and parties.
But this is not, in my estimation, the greatest objection. I feel
a deep and deliberate conviction that there are many cases in which
the trial by jury is an ineligible one. I think it so particularly
in cases which concern the public peace with foreign nations- that is,
in most cases where the question turns wholly on the laws of
nations. Of this nature, among others, are all prize causes. Juries
cannot be supposed competent to investigations that require a thorough
knowledge of the laws and usages of nations; and they will sometimes
be under the influence of impressions which will not suffer them to
pay sufficient regard to those considerations of public policy which
ought to guide their inquiries. There would of course be always danger
that the rights of other nations might be infringed by their
decisions, so as to afford occasions of reprisal and war. Though the
proper province of juries be to determine matters of fact, yet in most
cases legal consequences are complicated with fact in such a manner as
to render a separation impracticable.
It will add great weight to this remark, in relation to prize
causes, to mention that the method of determining them has been
thought worthy of particular regulation in various treaties between
different powers of Europe, and that, pursuant to such treaties,
they are determinable in Great Britain, in the last resort, before the
king himself, in his privy council, where the fact, as well as the
law, undergoes a re-examination. This alone demonstrates the
impolicy of inserting a fundamental provision in the Constitution
which would make the State systems a standard for the national
government in the article under consideration, and the danger of
encumbering the government with any constitutional provisions the
propriety of which is not indisputable.
My convictions are equally strong that great advantages result
form the separation of the equity from the law jurisdiction, and
that the causes which belong to the former would be improperly
committed to juries. The great and primary use of a court of equity is
to give relief in extraordinary cases, which are exceptions *058 to
general rules. To unite the jurisdiction of such cases with the
ordinary jurisdiction, must have a tendency to unsettle the general
rules, and to subject every case that arises to a special
determination; while a separation of the one from the other has the
contrary effect of rendering one a sentinel over the other, and of
keeping each within the expedient limits. Besides this, the
circumstances that constitute cases proper for courts of equity are in
many instances so nice and intricate, that they are incompatible
with the genius of trials by jury. They require often such long,
deliberate, and critical investigation as would be impracticable to
men called from their occupations, and obliged to decide before they
were permitted to return to them. The simplicity and expedition
which form the distinguishing characters of this mode of trial require
that the matter to be decided should be reduced to some single and
obvious point; while the litigations usual in chancery frequently
comprehend a long train of minute and independent particulars.
It is true that the separation of the equity from the legal
jurisdiction is peculiar to the English system of jurisprudence: which
is the model that has been followed in several of the States. But it
is equally true that the trial by jury has been unknown in every
case in which they have been united. And the separation is essential
to the preservation of that institution in its pristine purity. The
nature of a court of equity will readily permit the extension of its
jurisdiction to matters of law; but it is not a little to be
suspected, that the attempt to extend the jurisdiction of the courts
of law to matters of equity will not only be unproductive of the
advantages which may be derived from courts of chancery, on the plan
upon which they are established in this State, but will tend gradually
to change the nature of the courts of law, and to undermine the
trial by jury, by introducing questions too complicated for a decision
in that mode.
These appeared to be conclusive reasons against incorporating the
systems of all the States, in the formation of the national judiciary,
according to what maybe conjectured to have been the attempt of the
Pennsylvania minority. Let us now examine how far the proposition of
Massachusetts is calculated to remedy the supposed defect.
It is in this form: "In civil actions between citizens of
different States, every issue of fact, arising in actions at common
law, may be tried by a jury if the parties, or either of them, request
it."
This, at best, is a proposition confined to one description of
causes; and the inference is fair, either that the Massachusetts
convention considered that as the only class of federal causes, in
which the trial by jury would be proper; or that if desirous of a more
extensive provision, they found it impracticable to devise one which
would properly answer the end. If the first, the omission of a
regulation respecting so partial an object can never be considered
as a material imperfection in the system. If the last, it affords a
strong corroboration of the extreme difficulty of the thing.
But this is not all: if we advert to the observations already made
respecting the courts that subsist in the several States of the Union,
and the different powers exercised by them, it will appear that
there are no expressions more vague and indeterminate than those which
have been employed to characterize that species of causes which it
is intended shall be entitled to a trial by jury. In this State, the
boundaries between actions at common law and actions of equitable
jurisdiction, are ascertained in conformity to the rules which prevail
in England upon that subject. In many of the other States the
boundaries are less precise. In some of them, every cause is to be
tried in a court of common law, and upon that foundation every
action may be considered as an action at common law, to be
determined by a jury, if the parties, or either of them, choose it.
Hence the same irregularity and confusion would be introduced by a
compliance with this proposition, that I have already noticed as
resulting from the regulation proposed by the Pennsylvania minority.
In one State a cause would receive its determination from a jury, if
the parties, or either of them, requested it; but in another State,
a cause exactly similar to the other, must be decided without the
intervention of a jury, because the State judicatories varied as to
common-law jurisdiction.
It is obvious, therefore, that the Massachusetts proposition, upon
this subject cannot operate as a general regulation, until some
uniform plan, with respect to the limits of common-law and equitable
jurisdictions, shall be adopted by the different States. To devise a
plan of that kind, is a task arduous in itself, and which it would
require much time and reflection to mature. It would be extremely
difficult, if not impossible, to suggest any general regulation that
would be acceptable to all the States in the Union, or that would
perfectly quadrate with the several State institutions.
It may be asked, Why could not a reference have been made to the
constitution of this State, taking that, which is allowed by me to
be a good one, as a standard for the United States? I answer that it
is not very probable the other States would entertain the same opinion
of our institutions as we do ourselves. It is natural to suppose
that they are hitherto more attached to their own, and that each would
struggle for the preference. If the plan of taking one State as a
model for the whole had been thought of in the convention, it is to be
presumed that the adoption of it in that body would have been rendered
difficult by the predilection of each representation in favor of its
own government; and it must be uncertain which of the States would
have been taken as the model. It has been shown that many of them
would be improper ones. And I leave it to conjecture, whether under
all circumstances, it is most likely that New York, or some other
State, would have been preferred. But admit that a judicious selection
could have been effected in the convention, still there would have
been great danger of jealousy and disgust in the other States, at
the partiality which had been shown to the institution of one. The
enemies of the plan would have been furnished with a fine pretext
for raising a host of local prejudices against it, which perhaps might
have hazarded, in no inconsiderable degree, its final establishment.
To avoid the embarrassments of a definition of the cases which the
trial by jury ought to embrace, it is sometimes suggested by men of
enthusiastic tempers, that a provision might have been inserted for
establishing it in all cases whatsoever. For this, I believe, no
precedent is to be found in any member of the Union; and the
considerations which have been stated in discussing the proposition of
the minority of Pennsylvania, must satisfy every sober mind that the
establishment of the trial by jury in all cases would have been an
unpardonable error in the plan.
In short, the more it is considered the more arduous will appear the
task of fashioning a provision in such a form as not to express too
little to answer the purpose, or too much to be advisable; or which
might not have opened other sources of opposition to the great and
essential object of introducing a firm national government.
I cannot but persuade myself, on the other hand, that the
different lights in which the subject has been placed in the course of
these observations, will go far towards removing in candid minds,
the apprehensions they may have entertained on the point. They have
tended to show that the security of liberty is materially concerned
only in the trial by jury in criminal cases, which is provided for
in the most ample manner in the plan of the convention; that even in
far the greatest proportion of civil cases, and those in which the
great body of the community is interested, that mode of trial will
remain in its full force, as established in the State constitutions,
untouched and unaffected by the plan of the convention; that it is
in no case abolished *059 by that plan; and that there are great if
not insurmountable difficulties in the way of making any precise and
proper provision for it in a Constitution for the United States.
The best judges of the matter will be the least anxious for a
constitutional establishment of the trial by jury in civil cases,
and will be the most ready to admit that the changes which are
continually happening in the affairs of society may render a different
mode of determining questions of property preferable in many cases
in which that mode of trial now prevails. For my part, I acknowledge
myself to be convinced that even in this State it might be
advantageously extended to some cases to which it does not at
present apply, and might as advantageously be abridged in others. It
is conceded by all reasonable men that it ought not to obtain in all
cases. The examples of innovations which contract its ancient
limits, as well in these States as in Great Britain, afford a strong
presumption that its former extent has been found inconvenient, and
give room to suppose that future experience may discover the propriety
and utility of other exceptions. I suspect it to be impossible in
the nature of the thing to fix the salutary point at which the
operation of the institution ought to stop, and this is with me a
strong argument for leaving the matter to the discretion of the
legislature.
This is now clearly understood to be the case in Great Britain,
and it is equally so in the State of Connecticut; and yet it may be
safely affirmed that more numerous encroachments have been made upon
the trial by jury in this State since the Revolution, though
provided for by a positive article of our constitution, than has
happened in the same time either in Connecticut or Great Britain. It
may be added that these encroachments have generally originated with
the men who endeavor to persuade the people they are the warmest
defenders of popular liberty, but who have rarely suffered
constitutional obstacles to arrest them in a favorite career. The
truth is that the general GENIUS of a government is all that can be
substantially relied upon for permanent effects. Particular
provisions, though not altogether useless, have far less virtue and
efficacy than are commonly ascribed to them; and the want of them will
never be, with men of sound discernment, a decisive objection to any
plan which exhibits the leading characters of a good government.
It certainly sounds not a little harsh and extraordinary to affirm
that there is no security for liberty in a Constitution which
expressly establishes the trial by jury in criminal cases, because
it does not do it in civil also; while it is a notorious fact that
Connecticut, which has been always regarded as the most popular
State in the Union, can boast of no constitutional provision for
either.
- PUBLIUS
NO 84: Concerning Several Miscellaneous Objections
by Alexander Hamilton
-
IN THE course of the foregoing review of the Constitution, I have
taken notice of, and endeavored to answer most of the objections which
have appeared against it. There, however, remain a few which either
did not fall naturally under any particular head or were forgotten
in their proper places. These shall now be discussed; but as the
subject has been drawn into great length, I shall so far consult
brevity as to compromise all my observations on these miscellaneous
points in a single paper.
The most considerable of the remaining objections is that the plan
of the convention contains no bill of rights. Among other answers
given to this, it has been upon different occasions remarked that
the constitutions of several of the States are in a similar
predicament. I add that New York is of the number. And yet the
opposers of the new system, in this State, who profess an unlimited
admiration for its constitution, are among the most intemperate
partisans of a bill of rights. To justify their zeal in this matter,
they allege two things: one is that, though the constitution of New
York has no bill of rights prefixed to it, yet it contains, in the
body of it, various provisions in favor of particular privileges and
rights, which, in substance, amount to the same thing; the other is,
that the Constitution adopts, in their full extent, the common and
statute law of Great Britain, by which many other rights, not
expressed in it, are equally secured.
To the first I answer, that the Constitution proposed by the
convention contains, as well as the constitution of this State, a
number of such provisions.
Independent of those which relate to the structure of the
government, we find the following: Article I, section 3, clause 7-
"Judgment in cases of impeachment shall not extend further than to
removal from office, and disqualification to hold and enjoy any office
of honor, trust, or profit under the United States; but the party
convicted shall, nevertheless, be liable and subject to indictment,
trial, judgment, and punishment according to law." Section 9, of the
same article, clause 2- "The privilege of the writ of habeas corpus
shall not be suspended, unless when in cases of rebellion or
invasion the public safety may require it." Clause 3- "No bill of
attainder or ex post facto law shall be passed." Clause 7- "No title
of nobility shall be granted by the United States; and no person
holding any office of profit or trust under them, shall, without the
consent of the Congress, accept of any present, emolument, office,
or title of any kind whatever, from any king, prince, or foreign
state." Article 3, section 2, clause 3- "The trial of all crimes,
except in cases of impeachment, shall be by jury; and such trial shall
be held in the State where the said crimes shall have been
committed; but when not committed within any State, the trial shall be
at such place or places as the Congress may by law have directed."
Section 3, of the same article- "Treason against the United States
shall consist only in levying war against them, or in adhering to
their enemies, giving them aid and comfort. No person shall be
convicted of treason, unless on the testimony of two witnesses to
the same overt act, or on confession in open court." And clause 3,
of the same section- "The Congress shall have power to declare the
punishment of treason; but no attainder of treason shall work
corruption of blood, or forfeiture, except during the life of the
person attainted."
It may well be a question, whether these are not, upon the whole, of
equal importance with any which are to be found in the constitution of
this State. The establishment of the writ of habeas corpus, the
prohibition of ex post facto laws, and of TITLES OF NOBILITY, to which
we have no corresponding provision in our Constitution, are perhaps
greater securities to liberty and republicanism than any it
contains. The creation of crimes after the commission of the fact, or,
in other words, the subjecting of men to punishment for things
which, when they were done, were breaches of no law, and the
practice of arbitrary imprisonments, have been, in all ages, the
favorite and most formidable instruments of tyranny. The
observations of the judicious Blackstone, *060 in reference to the
latter, are well worthy of recital: "To bereave a man of life, [says
he,] or by violence to confiscate his estate, without accusation or
trial, would be so gross and notorious an act of despotism, as must at
once convey the alarm of tyranny throughout the whole nation; but
confinement of the person, by secretly hurrying him to jail, where his
sufferings are unknown or forgotten, is a less public, a less
striking, and therefore a more dangerous engine of arbitrary
government." And as a remedy for this fatal evil he is everywhere
peculiarly emphatical in his encomiums on the habeas corpus act, which
in one place he calls "the BULWARK of the British Constitution." *061
Nothing need be said to illustrate the importance of the prohibition
of titles of nobility. This may truly be denominated the
corner-stone of republican government; for so long as they are
excluded, there can never be serious danger that the government will
be any other than that of the people.
To the second- that is, to the pretended establishment of the common
and statute law by the constitution, I answer, that they are expressly
made subject "to such alterations and provisions as the legislature
shall from time to time make concerning the same." They are
therefore at any moment liable to repeal by the ordinary legislative
power, and of course have no constitutional sanction. The only use
of the declaration was to recognize the ancient law, and to remove
doubts which might have been occasioned by the Revolution. This
consequently can be considered as no part of a declaration of
rights, which under our constitutions must be intended as
limitations of the power of the government itself.
It has been several times truly remarked that bills of rights are,
in their origin, stipulations between kings and their subjects,
abridgements of prerogative in favor of privilege, reservations of
rights not surrendered to the prince. Such was MAGNA CHARTA,
obtained by the barons, sword in hand, from King John. Such were the
subsequent confirmations of that charter by succeeding princes. Such
was the Petition of Right assented to by Charles I., in the
beginning of his reign. Such, also, was the Declaration of Right
presented by the Lords and Commons to the Prince of Orange in 1688,
and afterwards thrown into the form of an act of parliament called the
Bill of Rights. It is evident, therefore, that, according to their
primitive signification, they have no application to constitutions,
professedly founded upon the power of the people, and executed by
their immediate representatives and servants. Here, in strictness, the
people surrender nothing; and as they retain every thing they have
no need of particular reservations. "WE, THE PEOPLE of the United
States, to secure the blessings of liberty to ourselves and our
posterity, do ordain and establish this Constitution for the United
States of America." Here is a better recognition of popular rights,
than volumes of those aphorisms which make the principal figure in
several of our State bills of rights, and which would sound much
better in a treatise of ethics than in a constitution of government.
But a minute detail of particular rights is certainly far less
applicable to a Constitution like that under consideration, which is
merely intended to regulate the general political interests of the
nation, than to a constitution which has the regulation of every
species of personal and private concerns. If, therefore, the loud
clamors against the plan of the convention, on this score, are well
founded, no epithets of reprobation will be too strong for the
constitution of this State. But the truth is, that both of them
contain all which, in relation to their objects, is reasonably to be
desired.
I go further, and affirm that bills of rights, in the sense and to
the extent in which they are contended for, are not only unnecessary
in the proposed Constitution, but would even be dangerous. They
would contain various exceptions to powers not granted; and, on this
very account, would afford a colorable pretext to claim more than were
granted. For why declare that things shall not be done which there
is no power to do? Why, for instance, should it be said that the
liberty of the press shall not be restrained, when no power is given
by which restrictions may be imposed? I will not contend that such a
provision would confer a regulating power; but it is evident that it
would furnish, to men disposed to usurp, a plausible pretence for
claiming that power. They might urge with a semblance of reason,
that the Constitution ought not to be charged with the absurdity of
providing against the abuse of an authority which was not given, and
that the provision against restraining the liberty of the press
afforded a clear implication, that a power to prescribe proper
regulations concerning it was intended to be vested in the national
government. This may serve as a specimen of the numerous handles which
would be given to the doctrine of constructive powers, by the
indulgence of an injudicious zeal for bills of rights.
On the subject of the liberty of the press, as much as has been
said, I cannot forbear adding a remark or two: in the first place, I
observe, that there is not a syllable concerning it in the
constitution of this State; in the next, I contend, that whatever
has been said about it in that of any other State, amounts to nothing.
What signifies a declaration, that "the liberty of the press shall
be inviolably preserved"? What is the liberty of the press? Who can
give it any definition which would not leave the utmost latitude for
evasion? I hold it to be impracticable; and from this I infer, that
its security, whatever fine declarations may be inserted in any
constitution respecting it, must altogether depend on public
opinion, and on the general spirit of the people and of the
government. *062 And here, after all, as is intimated upon another
occasion, must we seek for the only solid basis of all our rights.
There remains but one other view of this matter to conclude the
point. The truth is, after all the declamations we have heard, that
the Constitution is itself, in every rational sense, and to every
useful purpose, A BILL OF RIGHTS. The several bills of rights in Great
Britain form its Constitution, and conversely the constitution of each
State is its bill of rights. And the proposed Constitution, if
adopted, will be the bill of rights of the Union. Is it one object
of a bill of rights to declare and specify the political privileges of
the citizens in the structure and administration of the government?
This is done in the most ample and precise manner in the plan of the
convention; comprehending various precautions for the public security,
which are not to be found in any of the State constitutions. Is
another object of a bill of rights to define certain immunities and
modes of proceeding, which are relative to personal and private
concerns? This we have seen has also been attended to, in a variety of
cases, in the same plan. Adverting therefore to the substantial
meaning of a bill of rights, it is absurd to allege that it is not
to be found in the work of the convention. it may be said that it does
not go far enough, though it will not be easy to make this appear; but
it can with no propriety be contended that there is no such thing.
It certainly must be immaterial what mode is observed as to the
order of declaring the rights of the citizens, if they are to be found
in any part of the instrument which establishes the government. And
hence it must be apparent, that much of what has been said on this
subject rests merely on verbal and nominal distinctions, entirely
foreign from the substance of the thing.
Another objection which has been made, and which, from the frequency
of its repetition, it is to be presumed is relied on, is of this
nature: "It is improper [say the objectors] to confer such large
powers, as are proposed, upon the national government, because the
seat of that government must of necessity be too remote from many of
the States to admit of a proper knowledge on the part of the
constituent, of the conduct of the representative body." This
argument, if it proves anything, proves that there ought to be no
general government whatever. For the powers which, it seems to be
agreed on all hands, ought to be vested in the Union, cannot be safely
intrusted to a body which is not under every requisite control. But
there are satisfactory reasons to show that the objection is in
reality not well founded. There is in most of the arguments which
relate to distance a palpable illusion of the imagination. What are
the sources of information by which the people in Montgomery County
must regulate their judgment of the conduct of their representatives
in the State legislature? Of personal observation they can have no
benefit. This is confined to the citizens on the spot. They must
therefore depend on the information of intelligent men, in whom they
confide; and how must these men obtain their information? Evidently
from the complexion of public measures, from the public prints, from
correspondences with their representatives, and with other persons who
reside at the place of their deliberations. This does not apply to
Montgomery county only, but to all the counties at any considerable
distance from the seat of government.
It is equally evident that the same sources of information would
be open to the people in relation to the conduct of their
representatives in the general government, and the impediments to a
prompt communication which distance may be supposed to create, will be
overbalanced by the effects of the vigilance of the State governments.
The executive and legislative bodies of each State will be so many
sentinels over the persons employed in every department of the
national administration; and as it will be in their power to adopt and
pursue a regular and effectual system of intelligence, they can
never be at a loss to know the behavior of those who represent their
constituents in the national councils, and can readily communicate the
same knowledge to the people. Their disposition to apprise the
community of whatever may prejudice its interests from another
quarter, may be relied upon, if it were only from the rivalship of
power. And we may conclude with the fullest assurance that the people,
through that channel, will be better informed of the conduct of
their national representatives, than they can be by any means they now
possess of that of their State representatives.
It ought also to be remembered that the citizens who inhabit the
country at and near the seat of government will, in all questions that
affect the general liberty and prosperity, have the same interest with
those who are at a distance, and that they will stand ready to sound
the alarm when necessary, and to point out the actors in any
pernicious project. The public papers will be expeditious messengers
of intelligence to the most remote inhabitants of the Union.
Among the many curious objections which have appeared against the
proposed Constitution, the most extraordinary and the least
colorable is derived from the want of some provision respecting the
debts due to the United States. This has been represented as a tacit
relinquishment of those debts, and as a wicked contrivance to screen
public defaulters. The newspapers have teemed with the most
inflammatory railings on this head; yet there is nothing clearer
than that the suggestion is entirely void of foundation, the offspring
of extreme ignorance or extreme dishonesty. In addition to the remarks
I have made upon the subject in another place, I shall only observe
that as it is a plain dictate of common-sense, so it is also an
established doctrine of political law, that "states neither lose any
of their rights, nor are discharged from any of their obligations,
by a change in the form of their civil government." *063
The last objection of any consequence, which I at present recollect,
turns upon the article of expense. If it were even true, that the
adoption of the proposed government would occasion a considerable
increase of expense, it would be an objection that ought to have no
weight against the plan.
The great bulk of citizens of America are with reason convinced,
that Union is the basis of their political happiness. Men of sense
of all parties now, with few exceptions, agree that it cannot be
preserved under the present system, nor without radical alterations;
that new and extensive powers ought to be granted to the national
head, and that these require a different organization of the federal
government- a single body being an unsafe depositary of such ample
authorities. In conceding all this, the question of expense must be
given up; for it is impossible, with any degree of safety, to narrow
the foundation upon which the system is to stand. The two branches
of the legislature are, in the first instance, to consist of only
sixty-five persons, which is the same number of which Congress,
under the existing Confederation, may be composed. It is true that
this number is intended to be increased; but this is to keep pace with
the progress of the population and resources of the country. It is
evident that a less number would, even in the first instance, have
been unsafe, and that a continuance of the present number would, in
a more advanced stage of population, be a very inadequate
representation of the people.
Whence is the dreaded augmentation of expense to spring? Once source
indicated, is the multiplication of offices under the new
government. Let us examine this a little.
It is evident that the principal departments of the administration
under the present government, are the same which will be required
under the new. There are now a Secretary of War, a Secretary of
Foreign Affairs, a Secretary for Domestic Affairs, a Board of
Treasury, consisting of three persons, a Treasurer, assistants,
clerks, etc. These officers are indispensable under any system, and
will suffice under the new as well as the old. As to ambassadors and
other ministers and agents in foreign countries, the proposed
Constitution can make no other difference than to render their
characters, where they reside, more respectable, and their services
more useful. As to persons to be employed in the collection of the
revenues, it is unquestionably true that these will form a very
considerable addition to the number of federal officers; but it will
not follow that this will occasion an increase of public expense. It
will be in most cases nothing more than an exchange of State for
national officers. In the collection of all duties, for instance,
the persons employed will be wholly of the latter description. The
States individually will stand in no need of any for this purpose.
What difference can it make in point of expense to pay officers of the
customs appointed by the State or by the United States?
Where then are we to seek for those additional articles of expense
which are to swell the account to the enormous size that has been
represented to us? The chief item which occurs to me respects the
support of the judges of the United States. I do not add the
President, because there is now a president of Congress, whose
expenses may not be far, if any thing, short of those which will be
incurred on account of the President of the United States. The support
of the judges will clearly be an extra expense, but to what extent
will depend on the particular plan which may be adopted in regard to
this matter. But upon no reasonable plan can it amount to a sum
which will be an object of material consequence.
Let us now see what there is to counterbalance any extra expense
that may attend the establishment of the proposed government. The
first thing which presents itself is that a great part of the business
which now keeps Congress sitting through the year will be transacted
by the President. Even the management of foreign negotiations will
naturally devolve upon him, according to general principles
concerted with the Senate, and subject to their final concurrence.
Hence it is evident that a portion of the year will suffice for the
session of both the Senate and the House of Representatives; we may
suppose about a fourth for the latter and a third, or perhaps half,
for the former. The extra business of treaties and appointments may
give this extra occupation to the Senate. From this circumstance we
may infer that, until the House of Representatives shall be
increased greatly beyond its present number, there will be a
considerable saving of expense from the difference between the
constant session of the present and the temporary session of the
future Congress.
But there is another circumstance of great importance in the view of
economy. The business of the United States has hitherto occupied the
State legislatures, as well as Congress. The latter has made
requisitions which the former have had to provide for. Hence it has
happened that the sessions of the State legislatures have been
protracted greatly beyond what was necessary for the execution of
the mere local business of the States. More than half their time has
been frequently employed in matters which related to the United
States. Now the members who compose the legislatures of the several
States amount to two thousand and upwards, which number has hitherto
performed what under the new system will be done in the first instance
by sixty-five persons, and probably at no future period by above a
fourth or a fifth of that number. The Congress under the proposed
government will do all the business of the United States themselves,
without the intervention of the State legislatures, who thenceforth
will have only to attend to the affairs of their particular State, and
will not have to sit in any proportion as long as they have heretofore
done. This difference in the time of the sessions of the State
legislatures will be clear gain, and will alone form an article of
saving, which may be regarded as an equivalent for any additional
objects of expense that may be occasioned by the adoption of the new
system.
The result from these observations is that the sources of additional
expense form the establishment of the proposed Constitution are much
fewer than may have been imagined; that they are counterbalanced by
considerable objects of saving; and that while it is questionable on
which side the scale will preponderate, it is certain that a
government less expensive would be incompetent to the purposes of
the Union.
- PUBLIUS
NO 85: Conclusion
by Alexander Hamilton
-
ACCORDING to the formal division of the subject of these papers,
announced in my first number, there would appear still to remain for
discussion two point: "the analogy of the proposed government to
your own State constitution," and "the additional security which its
adoption will afford to republican government, to liberty, and to
property." But these heads have been so fully anticipated and
exhausted in the progress of the work, that it would not scarcely be
possible to do any thing more than repeat, in a more dilated form,
what has been heretofore said, which the advanced stage of the
question, and the time already spent upon it, conspire to forbid.
It is remarkable, that the resemblance of the plan of the convention
to the act which organizes the government of this State holds, not
less with regard to many of the supposed defects, than to the real
excellences of the former. Among the pretended defects are the
re-eligibility of the Executive, the want of a council, the omission
of a formal bill of rights, the omission of a provision respecting the
liberty of the press. These and several others which have been noted
in the course of our inquiries are as much chargeable on the
existing constitution of this State, as on the one proposed for the
Union; and a man must have slender pretensions to consistency, who can
rail at the latter for imperfections which he finds no difficulty in
excusing in the former. Nor indeed can there be a better proof of
the insincerity and affectation of some of the zealous adversaries
of the plan of the convention among us, who profess to be the
devoted admirers of the government under which they live, than the
fury with which they have attacked that plan, for matters in regard to
which our own constitution is equally or perhaps more vulnerable.
The additional securities to republican government, to liberty,
and to property, to be derived from the adoption of the plan under
consideration, consist chiefly in the restraints which the
preservation of the Union will impose on local factions and
insurrections, and on the ambition of powerful individuals in single
States, who may acquire credit and influence enough, from leaders
and favorites, to become the despots of the people; in the
diminution of the opportunities to foreign intrigue, which the
dissolution of the Confederacy would invite and facilitate; in the
prevention of extensive military establishments, which could not
fail to grow out of wars between the States in a disunited
situation; in the express guaranty of a republican form of
government to each; in the absolute and universal exclusion of
titles of nobility; and in the precautions against the repetition of
those practices on the part of the State governments which have
undermined the foundations of property and credit, have planted mutual
distrust in the breasts of all classes of citizens, and have
occasioned an almost universal prostration of morals.
Thus have I, fellow-citizens, executed the task I had assigned to
myself; with what success, your conduct must determine. I trust at
least you will admit that I have not failed in the assurance I gave
you respecting the spirit with which my endeavors should be conducted.
I have addressed myself purely to your judgments, and have
studiously avoided those asperities which are too apt to disgrace
political disputants of all parties, and which have been not a
little provoked by the language and conduct of the opponents of the
Constitution. The charge of a conspiracy against the liberties of
the people, which has been indiscriminately brought against the
advocates of the plan, has something in it too wanton and too
malignant, not to excite the indignation of every man who feels in his
own bosom a refutation of the calumny. The perpetual changes which
have been rung upon the wealthy, the well-born, and the great, have
been such as to inspire the disgust of all sensible men. And the
unwarrantable concealments and misrepresentations which have been in
various ways practiced to keep the truth from the public eye, have
been of a nature to demand the reprobation of all honest men. It is
not impossible that these circumstances may have occasionally betrayed
me into intemperances of expression which I did not intend; it is
certain that I have frequently felt a struggle between sensibility and
moderation; and if the former has in some instances prevailed, it must
be my excuse that it has been neither often nor much.
Let us now pause and ask ourselves whether, in the course of these
papers, the proposed Constitution has not been satisfactorily
vindicated form the aspersions thrown upon it; and whether it has
not been shown to be worthy of the public approbation, and necessary
to the public safety and prosperity. Every man is bound to answer
these questions to himself, according to the best of his conscience
and understanding, and to act agreeably to the genuine and sober
dictates of his judgment. This is a duty from which nothing can give
him a dispensation. 'T is one that he is called upon, nay, constrained
by all the obligations that form the bands of society, to discharge
sincerely and honestly. No partial motive, no particular interest,
no pride of opinion, no temporary passion or prejudice, will justify
to himself, to his country, or to his posterity, an improper
election of the part he is to act. Let him beware of an obstinate
adherence to party; let him reflect that the object upon which he is
to decide is not a particular interest of the community, but the
very existence of the nation; and let him remember that a majority
of America has already given its sanction to the plan which he is to
approve or reject.
I shall not dissemble that I feel an entire confidence in the
arguments which recommend the proposed system to your adoption, and
that I am unable to discern any real force in those by which it has
been opposed. I am persuaded that it is the best which our political
situation, habits, and opinions will admit, and superior to any the
revolution has produced.
Concessions on the part of the friends of the plan, that it has
not a claim to absolute perfection, have afforded matter of no small
triumph to its enemies. "Why," say they, "should we adopt an imperfect
thing? Why not amend it and make it perfect before it is irrevocably
established?" This may be plausible enough, but it is only
plausible. In the first place I remark, that the extent of these
concessions has been greatly exaggerated. They have been stated as
amounting to an admission that the plan is radically defective, and
that without material alterations the rights and the interests of
the community cannot be safely confided to it. This, as far as I
have understood the meaning of those who make the concessions, is an
entire perversion of their sense. No advocate of the measure can be
found, who will not declare as his sentiment, that the system,
though it may not be perfect in every part, is, upon the whole, a good
one; is the best that the present views and circumstances of the
country will permit; and is such an one as promises every species of
security which a reasonable people can desire.
I answer in the next place, that I should esteem it the extreme of
imprudence to prolong the precarious state of our national affairs,
and to expose the Union to the jeopardy of successive experiments,
in the chimerical pursuit of a perfect plan. I never expect to see a
perfect work from imperfect man. The result of the deliberations of
all collective bodies must necessarily be a compound, as well of the
errors and prejudices, as of the good sense and wisdom, of the
individuals of whom they are composed. The compacts which are to
embrace thirteen distinct States in a common bond of amity and
union, must as necessarily be a compromise of as many dissimilar
interests and inclinations. How can perfection spring from such
materials?
The reasons assigned in an excellent little pamphlet lately
published in this city, *064 are unanswerable to show the utter
improbability of assembling a new convention, under circumstances in
any degree so favorable to a happy issue, as those in which the late
convention met, deliberated, and concluded. I will not repeat the
arguments there used, as I presume the production itself has had an
extensive circulation. It is certainly well worthy the perusal of
every friend to his country. There is, however, one point of light
in which the subject of amendments still remains to be considered, and
in which it has not yet been exhibited to public view. I cannot
resolve to conclude without first taking a survey of it in this
aspect.
It appears to me susceptible of absolute demonstration, that it will
be far more easy to obtain subsequent than previous amendments to
the Constitution. The moment an alteration is made in the present
plan, it becomes, to the purpose of adoption, a new one, and must
undergo a new decision of each State. To its complete establishment
throughout the Union, it will therefore require the concurrence of
thirteen States. If, on the contrary, the Constitution proposed should
once be ratified by all the States as it stands, alterations in it may
at any time be effected by nine States. Here, then, the chances are as
thirteen to nine *065 in favor of subsequent amendment, rather than of
the original adoption of an entire system.
This is not all. Every Constitution for the United States must
inevitably consist of a great variety of particulars, in which
thirteen independent States are to be accommodated in their
interests or opinions of interest. We may of course expect to see,
in any body of men charged with its original formation, very different
combinations of the parts upon different points. Many of those who
form a majority on one question, may become the minority on a
second, and an association dissimilar to either may constitute the
majority on a third. Hence the necessity of moulding and arranging all
the particulars which are to compose the whole, in such a manner as to
satisfy all the parties to the compact; and hence, also, an immense
multiplication of difficulties and casualties in obtaining the
collective assent to a final act. The degree of that multiplication
must evidently be in a ratio to the number of particulars and the
number of parties.
But every amendment to the Constitution, if once established,
would be a single proposition, and might be brought forward singly.
There would then be no necessity for management or compromise, in
relation to any other point- no giving nor taking. The will of the
requisite number would at once bring the matter to a decisive issue.
And consequently, whenever nine, or rather ten States, were united
in the desire of a particular amendment that amendment must infallibly
take place. There can, therefore, be no comparison between the
facility of affecting an amendment, and that of establishing in the
first instance a complete Constitution.
In opposition to the probability of subsequent amendments, it has
been urged that the persons delegated to the administration of the
national government will always be disinclined to yield up any portion
of the authority of which they were once possessed. For my own part, I
acknowledge a thorough conviction that any amendments which may,
upon mature consideration, be thought useful, will be applicable to
the organization of the government, not to the mass of its powers; and
on this account alone, I think there is no weight in the observation
just stated. I also think there is little weight in it on another
account. The intrinsic difficulty of governing thirteen States at
any rate, independent of calculations upon an ordinary degree of
public spirit and integrity, will, in my opinion, constantly impose on
the national rulers the necessity of a spirit of accommodation to
the reasonable expectations of their constituents. But there is yet
a further consideration, which proves beyond the possibility of a
doubt, that the observation is futile. It is this, that the national
rulers, whenever nine States concur, will have no option upon the
subject. By the fifth article of the plan, the Congress will be
obliged "on the application of the legislatures of two thirds of the
States [which at present amount to nine], to call a convention for
proposing amendments, which shall be valid, to all intents and
purposes, as part of the Constitution, when ratified by the
legislatures of three fourths of the States, or by conventions in
three fourths thereof." The words of this article are peremptory.
The Congress "shall call a convention." Nothing in this particular
is left to the discretion of that body. And of consequence, all the
declamation about the disinclination to a change vanishes in air.
Nor however difficult it may be supposed to unite two thirds or
three fourths of the State legislatures, in amendments which may
affect local interests, can there be any room to apprehend any such
difficulty in a union on points which are merely relative to the
general liberty or security of the people. We may safely rely on the
disposition of the State legislatures to erect barriers against the
encroachments of the national authority.
If the foregoing argument is a fallacy, certain it is that I am
myself deceived by it, for it is, in my conception, one of those
rare instances in which a political truth can be brought to the test
of a mathematical demonstration. Those who see the matter in the
same light with me, however zealous they may be for amendments, must
agree in the propriety of a previous adoption, as the most direct road
to their own object.
The zeal for attempts to amend, prior to the establishment of the
Constitution, must abate in every man who is ready to accede to the
truth of the following observations of a writer equally solid and
ingenious: "To balance a large state or society [says he], whether
monarchical or republican, on general laws, is a work of so great
difficulty, that no human genius, however comprehensive, is able, by
the mere dint of reason and reflection, to effect it. The judgments of
many must unite in the work; experience must guide their labor; time
must bring it to perfection, and the feeling of inconveniences must
correct the mistakes which they inevitably fall into in their first
trials and experiments." *066
These judicious reflections contain a lesson of moderation to all
the sincere lovers of the Union, and ought to put them upon their
guard against hazarding anarchy, civil war, a perpetual alienation
of the States from each other, and perhaps the military despotism of a
victorious demagogue, in the pursuit of what they are not likely to
obtain, but from time and experience. It may be in me a defect of
political fortitude, but I acknowledge that I cannot entertain an
equal tranquillity with those who affect to treat the dangers of a
longer continuance in our present situation as imaginary. A nation,
without a national government, is, in my view, an awful spectacle. The
establishment of a Constitution, in time of profound peace, by the
voluntary consent of a whole people, is a prodigy, to the completion
of which I look forward with trembling anxiety. I can reconcile it
to no rules of prudence to let go the hold we now have, in so
arduous an enterprise, upon seven out of the thirteen States, and
after having passed over so considerable a part of the ground, to
recommence the course. I dread the more the consequences of new
attempts, because I know that powerful individuals, in this and in
other States, are enemies to a general national government in every
possible shape.
- PUBLIUS
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