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the federalist
by
Alexander Hamilton,
John Jay,
and
James Madison
The Gideon Edition
Edited
with an Introduction, Reader’s Guide,
Constitutional Cross-reference, Index, and Glossary
by
George W. Carey
and
James McClellan
liberty fund
Indianapolis
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This book is published by Liberty Fund, Inc., a foundation established to
encourage study of the ideal of a society of free and responsible individuals.
The cuneiform inscription that serves as our logo and as the design motif for
our endpapers is the earliest-known written appearance of the word “freedom”
(amagi), or “liberty.” It is taken from a clay document written about 2300 B.C.
in the Sumerian city-state of Lagash.
© 2001 Liberty Fund, Inc.
Foreword © 2001 Liberty Fund, Inc.
Frontispiece photographs © Corbis-Bettmann
05 04 03 02 01
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Library of Congress Cataloging-in-Publication Data
The Federalist: a collection/by Alexander Hamilton, John Jay &
James Madison; edited with an introduction, reader’s guide, constitutional
cross reference & glossary by George W. Carey, James McClellan.
p.
cm.
“The Gideon edition.”
Includes bibliographical references and index.
isbn 0-86597-288-5 (alk. paper)
isbn 0-86597-289-3 (pbk.: alk. paper)
1. United States. Constitution.
2. Constitutional law—United States.
I. Hamilton, Alexander, 1757–1804.
II. Jay, John, 1745–1829.
III. Madison, James, 1751–1836.
IV. Carey, George Wescott, 1933 –
V. McClellan, James, 1937–
kf4515 .f4 2001
342.7302 —dc21
00-051998
liberty fund, inc.
8335 Allison Pointe Trail, Suite 300
Indianapolis, Indiana 46250-1684
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“The true distribution of the numbers of the Federalist
among the three writers is . . . the Edition . . . of Gideon. It
was furnished to him by me, with a perfect knowledge of
its accuracy, as it related to myself, and a full confidence in
its equal accuracy as it relates to the two others.”
James Madison
Undated Memorandum
Library of Congress
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Contents
Editors’ Introduction
xvii
Reader’s Guide to The Federalist
lvii
Preface to the Gideon Edition
lxxxv
the federalist
No. 1
Introduction
1
No. 2 Concerning Dangers from Foreign Force & Influence
5
No. 3 The same Subject continued
9
No. 4 The same Subject continued
13
No. 5 The same Subject continued
17
No. 6 Concerning Dangers from War between the States
20
No. 7 The subject continued, and Particular Causes
Enumerated
26
No. 8 The effects of Internal War in producing Standing
Armies, and other institutions unfriendly to liberty
32
No. 9 The Utility of the Union as a Safeguard against
Domestic Faction and Insurrection
37
No. 10 The same Subject continued
42
No. 11 The Utility of the Union in respect to Commerce
and a Navy
49
ix
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No. 12 The Utility of the Union in respect to Revenue
55
No. 13 The same Subject continued, with a view to Economy
60
No. 14 An Objection drawn from the Extent of Country,
Answered
62
No. 15 Concerning the Defects of the Present Confederation,
in Relation to the Principle of Legislation for the States
in their Collective Capacities
68
No. 16 The same Subject continued, in relation to the same
Principles
75
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
80
No. 18 The Subject continued, with further Examples
84
No. 19 The Subject continued, with further Examples
90
No. 20 The Subject continued, with further Examples
95
No. 21
Further defects of the present Constitution
99
No. 22 The same subject continued, and concluded
104
No. 23 The necessity ofa government, at least equally energetic
with the one proposed
112
No. 24 The subject continued, with an answer to an objection
concerning standing armies
117
No. 25 The subject continued, with the same view
122
No. 26 The subject continued, with the same view
126
No. 27 The subject continued, with the same view
132
No. 28 The same subject continued
136
No. 29 Concerning the militia
140
No. 30 Concerning taxation
145
Contents
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No. 31 The same subject continued
150
No. 32 The same subject continued
154
No. 33 The same subject continued
158
No. 34 The same subject continued
162
No. 35 The same subject continued
167
No. 36 The same subject continued
172
No. 37 Concerning the difficulties which the convention must
have experienced in the formation of a proper plan
179
No. 38 The subject continued, and the incoherence of the
objections to the plan, exposed
186
No. 39 The conformity of the plan to republican principles:
an objection in respect to the powers of the
convention, examined
193
No. 40 The same objection further examined
199
No. 41 General view of the powers proposed to be vested in
the union
207
No. 42 The same view continued
215
No. 43 The same view continued
222
No. 44 The same view continued and concluded
230
No. 45 A further discussion of the supposed danger from the
powers of the union, to the state governments
237
No. 46 The subject of the last paper resumed; with an
examination of the comparative means of influence
of the federal and state governments
242
No. 47 The meaning ofthe maxim, which requires a separation
ofthe departments ofpower, examined and ascertained
249
No. 48 The same subject continued, with a view to the means
of giving efficacy in practice to that maxim
256
Contents
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No. 49 The same subject continued, with the same view
260
No. 50 The same subject continued, with the same view
264
No. 51 The same subject continued, with the same view, and
concluded
267
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
272
No. 53 The same subject continued, with a view of the term
of service of the members
276
No. 54 The same subject continued, with a view to the ratio
of representation
282
No. 55 The same subject continued, in relation to the total
number of the body
286
No. 56 The subject continued, in relation to the same point
291
No. 57 The same subject continued, in relation to the supposed
tendency of the plan of the convention to elevate the
few above the many
295
No. 58 The same subject continued, in relation to the future
augmentation of the members
300
No. 59 Concerning the regulation of elections
305
No. 60 The same subject continued
310
No. 61 The same subject continued, and concluded
315
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
319
No. 63 A further view of the constitution of the senate, in
regard to the duration of the appointment of its
members
325
Contents
xii
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No. 64 A further view of the constitution of the senate, in
regard to the power of making treaties
332
No. 65 A further view of the constitution of the senate, in
relation to its capacity, as a court for the trial of
impeachments
337
No. 66 The same subject continued
342
No. 67 Concerning the constitution of the president: a gross
attempt to misrepresent this part of the plan detected
347
No. 68 The view of the constitution of the president
continued, in relation to the mode of appointment
351
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
355
No. 70 The same view continued, in relation to the unity of
the executive, and with an examination of the project
of an executive council
362
No. 71 The same view continued, in regard to the duration of
the office
369
No. 72 The same view continued, in regard to the re-eligibility
of the president
374
No. 73 The same view continued, in relation to the provision
concerning support, and the power of the negative
379
No. 74 The same view continued, in relation to the command
of the national forces, and the power of pardoning
384
No. 75 The same view continued, in relation to the power of
making treaties
387
No. 76 The same view continued, in relation to the
appointment of the officers of the government
391
No. 77 The view ofthe constitution ofthe president concluded,
with a further consideration ofthe power ofappointment,
and a concise examination of his remaining powers
396
Contents
xiii
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No. 78 A view of the constitution of the judicial department
in relation to the tenure of good behaviour
401
No. 79 A further view of the judicial department, in relation
to the provisions for the support and responsibility
of the judges
408
No. 80 A further view of the judicial department, in relation
to the extent of its powers
411
No. 81 A further view of the judicial department, in relation
to the distribution of its authority
417
No. 82 A further view of the judicial department, in reference
to some miscellaneous questions
426
No. 83 A further view of the judicial department, in relation
to the trial by jury
430
No. 84 Concerning several miscellaneous objections
442
No. 85 Conclusion
452
Glossary
459
Appendixes
1. The Declaration of Independence
495
2. Articles of Confederation
500
3. Virginia Resolution Proposing the Annapolis
Convention
510
4. Proceedings of the Annapolis Convention
511
5. Virginia Resolution Providing Delegates to the Federal
Convention of 1787
516
6. Call by the Continental Congress for the Federal
Convention of 1787
518
Contents
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7. Resolution of the Federal Convention Submitting the
Constitution to the Continental Congress
520
8. Washington’s Letter ofTransmittal to the President of
the Continental Congress
522
9. Resolution of the Continental Congress Submitting
the Constitution to the Several States
524
10. Letter of the Secretary of the Continental Congress
Transmitting Copy of the Constitution to the Several
Governors
525
The Constitution ofthe United States (cross-referenced
with The Federalist) and Amendments
526
Index
553
Contents
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xvii
1. But the oldest written constitution still in force is the Massachusetts Constitution of
1780. The first written constitutions were the State constitutions adopted in 1776. See note
13, infra. The first national constitution to appear in a single document was the Articles
of Confederation (1777). The American Constitution came a decade later. The third na-
tional constitution was promulgated in Poland on May 3, 1791; the fourth was the French
Constitution of September 3, 1791. The two European constitutions sought to establish a
constitutional monarchy, but neither lasted even two years. The British Constitution is
the oldest among nations, dating back at least as far as the Magna Charta (1215); but it
is “unwritten” in the sense that it is not limited to a single document. It consists, rather, of
fundamental principles of free government drawn from a complex maze of parliamentary
statutes, common law judicial precedents, and ancient political customs or conventions.
See A. V. Dicey, Introduction to the Study of the Law of the Constitution (Indianapolis:
Liberty Fund, 1982).
2. Thomas Jefferson to David Humphreys, March 18, 1789, in Papers of Thomas Jeffer-
son, ed. Julian Boyd (Princeton: Princeton University Press, 1958), 14: 678. “[T]his is the
best Government that has ever yet been offered to the world,” said Charles Pinckney of
South Carolina in 1788, “and instead of being alarmed at its consequences we should be
astonishingly pleased that one so perfect could have been formed from discordant and
unpromising materials.” (Jonathan Elliot, ed., The Debates in the Several State Conventions
on the Adoption of the Federal Constitution [Philadelphia: J. B. Lippincott, 1836], IV: 261).
Pinckney served as a delegate to both the Federal Convention and the South Carolina
ratifying convention. For contemporaneous views on the Constitution among leaders of
the founding generation, see Charles Warren, The Making of the Constitution (Cambridge:
Harvard University Press, 1928), 733–782. “Let us look to America,” advised Alexis de
Tocqueville, “let us borrow from her the principles . . . of order, of the balance of powers,
of true liberty, of deep and sincere respect for right [which] are indispensable to all re-
publics.” (author’s preface to the 12th ed., 1848, Democracy in America [New York: Alfred
Knopf, 1948], cvi– cvii). The British statesman William Gladstone described the American
Constitution as “the most remarkable work known to me in modern times to have been
produced by the human intellect.” (quoted in Albert P. Blaustein, The Influence of the
Editors’ Introduction
The American Constitution is the oldest written national constitution in the
world.1 Its durability and veneration over the years would seem to affirm
Thomas Jefferson’s estimate that the fundamental law of the American people
“is unquestionably the wisest ever yet presented to men.” 2
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Editors’ Introduction
xviii
United States Constitution Abroad [Washington, D.C.: Washington Institute for Values in
Public Policy, 1986], 32). With few exceptions, contends Blaustein, “every nation that has
a one-document constitution (or is committed in principle to having one) is inevitably
following the United States precedent-model” (Ibid., 7). We are reminded, however, that
“Of the many systems of free and popular government in operation in the world today,
there are few, ifany, which do not bear, in a variety offeatures, the unmistakable marks
of derivation from the Constitution of England in some stage of its development from
1688 to the present day.” (Maurice Amos, The English Constitution [London: Longmans,
Green, 1930], 14).
3. John Adams to Thomas Jefferson, December 6, 1787, in The Works of John Adams,
ed. Charles Francis Adams (Boston: Little Brown, 1853), VII: 464. Adams was responding
to Jefferson’s letter of November 13, in which Jefferson had indicated that he would have
At the time of its adoption, however, Americans were deeply divided over
its merits. When the delegates to the Federal Convention of 1787 completed
their work in Philadelphia and voted on September 17 to approve the new
Constitution and submit it to the people in the several States for ratification,
three leading members of the convention—Edmund Randolph and George
Mason of Virginia, and Elbridge Gerry of Massachusetts—refused to sign.
Others simply left the convention before the proceedings ended. Of the fifty-
five delegates who actually attended the convention, only thirty-nine affixed
their signatures to the final draft.
No less disconcerting was the fact that a number of influential political
leaders, including Patrick Henry, Richard Henry Lee, and James Monroe of
Virginia, Samuel Adams and John Hancock of Massachusetts, and John Jay
and Governor George Clinton of New York, had either boycotted the con-
vention or were excluded from it. At least some of them could now be ex-
pected to oppose or lead the fight against ratification.
Moreover, the nation’s two most experienced constitutional architects,
John Adams of Massachusetts and Thomas Jefferson of Virginia, both of
them leaders of pivotal states in the ratification struggle and warm support-
ers of the new Constitution, were on diplomatic assignment in Europe. Thus,
they could not participate in the convention’s deliberations or in the public
debates over ratification. They nevertheless corresponded with friends back
home and with each other, readily exchanging views on the Constitution’s
strengths and weaknesses. “We agree perfectly,” Adams wrote Jefferson, “that
the many should have a full, fair, and perfect representation. You are appre-
hensive of Monarchy, I of Aristocracy. I would therefore have given more
Power to the President and less to the Senate.” 3 A few of the Framers also
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Editors’ Introduction
xix
been content to add “three or four new articles . . . to the good, old and venerable fabric
[i.e., the Articles of Confederation], which should have been preserved even as a religious
relic.” In particular, he favored giving the Senate a stronger voice in both foreign and do-
mestic affairs, and limiting the President to a single term. “How do you like our new Con-
stitution?” queried Jefferson. “Their President seems a bad edition of a Polish king. He
may be reelected from 4 years to 4 years for life. Reason and experience prove to us that a
chief magistrate, so continuable, is an officer for life.” (Jefferson, Papers, 12: 350 –351). Jef-
ferson’s concern was addressed more than a century later when in 1951 the States ratified
the 22nd Amendment to the Constitution, thereby constitutionalizing the custom estab-
lished by George Washington for limiting the President to two terms.
4. John Adams to John Jay, December 16, 1787, in Works of John Adams, VIII: 467.
solicited the opinions ofAdams and Jefferson. James Madison of Virginia,
for example, corresponded regularly with Jefferson, and Roger Sherman of
Connecticut exchanged views with Adams on a number of constitutional
points. Adams told Jay at the outset of the ratification struggle that “the pub-
lic mind cannot be occupied about a nobler object than the proposed plan of
government. It appears to be admirably calculated to cement all America in
an affectation and interest, as one great nation.” Like so many friends of the
Constitution, Adams acknowledged its imperfections but accepted the new
Constitution as probably the best compromise possible under the circum-
stances. “A result of accommodation and compromise cannot be supposed
perfectly to coincide with everyone’s idea of perfection,” he reminded Jay.
“But, as all the great principles necessary to order, liberty, and safety are re-
spected in it, and provision is made for corrections and amendments as they
may be found necessary, I confess I hope to hear of its adoption by all the
states.” 4
the movement towa rd constitutional reform
The Framers of the American Constitution confronted three major tasks.
The first was to improve the relationship among the States, or to create “a
more perfect union.” The second was to design a federal government with
limited, delegated, and enumerated powers sufficient to govern effectively,
reserving to the States and the people thereofthose powers not delegated,
in order to protect their rights and liberties and prevent the central govern-
ment from usurping them. The third task was to implement the principle of
“government by consent” and to confer legitimacy upon the new govern-
ment by building it upon a solid foundation of popular sovereignty, with-
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Editors’ Introduction
xx
out sacrificing the sovereignty ofthe States that agree to join the Union.
How the Framers accomplished these objectives is the story of the American
founding.
The Federal, or Philadelphia, Convention, as it is sometimes called, was
the culmination of a struggle dating back to the American Revolution to pro-
vide central direction to American affairs and promote closer cooperation
among the then-thirteen colonies. Even before the outbreak of armed hos-
tilities, colonial leaders had recognized the importance of coordinated oppo-
sition to British domination, as witnessed by the convening of the Stamp Act
Congress in 1765 to challenge the constitutionality of the Act, and the forma-
tion between 1772 and 1774 of intercolonial Committees of Correspondence
to exchange information and unite the colonies against George III and the
British Parliament.
These efforts laid the groundwork for concerted action that led directly
to the creation of the first Continental Congress in 1774. This remarkable
body sat for fifteen years, first in Carpenters’ Hall in Philadelphia and later in
a number of other cities, completing its final session in New York City in 1788.
Though regarded at first as only a temporary assembly, the Continental Con-
gress met for seven years (1774 –1781) before its powers were ever clearly de-
fined. During this period, it exercised many of the powers of a sovereign state,
such as declaring the independence of the United States, issuing currency,
borrowing large sums of money, entering into an alliance with France, build-
ing a navy, and raising an army. It also drafted America’s first instrument of
government, styled “The Articles of Confederation and Perpetual Union.”
Described as a “league of friendship” among the thirteen States, each retain-
ing “its sovereignty, freedom and independence,” the Articles of Confedera-
tion were more like a treaty than a genuine constitution delineating the pow-
ers and functions of a central government. The document made no provision
for an executive or a judiciary branch, and the member States retained most
of their original powers. Not the least disconcerting was the failure of the Ar-
ticles to confer supremacy on the Confederation’s laws and treaties, thereby
rendering them equal to State constitutions and statutes and making them
unenforceable when a State refused to comply.
As early as July 1775 the need for Articles of Confederation was discussed
in Congress, and a plan for them was presented by Benjamin Franklin. But
no action was taken until June 7, 1776, when Richard Henry Lee offered a
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Editors’ Introduction
xxi
5. Pauline Maier, American Scripture: Making the Declaration of Independence (New
York: Alfred Knopf, 1997), 41. Lee was instructed by the Virginia Convention of 1776 to
offer the resolution, and it was seconded by John Adams.
6. Alexander Hamilton, “The Continentalist No. 3,” August 9, 1781, in The Papers of
Alexander Hamilton (New York: Columbia University Press, 1961), II: 665. Hamilton wrote
six essays under the pseudonym ofThe Continentalist, dated July 12, August 9 and 30,
1781; and April 18 and July 4, 1782. “As too much power leads to despotism,” declared
Hamilton, “too little leads to anarchy, and both eventually to the ruin of the people.”
(“The Continentalist No. 1,” Ibid., 651). The inherent weakness of earlier confederations,
especially those of ancient Greece, served as a warning to the American people: decrees of
the Amphictyonic Council became ineffectual, and “when the cities were not engaged in
resolution providing that: (1) “these United Colonies are, and ofright ought
to be, free and independent States”; (2) that alliances should be made for
their protection; and (3) that “a plan of confederation be prepared and trans-
mitted to the respective colonies.” 5 On June 11, a committee consisting of
Thomas Jefferson, Benjamin Franklin, John Adams, Robert Livingston, and
Roger Sherman was appointed to prepare a Declaration ofIndependence. A
second committee, headed by John Dickinson ofDelaware, was appointed
a day later to draft the Articles of Confederation. After extended debate and
considerable delay, the Articles were formally adopted on November 15, 1777,
and sent to each State legislature for ratification. Because the Articles required
the unanimous consent of all the States before they could go into effect, there
were further delays. Some of the small States, especially Maryland, refused to
sign until the larger States surrendered their claims to territory in the North-
west. Consequently, the Articles did not go into effect until Virginia offered
to cede her claims to the Union in 1781. What is more, by defining the pow-
ers of the Continental Congress the Articles necessarily limited them; actions
previously thought appropriate were now denied.
Throughout its relatively brief existence, which ended in 1789 when the
system created by the Philadelphia Convention was put into operation, there
was widespread dissatisfaction with the Articles, principally because they
conferred so little power on the Continental Congress. Indeed, in 1780, even
before ratification was complete, Alexander Hamilton anticipated the diffi-
culties that would arise and urged political leaders to call a convention of
the States to draft plans for a far stronger confederation. A short time later,
in 1781, writing under a pen name, “The Continentalist,” he again argued
that “we ought without delay to enlarge the powers of Congress.” 6 In 1780, a
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foreign wars, they were at perpetual variance among themselves. Sparta and Athens con-
tended twenty-seven years for . . . dominion of Greece,” and as a result the Macedonians
and eventually the Romans “became their masters.” (“The Continentalist No. 2,” Ibid.,
656). Hamilton would later invoke this and other historical examples of failed confedera-
cies in The Federalist. Madison shared his aversion to confederacies, noting in Federalist
No. 18 “the tendency of federal bodies, rather to anarchy among its members, than to
tyranny in the head.” The solution for saving the Articles, Hamilton explained in the last
three “Continentalist” essays, was to give Congress more power, including that of regu-
lating trade, levying land and capitation taxes, and appointing its own officers of the cus-
toms, collectors of taxes, and military officers.
7. George Bancroft, History of the Formation of the Constitution (New York: Appleton,
1883), I: 39. Bancroft and others have speculated that Alexander Hamilton was probably
the author of these resolutions.
8. Madison’s proposed amendment of March 12, 1781, is reprinted in The Papers of
James Madison, ed. by William T. Hutchinson and William M. E. Rachel (Chicago: Uni-
versity ofChicago Press, 1963), III: 17–19. Public-spirited individuals outside the gov-
ernment expressed similar concerns about the defects of the Articles. See, for example,
Pelatiah Webster, A Dissertation on the Political Union and Constitution of the Thirteen
United States (1783), and Noah Webster, Sketches of American Policy (1785).
convention of New England States meeting in Boston proposed that the
American States immediately form a “more solid union” than that provided
by the Articles. In 1781 and 1782, the New York Assembly recommended “a
general convention of the States specially authorized to revise and amend the
Confederation.” 7
Responding to these appeals, the Continental Congress tried, without
success, to amend the Articles and enlarge its powers. In February 1781, for
example, Congress proposed an amendment authorizing the Confederation
government to levy a five percent ad valorem duty to raise revenue. Twelve
states agreed, but Rhode Island opposed the change, and because of the una-
nimity requirement the amendment failed. A month later James Madison
recommended that Congress be given authority to employ the force of the
United States to “compel [the] States to fulfill their federal engagements,”
but no action was taken.8 Again, that same year a committee of the Congress
reported twenty-one deficiencies in the Articles and recommended a gen-
eral enlargement of Congress’s powers, but without success. As late as 1786,
Charles Pinckney of South Carolina was leading an effort in the Congress
to call a constitutional convention, but to no avail.
The Continental Congress, it became clear, had reached an impasse. In
practice, the unanimity requirement rendered it virtually impossible to
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9. Because the Articles of Confederation proved inadequate in some respects and had
to be replaced by a new frame of government, it has been fashionable, as one historian
notes, to criticize it harshly, and even heap scorn upon it. But “whatever the defects of the
Articles ofConfederation, they constitute nevertheless an important, a necessary stage
in the development of an efficient constitution . . . [just] as the Confederation under them
was an important, a necessary step in the program toward a more perfect union.” (Ed-
mund Cody Burnett, The Continental Congress [New York: Norton, 1964], 257). To be sure,
under the Articles the Treaty of Peace acknowledging American independence was nego-
tiated, the war of the Revolution was concluded, and a Union of States was established. For
many Americans, a decentralized confederation in which public affairs were entrusted
largely to State and local officials was preferable to a consolidated Union run by a distant
government. To a very great extent, whether the Articles were a success or a failure is a
question that depends on one’s philosophy of government and view of the public interest.
10. “There was a good deal of truth in what John Adams once said of it,” noted the his-
torian John Fiske, that the Continental Congress “was more a diplomatic than a legislative
body. It was, indeed, because of this consciously felt diplomatic character that it was called
a Congress and not a Parliament.” (The Critical Period of American History, 1783–1789
[Boston: Houghton Mifflin, 1888], 237).
amend the document even if an overwhelming majority of the States favored
change. The inability to act on these provisions necessarily doomed the Ar-
ticles of Confederation to extinction, because the Continental Congress was
helpless to correct flaws in the system or to adapt it to changing circum-
stances.9 During the final eight years of its existence, the Congress thus grew
weaker and weaker until at last many political leaders reached the conclusion
that a new, more efficient and more powerful government was needed. It be-
came clear, however, that if a workable constitutional system responsive to
the needs of the American people were to be established, the impetus would
have to come from outside the Congress.10
constitutional reform in the states
In the meantime, the colonies had already transformed themselves into thir-
teen constitutional republics, each claiming independence, sovereignty, and
statehood. They had progressed to this stage ofpolitical development over
a two-year period beginning with the creation of the Committees of Cor-
respondence in 1772. These bodies were subsequently replaced by revolu-
tionary or provincial legislatures in each colony, such as the Provincial Con-
gress in Massachusetts and the Provincial Conventions in Maryland and the
Carolinas. Many members ofthese transitional legislative bodies had served
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11. Allan Nevins, The American States During and After the Revolution, 1775–1789 (New
York: Macmillan, 1924), 115.
12. See Maier, American Scripture, 47–96.
in the colonial assemblies, thereby providing continuity ofleadership, po-
litical experience, and on occasion legality with the old regime. Upon taking
charge, these provincial legislatures elected delegates to the Continental Con-
gress and assumed the powers of government.
During the spring and summer of 1775, the interim governments in the
various colonies, many of them built upon county committees, began to pre-
pare for independence, statehood, and to write new constitutions. “When
Americans thought of independence in 1775 –1776,” notes one historian,
“they usually thought of it in terms of their own commonwealth, of Massa-
chusetts, New Jersey or Georgia, rather than in terms ofthe nation. The
future form and character of the nation, even if one survived, were heavy
and inchoate.” 11 The bilateral movement toward a national declaration of
independence and American nationhood, it may thus be seen, sprang from
a grassroots effort at the state and local level, that is, from the bottom up, not
from any grand design originating in the Continental Congress.
Between April and July 1776, some ninety “declarations ofindepen-
dence” were formulated by townships in Massachusetts and counties in New
York, Maryland, Virginia, and South Carolina.12 On April 13, 1776, North
Carolina became the first State to instruct its delegates to join other dele-
gates in the Continental Congress in declaring independence. Rhode Island,
Virginia, Connecticut, New Hampshire, Delaware, New Jersey, Pennsylva-
nia, and Maryland followed in rapid succession. While only a small portion
of the people participated in the formation and ratification of these various
State and local declarations, the record indicates that they enjoyed wide-
spread public support, notwithstanding pockets ofLoyalist opposition in
some areas. This is no less true of the Declaration of Independence that was
ultimately adopted by the Continental Congress and readily approved by the
State legislatures.
Moreover, few citizens played a direct role in the creation of the first
State constitutions. Four States wrote new constitutions even before the
Declaration ofIndependence came into existence. The first, adopted by
New Hampshire in January 1776, and the second, approved by South Caro-
lina that February, were hastily written, virtually in the heat of battle. They
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13. The era of revolutionary State constitutions extended from 1776 to 1784. Eight State
constitutions were written in 1776. Georgia and New York adopted theirs in 1777, as did
Vermont, which was in revolt against both New York and Great Britain. The following
year, South Carolina revised her constitution of 1776, and in 1780 Massachusetts cast aside
her colonial charter of 1691 in favor of a new constitution. New Hampshire, greatly in-
fluenced by the Massachusetts design, finally adopted a constitution in 1784. The overall
record ofsuccess ofthese first attempts at constitution making was rather impressive,
particularly when it is recalled that the documents were written while the colonies were
at war. Four ofthe first constitutions lasted more than a halfcentury: North Carolina
(75 years); New Jersey (68 years); Maryland (65 years); and Virginia (54 years). The Con-
necticut Charter of 1662 served as that state’s constitution until 1818, and Rhode Island’s
Charter of1663 lasted until 1842. New York’s Constitution of1777, though amended by
an 1801 convention, remained substantially intact until it was replaced in 1821. By 1800, the
sixteen States comprising the Federal Union had adopted twenty-six constitutions.
were viewed as temporary expedients and both were soon replaced, but the
new constitutions of New Jersey and Virginia, adopted in June, were in-
tended as permanent instruments of government. Each in fact lasted more
than half a century. Four more States ratified new constitutions in the fall of
1776: Delaware and Pennsylvania in September, Maryland in November, and
North Carolina in December. Georgia and New York finally agreed on their
new constitutions early in 1777. Three States—Massachusetts, Rhode Island,
and Connecticut—elected to retain their colonial charters as fundamental
law by stripping them of their monarchical provisions and reinterpreting
them as republican constitutions.13
Significantly, these first State constitutions, like all the early State declara-
tions of independence, were written by legislative assemblies. The decision in
Massachusetts, Rhode Island, and Connecticut to keep the old charters was
also made by legislative fiat. In no State was the new constitution drafted by
a specially elected constitutional convention, nor did any of the States submit
their new constitutions to the people for ratification. Three of the ten States
that adopted a new constitution (New Jersey, Virginia, and South Carolina)
did not even call a special election to draft the document, leaving the matter
entirely to the discretion of their incumbent legislators. Thus it may be seen
that, in spite of the American revolutionary doctrine of popular sovereignty
embodied in the Declaration of Independence proclaiming the right of the
people to self-government, the American people did not participate directly
in the formation and ratification of either the Articles of Confederation or the
first State constitutions. Indeed, they did not even have a voice in the writing
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14. Merrill Jensen, The Articles of Confederation (Madison: University ofWisconsin
Press, 1959), 15.
or adoption of the Declaration of Independence that heralded their new
coming. Having created numerous republics—that is, governments mod-
eled and directed by their chosen representatives—they had yet to establish
democratic republics based on “the consent of the governed”—republics in
which the people exercised both political and legal sovereignty through fun-
damental laws that they had helped directly to create.
In spite of these apparent inconsistencies, the American Revolution and
the various political regimes that sprang from it were all part of an evolving
democratic movement. “The Articles of Confederation,” as Merrill Jensen
has observed, “were the constitutional expression of this movement, and the
embodiment in governmental form of the Declaration of Independence.” 14
That our first efforts in 1776 to establish constitutional government failed to
include popular participation in constitution making should not obscure the
fact that significant progress had already been made toward the attainment of
self-government and the principle of majority rule in the lawmaking process.
Even before the States completed ratification of the Articles and joined the
Union, there was growing dissatisfaction with the first constitutions in most
States. Much of this discontent may be attributed to defects discovered in the
constitutions after they went into effect, caused mostly by inexperience in
the art of constitution making and a general lack of familiarity with new con-
stitutional concepts that had not yet been tested, especially the idea of sepa-
rating the powers of government among three branches. Many of these early
attempts at self-government, for example, called for a pure separation of
powers and failed, in one way or another, to establish effective, limited gov-
ernment because they lacked a check-and-balance system and allowed the
legislatures to usurp the powers of the other branches. What they invariably
produced was legislative supremacy rather than constitutional supremacy.
In Massachusetts and New Hampshire, however, there was an additional
concern almost from the outset: a claim that self-government had been sub-
verted because the people had not played a direct role in designing their con-
stitutional systems. Not content with their new constitutions, disgruntled
voters in these states conceived the idea that a constitution should be drafted
by a special, independent constitutional convention rather than a legislative
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15. Nevins, The American States During and After the Revolution, 172–184.
assembly and that any fundamental law proposed by this convention should
be submitted to the people for ratification. A number of early attempts to
democratize the process regarding both the drafting and the ratification of
the Constitution met with resistance. One of the first proposals for a special
convention to write a new constitution was made by the town of Concord,
Massachusetts, on October 21, 1776, but State leaders were opposed to the
idea. Even earlier, the town of Norton had unsuccessfully urged the State to
consider the special convention as an alternative to legislative action. Berk-
shire County, in western Massachusetts, became the first local government to
call for the popular ratification of a new constitution. Led by “the fighting
parson” (the Rev. Benjamin Balch, who later fired the first shot at the Battle
ofBennington), Berkshire citizens held a mass meeting in Pittsfield and sent
a memorial to the State legislature demanding that new constitutions be
submitted to the people. Offering a rationale that would soon be repeated in
most of the other States, they contended that the people were the true fount
of all power, that a revolutionary legislature had no right to impose a consti-
tution upon them, and that the only valid constitution was one based on the
consent of the majority.15
Before the Massachusetts authorities could make a final determination on
how to proceed toward devising and establishing a new constitution, the
New Hampshire legislature stepped forward in the spring of 1778 to summon
a constitutional convention of its own. The convention met in Concord, New
Hampshire, in June to draft a new instrument of government that would re-
place the State’s first attempt at constitution making, but the second docu-
ment proved no more satisfactory than the first and the townships promptly
rejected it. This assembly was nevertheless the first constitutional convention
in the United States—and in the world. It was not until the fall of 1783, how-
ever, in a fourth and final effort, that the citizens of New Hampshire adopted
a permanent constitution.
Meanwhile, the people of Massachusetts were progressing steadily toward
a constitutional system that would have a permanent impact on all future
constitutions, including the Federal Constitution of 1787. On May 5, 1777, the
legislature called upon the electorate to choose representatives who would
not only serve as legislators but would also work with the twenty-eight mem-
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16. Ibid. See also Jackson Turner Main, “Government by the People: The American
Revolution and the Democratization of the Legislatures,” in The New American Nation,
1775 to 1820: The Revolution in the States, ed. by Peter Onuf (New York: Garland Publish-
ing, 1991), 1–17.
17. The Essex Result, the Constitution of 1780, and related documents are reproduced
in Oscar and Mary F. Handlin, eds., The Popular Sources of Political Authority: Docu-
ments on the Massachusetts Constitution of 1780 (Cambridge: Harvard University Press,
1966). The Essex Result is also reprinted, with related documents, in Charles S. Hyneman
and Donald S. Lutz, eds., American Political Writing during the Founding Era, 1760 –1805
(Indianapolis: Liberty Fund, 1983), I: 480 –523. According to M. J. C. Vile, the Essex Result
was “the precursor of the Massachusetts Constitution of 1780, and the first clear formu-
lation of the [separation of powers] theory which was to become the basis of the Federal
Constitution.” (Constitutionalism and the Separation of Powers [Indianapolis: Liberty
Fund, 1998], 165).
bers of the Council, or upper house, to draft a new constitution for submis-
sion to the voters. Despite widespread opposition to using the State assembly
as a constitutional convention, the assembly approved the constitution on
February 28, 1778, only to see it flatly rejected less than a week later by a vote
of 9,972 to 2,083. This became the first time in American history in which all
the free adult male citizens were allowed to participate in the ratification of a
proposed constitution.16
During the course of this referendum, some 180 returns from towns in
Massachusetts were drafted to explain local objections to the proposed con-
stitution. The most important ofthese was the celebrated Essex Result of
Essex County, written mainly by Theophilus Parsons, a young lawyer who
later became the Chief Justice of the Massachusetts supreme court. The Essex
Result, an essay in political and constitutional theory, has often been com-
pared favorably to The Federalist because of its learned and insightful treat-
ment ofpolitical subjects, particularly the separation ofpowers principle.
Rejecting legislative supremacy and a pure separation ofpowers, the Essex
Result advocated a complex, carefully balanced form of government that pro-
vided a check-and-balance system to prevent one branch of the government,
particularly the legislative, from encroaching upon the powers of the other
branches.17 In 1781, Thomas Jefferson published his Notes on the State of Vir-
ginia, which made a similar case against legislative supremacy. Concentrating
all the powers of government in the same hands, said Jefferson, “is precisely
the definition of despotic government. . . . 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
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18. Thomas Jefferson, Notes on the State of Virginia, ed. by William Peden (Chapel Hill:
University of North Carolina Press, 1955), 120.
19. Although Adams was not a member ofthe Federal Convention, he was in many
respects the father of American constitutionalism. His pamphlet “Thoughts on Govern-
ment” (1776) served as a guide in some States, including Virginia, in the drafting of the
first constitutions. The constitution he wrote for Massachusetts set the standard for future
State constitutions and the Federal Constitution. “Of all the prominent statesmen of the
Revolution,” asserts one writer, “John Adams seemed best and earliest to forecast the form
our institutions must assume, as well as their foundation and peculiar spirit. He saw that
a republic alone would satisfy the wishes or harmonize with the genius of our people, and
he was wise enough and fortunate enough to point out seasonably and with great preci-
sion the method in which the edifice of government, in the several states, must be erected.
He was convinced it must be founded upon the people, by the people, and for the people.”
(John Alexander Jameson, A Treatise on Constitutional Conventions [Chicago: Callaghan
and Co., 1887], 498). Another guidebook for constitutional architects was Adams’s multi-
volume Defence of the Constitutions of Government of the United States of America, written
“to lay before the people a specimen of that kind of reading and reasoning which pro-
duced the American [state] constitutions,” repudiate the constitutional ideas of French
(and American) reformers and defend bicameralism and the new American check-and-
balance system of separated powers. Published in 1787, Adams’s Defence is “thought to
balanced among several bodies . . . that no one could transcend their legal
limits, without being effectually checked and restrained by the others.” 18
With the defeat of the 1778 constitution, the Massachusetts House of Rep-
resentatives called for another referendum. In town meetings across the State
a majority ofthe electorate now voted in favor ofcalling a State convention to
draft a new constitution. The legislature thereupon announced new elections
on June 21, 1779, for a constitutional convention, which met in Cambridge on
September 1. In sharp contrast to the Federal Convention of1787 that met
in Philadelphia, in which there was widespread participation among the
delegates in the framing of the document, the Massachusetts convention ap-
pointed a committee of thirty delegates to perform the task. This committee
then appointed a subcommittee consisting of James Bowdoin, Samuel
Adams, and John Adams to do the work. This group then proceeded to turn
the whole matter over to John Adams, who singlehandedly wrote both a new
constitution and a declaration of rights. These documents were accepted
with only minor revisions after four months of deliberation, and a proposed
text was presented to the towns in March 1780. They approved the document
and on October 25, 1780, the new constitution went into effect.
The Massachusetts Constitution of 1780 stands today as a tribute to the
political genius of John Adams.19 Although it has been substantially amended
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xxx
have had a positive influence on the Constitutional Convention.” (C. Bradley Thompson,
John Adams and the Spirit of Liberty [Lawrence: University Press of Kansas, 1998], 252).
20. Writing in 1775, John Adams recalled that he “had looked into the ancient and
modern confederacies for examples” of popular conventions, but could not find any.
“But we had a people of more intelligence, curiosity, and enterprise,” he continued, “who
must be consulted; and we must realize the theories of the wisest writers, and invite the
people to erect the whole building upon the broadest foundations. . . . This could only be
done by Conventions of representatives chosen by the people in the several colonies. . . .
Congress ought now to recommend to the people of every colony to call such Conven-
tions immediately; and set up governments of their own, under their own authority; for
the people were the source of all authority, and original of all power.” (John Adams,
“Autobiography,” in The Works of John Adams, III: 16).
21. Vile, Constitutionalism and the Separation of Powers, 162–166. “It was in the Mas-
sachusetts Constitution of 1780,” observes Vile, “that the new philosophy of a system of
separated powers which depends upon checks and balances for its effective operation was
first implemented. This constitution embodied the results of the ideas of John Adams and,
more important perhaps, of the Essex Result.” (Ibid., 162–163).
over the years, it continues to serve as the fundamental law of Massachusetts
after more than two centuries. It is thus the oldest written constitution in the
world that is still in force. The influence of the Massachusetts experience on
American constitutional development, at both the State and national levels,
has been substantial. The convention of 1779 –1780 was the first successful
constitutional convention in which the people participated not only in the
selection ofdelegates to a special convention but also in the ratification of
the finished document. It thereby established democratic principles of pro-
cedure for the formation and acceptance of constitutions based on the sov-
ereignty ofthe people. With few exceptions, the Massachusetts precedent
became the accepted template throughout the Union after 1780 and also pro-
vided the procedure that the Framers of the American Constitution would
follow in 1787.20
Likewise, the Massachusetts Constitution had an enormous impact on
American constitutional theory, for it was in this constitution that the new
theory of separation of powers, a theory based on the realization that sepa-
rated powers must be checked and balanced if they were to remain separate,
was first implemented. This is the uniquely American system that the several
States adopted when they began rewriting their constitutions after 1780 and
the one that the Framers incorporated into the new Constitution drafted in
Philadelphia.21
On the eve of the Federal Convention, it may thus be seen, the American
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22. The evolution of political and constitutional theory from the Declaration of Inde-
pendence to the ratification of the Constitution is illuminated in Gordon S. Wood’s The
Creation of the American Republic, 1776 –1787 (Chapel Hill: University ofNorth Carolina
Press, 1969). The establishment of popular-based conventions to frame and ratify a con-
stitution, observes Wood, “was an extraordinary invention, the most distinctive institu-
tional contribution . . . the American revolutionaries made to western politics. It not only
enabled the Constitution to rest on an authority different from the legislature’s, but it
actually seemed to have legitimized revolution. Without a constitution based on conven-
tion authority, as Jefferson had complained, the people must ‘rise in rebellion’ every time
they wished to prevent legislative encroachment on their liberties or to revise their con-
stitution.” (Ibid., 342–343. See also Jameson, A Treatise on Constitutional Conventions,
490 –545).
people had clearly outgrown the constitutional immaturity of their revolu-
tionary youth. Through trial and error, they had advanced to a whole new
understanding of constitutionalism, republicanism, and popular sovereignty
in just ten years. Prior to the American Revolution, the term “constitution”
was commonly understood to refer to the fundamental principles upon
which government is based. Now it was seen as something more—as a writ-
ten document originating with the people that authorized the establishment
of a government with limited powers. For the first time, constitutions were
readily seen as distinct from, and superior to, statutes enacted by legislative
assemblies. The spell oflegislative supremacy cast by Parliament and the
English constitutional system had been broken, at least in theory if not always
in practice. Constitutions were now entitled to the elevated status of a higher
or supreme law because they sprang not from the legislature but from the
people, through constitutional conventions creating them and ratifying con-
ventions approving them.22 The new separation of powers doctrine, favoring
some functional overlap among the three branches of government through a
check-and-balance arrangement that would ensure their independence, went
hand in hand with this new view of constitutionalism, because it held the leg-
islature in check and promised to prevent the return of legislative supremacy.
the annapolis convention
The catalyst for the Federal Convention of 1787 that wrote the Constitution
of the United States was not the Continental Congress sitting in New York but
the several States, led by the State of Virginia. What sparked the proceedings
that led to the drafting of the Constitution was a commercial dispute between
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xxxii
23. Elliot, Debates, I: 132.
24. Ibid.
Virginia and Maryland over the taxing of shipping on the Potomac River and
Chesapeake Bay. Led by James Madison, representatives from the two States
met in 1784 at Mount Vernon, the home of General Washington. There they
were able to settle their differences, but left unresolved questions regarding
the interests of other States bordering Virginia and Maryland. Madison then
persuaded the Virginia legislature to call a meeting of all the States to discuss
trade problems, hoping that the participants might consider the larger issue
of giving the Continental Congress the power to regulate commerce.
Virginia’s call for a convention was heeded, and in the summer and early
fall of 1786 twelve delegates from five States (Virginia, Pennsylvania, New
York, New Jersey, and Delaware) convened in Annapolis, Maryland. Al-
though the other states (including Maryland, curiously enough) did not send
a representative, and little was actually decided, the Annapolis Convention
proved to be important in that it set the stage for the Federal Convention the
next year. Conspicuous for their leadership at the Annapolis Convention
were James Madison and Alexander Hamilton, who would later figure prom-
inently in the drafting and adoption of the Constitution. At the urging of
Hamilton, the Annapolis delegates voted on September 14, 1786, to recom-
mend to all thirteen States that they hold another convention “to meet in
Philadelphia on the second Monday in May next, to take into consideration
the situation in the United States, to devise such further provisions as shall
appear to them necessary to render the constitution of the Federal Govern-
ment adequate to the exigencies of the Union.” 23
At this juncture, the Continental Congress could have assumed a leader-
ship role by officially sponsoring the convention, or at least endorsing it. In-
stead, it remained a passive observer and took no action. Seizing the initia-
tive, the Virginia legislature stepped forward with a resolution in November
1786 urging the other States to send delegates to Philadelphia. “The Crisis is
arrived,” declared the Virginia General Assembly, when the American people
must decide “whether they will by wise and magnanimous efforts, reap the
just fruits of . . . independence” or whether by surrendering to “unmanly jeal-
ousies and prejudices, or to partial and transitory interests, they will re-
nounce the auspicious blessings prepared for them by the Revolution. . . .” 24
Such was the spirited language ofthe resolution’s preamble, written by
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25. Ibid.
26. George Ticknor Curtis, Constitutional History of the United States (New York:
Harper & Bros., 1897), I: 247. Cf. Francis Newton Thorpe: “Even before Maryland ratified
the Articles, the attendance in Congress began to waver and fall off, and it soon became
James Madison. The Virginia General Assembly passed the resolution unani-
mously, acceded to the proposal from Annapolis, and appointed seven dele-
gates to the convention. But the resolution contained a crucial stipulation
inspired by the Assembly’s newfound commitment to popular sovereignty,
namely that the new constitution should be established not by the legislatures
of the several States meeting in Congress but by a convention gathering in
Philadelphia, followed by ratification of the several States. Thus did Virginia
prepare the way not only for the Federal Convention but for the State ratify-
ing conventions as well. New Jersey, Pennsylvania, North Carolina, and Dela-
ware promptly followed suit, and by February 1787 five States had already
appointed their delegates.
Faced with this development, the Continental Congress on February 21,
1787, reluctantly endorsed the Philadelphia Convention. This removed all
doubt as to the legality of the Convention, and seven more States promptly
appointed delegates. Rhode Island, by its own choice, was the only member
of the Confederation not represented at the Convention.
The inability of the Continental Congress to play a role in the drafting of
the new Constitution was probably a blessing. As Madison diplomatically
put it in his preamble to the Virginia resolution, a Philadelphia Convention
would be “preferable to a discussion of the subject in Congress, where it
might be too much interrupted by ordinary business, and when it would, be-
sides, be deprived of the counsels of individuals who are restrained from a
seat in that assembly.” 25 One of the real reasons, of course, was that the Con-
tinental Congress was a rather lackluster body, possessing neither the politi-
cal acumen nor the prestige to lead the nation in the formation of a new gov-
ernment. As one noted constitutional historian, George Ticknor Curtis, put
it, Congress was bypassed because “the highest civil talent of the country was
not there. The men to whom the American people had been accustomed to
look in great emergencies—the men who were called into the convention,
and whose power and wisdom were signally displayed in its deliberations—
were then engaged in other spheres of public life, or had retired to the repose
which they had earned in the great struggle with England.” 26 James Madi-
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increasingly difficult to secure a quorum. After the first of March, 1781, so irregular were
the States in attendance, and so swiftly grew the spirit of apathy towards the Confedera-
tion, it was practically impossible to obtain the consent of nine States to any proposition.
Often there were not more than ten delegates present, representing only five or six States.
Frequently a few members assembled and adjourned for lack of a quorum. The most
eminent men of the country were serving it outside of Congress.” The Constitutional His-
tory of the United States, 1765–1895 (Chicago: Callaghan & Co., 1902), I: 246.
27. Elliot, Debates, I: 120.
28. See the credentials of the delegates to the Federal Convention in Elliot, Debates, at
126 –139. The New Jersey delegation, enjoying broad authority, was empowered to “render
the Constitution of the Federal Government adequate to the exigencies” of a viable union;
the Delaware, Pennsylvania, and Virginia delegates were instructed to “join with them
[other delegates] in devising, deliberating on, and discussing, all such alterations and fur-
ther provisions as may be necessary to render the Federal Constitution fully adequate to
the exigencies of the union”; the New Hampshire and North Carolina delegates were com-
missioned “to discuss and decide upon the most effective means to remedy the defects of
our Federal union, and to procure and secure the enlarged purpose which it was intended
son, one ofthe few delegates to the Federal Convention who held a seat in
the Continental Congress, did more than anyone else to keep the Congress
in the shadows and out of the way.
the federal convention
The delegates to the Federal Convention, all of them appointed by their State
legislatures, began assembling in early May 1787. Lacking a quorum—that is,
a sufficient number of delegates from at least seven States— on the appointed
day (May 14), the Convention did not convene for business until May 25.
Its task was completed nearly four months later, on September 17. Although
the Continental Congress had authorized these proceedings, the delegates
confronted a number of political and legal difficulties in seeking to change
the Articles of Confederation. In the first place, the authorizing resolution
adopted by the Congress, even though it did not purport to define the pow-
ers or specify the procedures of the convention (which thus gave the dele-
gates the freedom they needed to apply their own knowledge and wisdom),
nevertheless limited the scope of their proceedings to a revision of the Ar-
ticles. Specifically, it declared that the delegates were to meet in Philadelphia
for “the sole and express purpose of revising the Articles of Confederation.” 27
Moreover, the instructions given to the delegates by their State legislatures
varied from State to State, with some expressly or implicitly limiting their
authority to “revising the Articles of Confederation.” 28 In the second place,
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to effect.” The delegates from Massachusetts, New York, and Maryland, on the other hand,
were flatly restricted to “revising the Articles of Confederation.”
Article XIII of the Articles provided another barrier by requiring that all pro-
posed amendments were to be approved by a unanimous vote of the States in
Congress and ratified “by the legislatures of every State.”
From the outset, then, the architects of the Constitution confronted seem-
ingly insurmountable obstacles in their efforts to establish a new govern-
ment. Even the prospect oflimiting their task to modest amendments of the
Articles seemed doomed to failure, given the unanimity requirement and
Rhode Island’s intransigence. But the solution to these difficulties was already
provided by the Virginia resolution of November 1786 that had forced the
hand of Congress and encouraged the States to act independently. It derived
from a powerful and enduring, if not dominant, strain in the American po-
litical tradition that found expression in the Declaration of Independence,
namely the principle ofconsent that embraced the fundamental right of
the people “to institute new government, laying its foundation on such prin-
ciples and organizing its powers in such form, as to them shall seem most
likely to effect their safety and happiness.” Clearly, if the American people
had a right to revolt against the British government, secede from the British
empire, and live independently under a government of their own choosing,
they also possessed a right to alter or even abolish the Articles of Confedera-
tion. This right of self-government, as the reasoning of the Declaration makes
clear, is anterior to, and more fundamental than, any act of the Continental
Congress or even the Articles. Accordingly, it provided “legitimate” grounds
for the delegates to disregard the obstacles posed by Congress or the Articles
to the creation of an entirely new national government. James Wilson of
Pennsylvania, one of the most influential members of the Federal Conven-
tion, put the matter succinctly when he later addressed the Pennsylvania rati-
fying convention. Critics of the new Constitution, he observed, have argued
that “the very manner of introducing this constitution, by the recognition of
the authority of the people, is said to change the principle of the present Con-
federation, and to introduce a consolidating and absorbing government.”
But such is not the case, he argued; sovereignty resides in the people. “The
people therefore have a right . . . to form either a general government or state
governments. . . . This, I say, is the inherent and unalienable right of the
people.” The Declaration ofIndependence, he concluded, strengthened and
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29. Elliot, Debates, III: 455– 457.
30. Farrand, Records of the Federal Convention, I: 22.
31. Ibid., II, 91 (Oliver Ellsworth of Connecticut). “Conventions of the people, or with
power derived expressly from the people,” he continued, “were not then thought of.
The Legislatures were considered as competent. Their ratification has been acquiesced in
without complaint. To whom have Congress applied on subsequent occasions for fur-
ther powers? To the Legislatures; not to the people. The fact is that we exist at present . . .
as a federal society.” Roger Sherman of Connecticut expressed similar misgivings, and
“thought such a popular ratification unnecessary, the Articles ofConfederation provid-
ing for changes and alterations with the assent of Congress and ratification of State legis-
latures.” (Ibid., I: 122). Elbridge Gerry ofMassachusetts “seemed afraid of referring the
affirmed this principle. Quoting from the Preamble, Wilson emphasized
that, to secure the rights of life, liberty, and the pursuit of happiness, “gov-
ernments are instituted among men, deriving their just powers from the con-
sent of the governed. . . . This is the broad base on which our independence
was placed. On the same certain and solid foundation this [new] system is
erected.” 29
The fact that the delegates were not meeting in the Continental Congress,
as required by the Articles, but in a constitutional convention—for the sole
purpose of “revising the Articles of Confederation”—gave a clear indication
even before the Convention got under way that the old way of writing a con-
stitution, much as a legislative assembly would draft a statute, was no longer
acceptable. In the first days of the convention, Governor Edmund Randolph
presented the Virginia Plan to the delegates, a proposed constitution, much
ofit apparently written by Madison, that served as the principal focus of
debate during the early stages of the Convention. The 15th Resolution of the
Virginia Plan, embodying the principles of the Virginia resolution of 1786,
provided “that the amendments which shall be offered to the Confederation
by the Convention, ought . . . to be submitted to an assembly or assemblies
of representatives, recommended by the several legislatures, to be expressly
chosen by the people, to consider and decide thereon.” 30 In effect, the Virginia
Plan rejected the very procedure required by the Articles of Confederation
and proposed instead that the American people approve any changes of a
constitutional nature in State ratifying conventions.
Notwithstanding the progress that had been made in Massachusetts and
New Hampshire, a few New England delegates at the Philadelphia Conven-
tion expressed opposition on June 5 to this “new set of ideas [which] seemed
to have crept in since the Articles of Confederation were established.” 31 But
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new system to them [the people]. The people . . . have (at this time) the wildest ideas of
government in the world.” (Ibid., 123). Rufus King of Massachusetts also believed “the leg-
islature competent to the ratification.” (Ibid.).
32. Ibid., 122–123. Speaking again to this issue on July 23, Madison “considered the
difference between a system founded on the Legislatures only, and one founded on the
people, to be the true difference between a league or treaty, and a constitution. . . . A law
violating a treaty ratified by a preexisting law, might be respected by the Judges as a
law, though an unwise and perfidious one. A law violating a constitution established by
the people themselves, would be considered by the Judges as null & void.” (Ibid., II: 93).
33. Ibid., II: 88 –89.
the Virginians held their ground. A radical departure from the procedure
prescribed by the Articles was justified, said Madison, “because the new con-
stitution should be ratified in the most unexceptionable form, and by the
supreme authority ofthe people themselves.” To be sure, “the Articles of
Confederation were defective in this respect, resting . . . on the legislative
sanction only.” 32 George Mason agreed. When the issue came up again on
July 23, Mason declared that he “considered a reference of the plan to the au-
thority of the people as one of the most important and essential of the Reso-
lutions. The legislatures have no power to ratify it. They are the mere crea-
tures of the State constitutions and cannot be greater than their creators.”
Constitutions, he insisted, “are derived from the people. This doctrine
should be cherished as the basis of free government.” Pointing to recent de-
velopments in the States, he reminded the delegates that “In some States, the
governments were not derived from the clear and undisputed authority of
the people. This was the case in Virginia. Some ofthe best and wisest citi-
zens considered the constitution as established by an assumed authority. A
National Constitution derived from such a source would be exposed to the
severest criticisms.” 33 These arguments carried the day, and the issue was not
again debated in the Federal Convention.
Hearing no objections, the Framers abandoned the unanimity require-
ment and in Article VI of the new Constitution provided that “The Rati-
fication of the conventions of nine States shall be sufficient for the estab-
lishment of this Constitution between the States so ratifying the same.”
Randolph and Mason were the chief supporters of nine, as nine States were
required for important legislation under the Articles, and it was best, they ar-
gued, to preserve ideas already familiar to the people. As a concession to the
States, the Framers provided under Article V that two-thirds of both houses
of Congress or the States could in the future propose amendments to the
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34. Article IV ofthe Articles ofConfederation, designed “to secure and perpetuate
mutual friendship and intercourse among the people of the different States in this union,”
guaranteed the “free inhabitants” of each State the privileges and immunities of free citi-
zens in each State, and “free ingress and regress to and from any other State,” including
the enjoyment therein “of all the privileges of trade and commerce.” In addition, Article
IV provided for the interstate rendition of fugitives from justice and required each State
to give “full faith and credit” to the records, acts, and judicial proceedings of the courts of
each State. A number of these provisions were reaffirmed, sometimes word for word, in
Article IV of the new Constitution. Though known as the federalism article, Article IV of
the Constitution is actually rooted in the law of nations. Many of its provisions are based
on principles of “comity” or international law developed over the centuries through treaty
practices and the writings of jurists.
Constitution, but that ratification would require the approval of the States—
either three-fourths of the State legislatures or three-fourths of the States
meeting in convention. The inclusion of these provisions gave the new Con-
stitution an important democratic element it lacked under the Articles while
at the same time preserving the principle of State representation in the
amendment process. By giving the States the last word at the ratification
stage, the Framers also made the States the final arbiters of any major consti-
tutional conflict that might trigger the amendment device. These principles
were further extended to the new bicameral Congress under the Constitu-
tion, with the House of Representatives serving to represent the people and
the Senate the States. Ironically, the creation of the Constitution in 1787 is the
only instance in which the State legislatures have initiated a change of the fun-
damental law since the Constitution was adopted. All the amendments since
then have been proposed by Congress, and only one of these—the Twenty-
first, repealing the Prohibition Amendment—has been ratified by State con-
ventions. All the rest have been approved by State legislatures.
The document that ultimately emerged from the Federal Convention re-
sembled the State constitutions more than it did the Articles of Confedera-
tion, although a few provisions involving such matters as interstate relations
were carried over to the new system.34 State precedents also influenced the
constitution-making process. Like the newer State constitutions, the Ameri-
can Constitution was created by a special convention, not a legislative as-
sembly. It would be proposed for ratification not by the State legislatures
but by the people of each State sitting in convention. If adopted, it would be
a constitution resting on the consent of the governed and on popular sover-
eignty—not “the people” abstractly considered in an inchoate mass, how-
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35. A. V. Dicey makes a useful distinction between political and legal sovereignty in his
commentary on the English Constitution. From a legal standpoint, the sovereign power
in Great Britain is Parliament, or what is sometimes referred to as “the king in parlia-
ment.” But the word sovereignty may also be applied in a political sense: “That body is
‘politically’ sovereign or supreme in a state the will of which is ultimately obeyed by the
citizens of the state. In this sense of the word the electors of Great Britain may be said to
be . . . the body in which sovereign power is vested.” (Introduction to the Study of the Law
of the Constitution, 27).
36. The traditional English doctrine that the king is the “fountain” of all law and jus-
tice has become a legal fiction under the English Constitution, particularly since the rise
of parliamentary supremacy in the late seventeenth century. The English monarch is now
said to be “a sovereign who reigns but does not rule.” (Vernon Bogdanor, The Monarchy
and the Constitution [Oxford: Oxford University Press, 1995], 1).
ever, but the people organized in the various States. In this respect, the Con-
stitution rested on a unique form of divided sovereignties, with ultimate po-
litical sovereignty residing in the people and legal sovereignty shared by the
States and the national government.35 The American people, in other words,
would be the source of all political power under the proposed plan of gov-
ernment, as contrasted with a monarchical system, wherein all power origi-
nates in the crown.36 According to the English theory, the government is also
the source of individual rights, as contrasted with the American perspective,
which holds that rights originate with the people and are, according to the
Declaration of Independence, “endowed by their Creator.” These principles
respecting the origin of power and rights under the American system are
affirmed in the Ninth and Tenth Amendments of the Federal Constitution.
Under the Constitution the people retain certain undefined rights and pow-
ers. The enumeration of certain rights in the Constitution shall not be con-
strued to deny others retained by the people, and those powers which the
people did not retain for themselves they delegated to the States or to the na-
tional government. Critics of the Constitution were quick to argue that sov-
ereignty cannot be divided and that the proposed system would therefore fail.
To be sure, as a constitutional, democratic, and federal republic of delegated
powers, the new American system ofgovernment was an experiment in pol-
itics without historical parallel.
the rat ification struggle
Given the unavoidable controversy surrounding the legality of writing a new
constitution and the opposition of many important political leaders, there
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37. Elliot, Debates, I: 319. George Washington, who presided over the Federal Conven-
tion, informed the members of the Continental Congress, in his transmittal letter of Sep-
tember 17, 1787, that they should not expect a flawless document in regard to the rights
of the States. “It is obviously impracticable in the federal government of these States,” he
wrote, “to secure all rights of independent sovereignty to each, and yet provide for the in-
terest and safety of all. . . . It is at all times difficult to draw with precision the line between
those rights which must be surrendered, and those which may be reserved,” particularly
when there is such “a difference among the several States as to their situation, extent,
habits, and particular interests. . . . That it will meet the full and entire approbation of
every State is not perhaps to be expected.” (Farrand, Records, II: 666 –67).
was considerable doubt when the delegates left Philadelphia whether nine
States could be persuaded to ratify the proposed Constitution. The first
hurdle was the Continental Congress. Could it be counted on to vote itself
out of power? Fortunately, Congress made no issue of the Convention’s au-
thority to draft a new document when, on September 20, 1787, it received the
Convention report on the Philadelphia proceedings and a copy of the pro-
posed Constitution. On September 28, the Congress voted unanimously to
transmit “the said report, with the resolutions and letter accompanying the
same . . . to the several legislature, in order to be submitted to a Convention
of delegates chosen in each State, by the people thereof.” 37
Thus began the ratification struggle. All thirteen States ultimately ratified
the Constitution, and by June 1788 it had become the law of the land. The first
State to ratify was Delaware, which voted unanimously in favor of the new
Constitution on December 7, 1787. Five days later, Pennsylvania accepted the
document by a vote of 46 to 23. New Jersey and Georgia soon joined these
States, both by unanimous votes, followed by Connecticut, which accepted
the Constitution on January 9, 1788, by a vote of 128 to 40. From this time for-
ward, however, the struggle over ratification intensified and the possibilities
for failure increased. In some State ratifying conventions the Constitution
was approved by narrow pluralities, particularly in the larger States of Mas-
sachusetts, Virginia, and New York. Massachusetts became the sixth State to
ratify, on February 6, 1788, but by the slim margin of 187 to 168. Maryland
ratified, 63 to 11, on April 28, and South Carolina voted in favor of the Con-
stitution on May 23 by 149 to 73. New Hampshire became the ninth State to
ratify, on June 21, 1788, thereby putting the Constitution into effect. The vote
there was perilously close, however: 57 to 46.
Thus, when Virginia ratified the Constitution on June 25 and New York
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38. The North Carolina Convention voted on August 2, 1788, “neither to ratify nor re-
ject the Constitution,” by a lopsided majority of 184 to 84 (Elliot, Debates, IV: 251). Sup-
port for the Constitution was limited to a small group of counties in the northeastern
section ofthe State and one county in the Cumberland region. The rest ofthe State was
almost entirely Anti-Federalist. In twenty-five counties, every delegate opposed the Con-
stitution (Louise Irby Trenholme, The Ratification of the Federal Constitution in North
Carolina [New York: AMS Press, 1967], 163–164).
39. Essays written in support ofthe Constitution, aside from those in The Federalist,
are collected in Colleen A. Sheehan and Gary L. McDowell, eds., Friends of the Consti-
tution: Writings of the “Other” Federalists, 1787–1788 (Indianapolis: Liberty Fund, 1998).
Most of the Anti-Federalist writings appear in The Complete Anti-Federalist, ed. by Her-
bert J. Storing (Chicago: University of Chicago Press, 1981), 7 vols. See also Paul Leicester
Ford, ed., Essays on the Constitution Published during Its Discussion by the People, 1787–
1788 (New York: Burt Franklin, 1970); Paul Leicester Ford, ed., Pamphlets on the Consti-
tution of the United States (New York: Da Capo Press, 1968). The Federal Farmer was per-
haps the most frequently read Anti-Federalist writer, and his letters “became a sort of text-
book for the opposition to the Constitution as The Federalist became for the supporters of
the document.” (Walter Hartwell Bennett, ed., Letters from the Federal Farmer to the Re-
publican [Tuscaloosa: University of Alabama Press, 1978], xxxvi).
followed suit on July 26, 1788, the Constitution was already in place. The mar-
gin ofvictory in both states was nevertheless a narrow 89 to 79 in Virginia
and a breathtaking 30 to 27 in New York. North Carolina, the only State to re-
ject the Constitution, voted a second time and on November 21, 1789, finally
agreed to join the Union, by a vote of195 to 77.38 On May 29, 1790, Rhode
Island grudgingly became the last ofthe thirteen original States to ratify—
by a plurality of only two votes, 34 to 32.
The great debate over the Constitution extended beyond the walls of the
ratifying conventions, of course, and throughout the nation there was an
outpouring of pamphlets, sermons, and newspaper essays on the new plan of
government. A wide variety of views was expressed, ranging from complete
to conditional acceptance with amendments to flat rejection.39 Those who
favored ratification were called Federalists, and those opposed, for lack of a
better term, came to be known as the Anti-Federalists. The Federalists tended
to favor a stronger national government, which the new Constitution prom-
ised to bring, whereas the Anti-Federalists inclined toward a weaker national
government that better protected States’ rights.
Alexander Hamilton, who had been a delegate to the Philadelphia Con-
vention, was the leader of the ratification forces in New York. Though only
thirty years old, he had already acquired a national reputation. After distin-
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40. Robert Yates and John Lansing, Jr., to the Governor of New York, December 21,
1787, in Elliot, Debates, I: 480 – 481. Governor Clinton presented the “Letter ofDissent”
to the New York legislature without comment. It was promptly printed in eight New
York newspapers, a nationally circulated magazine called The American Museum, a Phila-
delphia newspaper, and in eleven other newspapers from New Hampshire to Georgia
(John R. Kaminski, “New York: The Reluctant Pillar,” in The Reluctant Pillar: New York
and the Adoption of the Federal Constitution, ed. by Stephen L. Schecter [Troy, N.Y.: Rus-
sell Sage College, 1985], 64 –65).
guishing himself as a leader in battle during the early stages of the Revolution,
he was selected by General Washington to be an aide-de-camp. He served in
this capacity for four years. Later, upon resuming command in the field, he
once again demonstrated his bravery and leadership in 1781 in the Battle of
Yorktown. After this decisive event, he served briefly (1782 –1783) in the Con-
tinental Congress as a delegate from New York. Hamilton was an ardent
nationalist who believed in a strong national government, far stronger than
that provided for by the Articles of Confederation. As a member of the State
legislature, he was primarily responsible for New York’s participation in the
Annapolis Convention of 1786.
Hamilton was also instrumental in persuading the New York legislature to
participate in the Constitutional Convention. New York sent only three dele-
gates: Alexander Hamilton, Robert Yates, and John Lansing. Hamilton did
not speak frequently in the Convention and was absent much of the time be-
cause of personal business and political differences with the other members
of the New York delegation. Both Yates and Lansing were defenders of States’
Rights who opposed the Constitution from the start. The proposed Consti-
tution, they later told Governor George Clinton, would create “a system of
consolidated Government that could not in the remotest degree have been
in [the] contemplation of the Legislature of this State.” Indeed, “a general
Government” such as the one proposed by the Convention in Philadelphia
“must unavoidably, in a short time, be productive ofthe destruction of
civil liberty . . . by reason ofthe extensive territory ofthe United States,
the dispersed situation of its inhabitants, and the insuperable difficulty of
controlling the views of a set of men possessed of all the powers of govern-
ment.” 40 Because each State enjoyed only one vote in the Convention and
delegates were therefore required to vote as a unit rather than individually,
Hamilton found himself a minority of one on most critical issues, with Yates
and Lansing controlling the State’s vote on every question. On July 10,
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41. The letters of“Cato” and “Brutus” are reprinted in The Complete Anti-Federalist, II:
101–129, 358 – 452. Hamilton and Clinton were archrivals. According to Hamilton, it was
Clinton who recalled Yates and Lansing from Philadelphia in early July. While the Con-
vention was still sitting, Hamilton published a letter in The Daily Advertiser on July 21,
1787, accusing Clinton of having expressed the view “in public company” that the Con-
vention was unnecessary and mischievous. This gave rise to an exchange ofletters between
Clinton’s defenders and Hamilton. It was thought for many years that Hamilton was also
the author ofthe letters of “Caesar,” which were published in The Daily Advertiser in
October 1787 in response to the letters of “Cato,” but recent research has now cast con-
siderable doubt on Hamilton’s authorship (see Storing, The Complete Anti-Federalist, II:
101–104). In any event, it is clear that Hamilton had already launched a public debate on
the Constitution in New York before taking up The Federalist.
Yates and Lansing withdrew from the Convention in disgust, thereby can-
celing Hamilton’s vote altogether. Hamilton first left the Convention on
June 29, returned briefly in mid August, and then resumed his seat in early
September until the work of the Convention was completed. Despite these
absences and the futility of his vote, Hamilton was present long enough to
get his views before the Convention and occasionally join in the debate.
It was during the ratification struggle that Hamilton exerted the greatest
influence, however, and not in the Philadelphia Convention. This he accom-
plished in two ways: as the moving force behind The Federalist and as the
leader of the Federalists in the New York ratifying convention. The Federalist,
or the “Federalist Papers” as this collection ofessays is frequently called,
was a collaborative effort, but it was Hamilton who organized, directed, and
managed the project.
Only weeks after the Philadelphia Convention had finished its work,
Hamilton perceived the need to answer Anti-Federalist attacks on the pro-
posed Constitution that had already appeared in various New York news-
papers. The letters of “Cato,” thought by some scholars to be Governor
George Clinton, first appeared in the New York Journal on September 27,
1787, the same edition that carried the text of the proposed Constitution. Par-
ticularly troublesome were the essays of “Brutus,” which have been attrib-
uted by some to Hamilton’s antagonist Robert Yates. They first appeared in
early October 1787 in the New York Journal and are among the best of the
Anti-Federalist essays, particularly on the structure and powers ofthe Fed-
eral judiciary.41 Hamilton quickly sensed the importance of these essays and
the need to explain the features of the new plan of government to the people
of New York.
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42. William Duer, a wealthy New York banker who had been a member of the Conti-
nental Congress, was also part of the original collaborative effort. He wrote a few essays,
but Hamilton apparently decided not to use them. Three of his essays, signed “Philo-
Publius,” were finally printed in an appendix to the J. C. Hamilton edition of The Feder-
alist in 1810. They have been described as “undistinguished in style and thought, despite
Madison’s praise” (Douglas Adair, “The Authorship ofthe Disputed Federalist Papers,”
in Fame and the Founding Fathers, ed. by Trevor Colbourn [Indianapolis: Liberty Fund,
1998]). Gouverneur Morris of Pennsylvania later claimed that he, too, “was warmly
pressed by Hamilton to assist in writing The Federalist” but declined the offer (Ibid.).
43. As M. E. Bradford has pointed out, however, Madison’s extreme nationalism was
a divisive force that almost wrecked the Convention. See his essay “The Great Conven-
tion as Comic Action,” in Original Intentions on the Making and Ratification of the United
States Constitution (Athens: University of Georgia Press, 1993), 6. According to Forrest
McDonald, “Of seventy-one specific proposals that Madison moved, seconded, or spoke
unequivocally in regard to, he was on the losing side forty times.” (Novus Ordo Seclorum:
Intellectual Origins of the Constitution [Lawrence: University Press of Kansas, 1985], 208 –
209). The claim that Madison is “the father of the Constitution,” concludes McDonald, is
a “myth.” (Ibid., 205).
44. Madison took a seat in the front of the Convention assembly, near George Wash-
ington, the presiding officer, in order to gain the best view of the proceedings. From this
vantage point he diligently recorded the debates and proceedings of the entire Conven-
tion. His notes were first published posthumously in 1840. The most recent edition, with
a daily chronology of activities in the Convention, extensive annotations, and a constitu-
tional index, is the Debates in the Federal Convention of 1787 as Reported by James Madison,
To this end he enlisted the help ofJames Madison and John Jay, two avid
and very prominent supporters of the new Constitution.42 Hamilton could
scarcely have done better than to secure the assistance ofMadison in this
enterprise. Despite the fact that Madison had suffered many disappoint-
ments and defeats in the Federal Convention, he was in many ways the
“Father of the Constitution,” 43 for it was Madison who had worked tirelessly
to establish the new Constitution, and his guiding spirit could be seen behind
every important development that led up to the Convention, including the
Mount Vernon conference in 1784, the Annapolis Convention of 1786, and
Virginia’s call for a Philadelphia convention in 1787. No less conspicuous was
his leadership in the Continental Congress and in the Federal Convention it-
self, to say nothing of his role in the ratification struggle in 1787–1788 and in
the creation of the Bill of Rights in 1789. And to this day we still rely substan-
tially on Madison’s exhaustive Notes of the Debates in the Federal Convention
in order to follow the deliberations of the Convention, determine the origi-
nal intent of the Framers, and perceive the meaning of most provisions of the
Constitution.44 At the age of thirty-six, Madison had already acquired a repu-
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ed. by James McClellan and M. E. Bradford (Richmond: James River Press, 1989). Other
members of the Philadelphia Convention took fragmentary notes, including Robert Yates
ofNew York, Rufus King ofMassachusetts, and James McHenry ofMaryland. These, the
notes ofMadison, and those of other delegates are published in Farrand, Records of the
Federal Convention. John Lansing’s extensive notes, not available to Farrand, were first
published separately in 1939. See The Delegate from New York, ed. by Joseph Reese Strayer
(Princeton: Princeton University Press).
tation of brilliance for his mastery of political and constitutional theory and
extensive knowledge ofgreat political treatises applicable to the American
situation. Hamilton could also rely on Madison to bring a nationalist point
of view to the project, for Madison shared Hamilton’s conviction that the
young republic needed a much stronger national government if the nation
were to remain free and independent.
Though only forty-two years of age, John Jay was the senior member of the
triumvirate that produced The Federalist. He brought a wealth of experience
to the task. During the American Revolution, Jay had served on the Com-
mittee of Correspondence and in both the first and second Continental Con-
gresses. A prominent New York lawyer, he played a leading role in drafting
New York’s first constitution in 1777, and that same year he was appointed
Chief Justice of the New York Supreme Court. Upon his return to the Conti-
nental Congress in 1778, Jay was appointed to a number of diplomatic posts.
In 1783, with Benjamin Franklin and John Adams, he negotiated the Treaty
of Paris (1783) that officially ended the American Revolution and granted the
States independence from Great Britain.
Between late October 1787 and the end of May 1788, Hamilton, Madison,
and Jay wrote eighty-five essays favoring adoption of the proposed Constitu-
tion. These essays were published in four New York newspapers at irregular
intervals well into the summer of 1788, and some were reprinted in Virginia
and New England. While controversy over the authorship of certain essays
has persisted for decades, recent scholarship confirms that Hamilton wrote
fifty-one (Nos. 1, 6 –9, 11–13, 15–17, 21–36, 59 – 61, and 65 – 85), Madison
twenty-nine (Nos. 10, 14, 18 –20, 37–58, and 62 – 63), and Jay, ill during much
of this period, only five (Nos. 2–5 and 64). It was common in the eighteenth
century, in England as in the American colonies, to publish political essays
under a classical pseudonym in order to identify with a Roman statesman—
particularly a republican—and conceal one’s identity. The Federalist essays
were all signed “Publius,” a reference to Publius Valerius Publicola, the leg-
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endary Roman statesman and general of the sixth century B.C. who was
renowned for his eloquence, generosity, and dedication to republican princi-
ples of government. In Plutarch’s Lives, Publius is said to have been so adored
by the people ofRome that they called him “Publicola,” or “people lover.”
the significance of the federalist
What is the significance of The Federalist, and why have generations of Amer-
icans relied so extensively on the essays ofPublius in order to understand and
appreciate the genius of the American political regime? To answer this ques-
tion we must look beyond the ratification struggle to the historical develop-
ment and interpretation of the Constitution. It is impossible to know with
certainty, of course, what impact The Federalist had in securing New York’s
acceptance of the proposed Constitution, but we do know that it had virtu-
ally no effect on the ratification and final adoption of the Constitution. This
is so because the Constitution had already been ratified by nine States and
was in effect when New York and Virginia finally got around to joining the
Union in the summer of 1788. The Federalist, then, is important not because
of its immediate impact on the ratification struggle but because of its contri-
butions to our understanding of the constitutional system.
Within the pages of The Federalist is the whole theory of American con-
stitutional government. Here Publius explains the structure upon which the
Constitution is built and the rationale of the Framers in constructing a re-
publican form of government based on a separation and division of powers.
Why did the Framers favor two legislative chambers (a bicameral system)
over a single one (a unicameral system)? What interests were to be repre-
sented in these assemblies? Why did they provide for a single instead of a
plural executive? Why did they give Federal judges life tenure, during “good
behavior,” rather than a limited term of office? Why did they grant certain
powers to the central government and reserve others to the States? More fun-
damentally, why did they fear a concentration of power and prefer limited
government?
The answers to these and other important questions about the nature and
purpose of the constitutional design, and the meaning of virtually every po-
litical principle and clause in the Constitution, will be found in these essays.
The Federalist is thus a window through which we may view the proceedings
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45. The essays of Publius have been considered essential reading among political
thinkers and jurists almost from their inception. Justice Joseph Story used The Federal-
ist as the foundation for the development of his famous three-volume Commentaries on
the Constitution (1833). He described The Federalist as “an incomparable commentary of
three of the greatest statesmen of their age.” William Alexander Duer, a noted educator
and jurist and the son of William Duer, who assisted Hamilton in the Federalist project,
based his popular Course of Lectures on the Constitutional Jurisprudence of the United
States (1845) on The Federalist and the writings of prominent State and Federal jurists.
Members ofthe Supreme Court have drawn from The Federalist in their interpretations
of the Constitution for two centuries. “The opinion of The Federalist,” wrote Chief Justice
John Marshall, “has always been considered as of great authority. It is a complete com-
mentary on our Constitution, and is appealed to by all parties.” (Cohens v. Virginia, 16
Wheaton 264, 418 [1821]). For an analysis of The Federalist and an estimate of its impor-
tance, see George W. Carey, The Federalist: Design for a Constitutional Republic (Urbana:
University ofIllinois Press, 1989); Martin Diamond, As Far as Republican Principles Will
Admit (Washington, D.C.: AEI Press, 1992); Gottfried Dietz, The Federalist: A Classic of
Federalism and Free Government (Baltimore: Johns Hopkins Press, 1960); and David
Epstein, The Political Theory of The Federalist (Chicago: University of Chicago Press). See
also notes 60 –61, infra.
of the Philadelphia Convention and see how the system is supposed to work.
It sheds light on the deliberations of the Framers, helping us know and un-
derstand and appreciate their reasoning and political theories and the origi-
nal intentions behind the Constitution they created. It is not too much to say
that a reading of The Federalist is indispensable to an understanding of the
American Constitution.45
At the same time, we should be mindful that The Federalist does not tell
the complete story or provide all the answers. It is not a treatise on political
philosophy concerned with natural law, the origin and nature of the state, or
the best form of government in the abstract. Although it is timeless in the
sense that it rests on fixed principles and enduring truths concerning such
matters as the threat to liberty that is created by a consolidated government,
The Federalist is a commentary on the American Constitution, a collection
ofessays on the theory ofAmerican government that is in many respects
inapplicable to other political systems. A reading of The Federalist is not
likely to improve one’s understanding offoreign governments or explain
why the American constitutional system is any better than another form of
government.
Moreover, the essays ofPublius are only one of many original sources on
the thinking of those who participated in the formation and adoption of the
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46. See note 44, supra.
47. Although the proceedings ofsome State ratifying conventions were published
earlier, Jonathan Elliot was the first to publish a comprehensive edition of the debates in
the several State ratifying conventions. Elliot’s Debates in the Several State Conventions on
the Adoption of the Federal Constitution (4 vols.) was first published in Philadelphia in
1830. A revised edition appeared in 1836, and in 1845 Elliot added a fifth volume to include
James Madison’s Notes of the Debates in the Federal Convention. Not all of the State rati-
fication proceedings available to Elliot were entirely accurate or complete, and three
States—Delaware, New Jersey, and Georgia—kept no record of their debates. Elliot also
excluded the debates of the second ratifying convention of North Carolina and those of
Rhode Island, which finally ratified the Constitution in 1790. See also Patrick T. Conley
and John R. Kaminski, eds., The Constitution and the States: The Role of the Original Thir-
teen in the Framing and Adoption of the Federal Constitution (Madison, Wisc.: Madison
House, 1988); Michael Allen Gillespie and Michael Lienesch, eds., Ratifying the Constitu-
tion (Lawrence: University Press ofKansas, 1989).
48. See The Documentary History of the Ratification of the Constitution, ed. by Merrill
Jensen, John R. Kaminski, Gaspare J. Saledino, et al., 14 vols. to date (Madison: State His-
torical Society of Wisconsin, 1976 – ).
49. See Creating the Bill of Rights: The Documentary Record from the First Federal Con-
gress, ed. by Helen E. Veit, Kenneth R. Bowling, and Charlene Bangs Bickford (Baltimore:
Johns Hopkins University Press, 1991); The Complete Bill of Rights, ed. by Neil H. Cogan
(New York: Oxford University Press, 1997); The Bill of Rights: Original Meaning and Cur-
rent Interpretation, ed. by Eugene W. Hickok, Jr. (Charlottesville: University ofVirginia
Press, 1991).
50. See The Federal and State Constitutions, Colonial Charters, and Other Organic
Laws . . . of the United States of America, ed. by Frances Newton Thorpe, 7 vols. (Wash-
ington, D.C.: Government Printing Office, 1909).
51. See Donald S. Lutz, ed., Colonial Origins of the American Constitution: A Documen-
tary History (Indianapolis: Liberty Fund, 1998), and, by the same author, The Origins of
American Constitutionalism (Baton Rouge: Louisiana State University Press, 1988); Jack P.
Constitution. There are the debates in the Philadelphia Convention, dutifully
recorded by James Madison and other delegates;46 the voluminous debates in
the State ratifying conventions;47 and the various essays, newspaper accounts,
and correspondence of other participants who took a stand on the new Con-
stitution.48 And if we include the first ten amendments, or the Bill of Rights,
as they came to be known, as part of the original constitutional edifice, then
to get the full picture we must consult yet another source—the debates of
the First Congress, which drafted and proposed the Bill of Rights in 1789.49
And to these sources should be added those not so directly related to the
drafting and ratification of the Constitution. Among these would be the State
constitutions previously discussed; 50 the practices, institutions, and ordering
documents of Anglo-Americans during the colonial period; 51 many political
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Greene, ed., The Nature of Colony Constitutions (Columbia: University of South Carolina
Press, 1970).
52. See, for example, Charles S. Hyneman and Donald S. Lutz, eds., American Political
Writing during the Founding Era, 1760 –1805, 2 vols. (Indianapolis: Liberty Fund, 1983);
Ellis Sandoz, ed., Political Sermons of the American Founding Era, 2 vols. (Indianapolis:
Liberty Fund, 1998); C. Ellis Stevens, Sources of the Constitution of the United States (New
York: Macmillan, 1927); Trevor Colbourn, The Lamp of Experience (Indianapolis: Liberty
Fund, 1998); Forrest McDonald, Novus Ordo Seclorum: The Intellectual Origins of the Con-
stitution (Lawrence: University Press ofKansas, 1985).
53. The sessions of the Philadelphia Convention were conducted in secrecy, and it was
agreed that the delegates would maintain and protect the confidentiality of the proceed-
ings after they returned home. When the Convention adjourned, the Secretary, William
Jackson, delivered the Journal and other miscellaneous papers to George Washington,
who in turn deposited them with the Department of State. In 1818, however, Congress
broke the seal ofsecrecy and ordered the Journal to be printed. This was accomplished
the following year under the personal direction of John Quincy Adams, then Secretary of
State. Despite the urgings of friends and colleagues, Madison declined to publish his Notes
of the Debates in his lifetime. Not all of the other delegates shared this commitment. In
1821, Yates’s Secret Proceedings and Debates of the Convention Assembled at Philadelphia
were printed, together with Luther Martin’s extended letter ofJanuary 27, 1788, to the
Speaker of the Maryland House of Delegates entitled “The Genuine Information.” The
notes ofWilliam Pierce of Georgia, accompanied by character sketches of his fellow
delegates, were also printed in the Savannah Georgian in 1828. Notes taken by other dele-
gates did not surface until after the publication of Madison’s Notes (see Farrand, The Rec-
ords of the Federal Convention, I: xi–xxv).
writings and sermons of earlier periods, particularly those dealing with the
legitimate functions and ends of government; the character, rights and duties
of the English people, and their relation as British citizens to the sovereign; as
well as the dangers to be avoided in constructing governments.52 This is only
to say that the thoughts and actions ofthe Founders cannot be fully appre-
ciated without a knowledge of the political tradition of prerevolutionary
America. The essays of Publius, in other words, should be read in conjunc-
tion with other founding documents and are by no means the only source
of knowledge available to us for an understanding of the Framers’ thoughts
and intentions.
During the first half-century of the American republic, however, The Fed-
eralist was clearly the most significant, ifnot the only meaningful, resource for
understanding the intent of the Framers other than the words of the Consti-
tution itself. The Journal of the Convention, which contains no speeches or
debates and records only the Secretary’s minutes and tables giving the votes
by State on the questions presented, was not published until 1819.53 Not until
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54. Madison was the last surviving member of the Philadelphia Convention. When he
died in 1836, his collected papers were purchased by the Library of Congress. In 1840,
Henry D. Gilpin, working under the direction of a congressional committee, edited a
three-volume edition of The Papers of James Madison that included Madison’s Notes.
Jonathan Elliot added them to his collection of Debates . . . on the Adoption of the Federal
Constitution in 1845, and they have subsequently been republished in many other editions.
See notes 44 and 47, supra.
1830, when Jonathan Elliot collected and published the debates in several of
the State ratifying conventions, did Americans have easy access to the delib-
erations of the “other” founders who participated at the ratification stage in
the making of the Constitution. No less important, it was 1840 before James
Madison’s extensive Notes of the Debates in the Federal Convention were
finally published.54
It is noteworthy that the availability of these and other original sources
after the 1840s failed to dislodge The Federalist as the favorite and most fre-
quently cited guide to the theory of the Constitution and the substantive
meaning of its provisions, or to discredit in any way the reliability or accu-
racy of Publius’s representations. It is true, of course, that The Federalist is
polemical. It is forthrightly a campaign tract intended to persuade the elec-
torate to support the Constitution. As such it occasionally exaggerates the
perceived strengths of the Constitution and downplays or ignores its weak-
nesses. But this bias hardly detracts from its great merit as a faithful exposi-
tor of the meaning of the Constitution from the perspective of those who
made it.
Immediately recognized as authoritative, The Federalist became a classic
even before it was completed. The first thirty-six essays were published in
New York by J. McLean & Company in a bound volume on March 22, 1788.
The remainder appeared in a second volume on May 28. In 1792 a French edi-
tion, which appeared in Paris, became the first to reveal the true identity of
the authors. Since then The Federalist has been translated into more than
twenty foreign languages, and nearly a hundred editions and reprintings of
it in English have appeared over the past two hundred years.
Between 1788 and 1818 the McLean edition was reprinted on four occa-
sions, the first being a 1799 edition published by John Tiebout in New York.
The popularity of The Federalist encouraged a New York printer named
George F. Hopkins to undertake a new edition in 1802. Hamilton reluctantly
agreed to this on condition that he be permitted to make modest revisions
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55. Adair, “The Disputed Federalist Papers,” Fame and the Founding Fathers, 41.
and corrections, but he rejected Hopkins’s suggestion that the names of the
real authors appear at the head of each essay, preferring to maintain their
anonymity. Inasmuch as the authorship of the essays had been generally
known for years anyway, Hamilton’s unwillingness to take credit for his con-
tributions is rather puzzling. Douglass Adair, the distinguished American
historian who closely studied the disputed authorship ofcertain Federalist
essays, has argued persuasively that Hamilton’s “strange reluctance” to pub-
licize the identity of the authors can probably be attributed to the fact that
“some of his essays written in 1787–1788 did not square with certain consti-
tutional theories he had come to espouse publicly after 1790.” 55
What distinguished Hopkins’s 1802 edition from earlier publications of
The Federalist was the addition of an appendix containing three documents.
The first two—the Articles of Confederation and the Constitution—were
intended to facilitate a reading of The Federalist in that they are the texts
upon which The Federalist is a commentary. But the third addition, which
consisted of seven essays by “Pacificus,” served a different purpose: to enlarge
upon or even change the substantive meaning of those essays in The Federal-
ist dealing with the executive power.
“The Letters ofPacificus,” as they were titled when they first appeared in
New York newspapers, grew out of a dispute in 1793 between Federalists and
Republicans concerning President Washington’s authority to issue a Decla-
ration ofImpartiality in the war between England and France. Writing as
Pacificus, Alexander Hamilton defended the Declaration against the charge
that the President had exceeded his powers. At the urging ofThomas Jeffer-
son, James Madison argued in favor of a narrow interpretation of the Presi-
dent’s power to declare the neutrality ofthe United States and, in the name
of “Helvidius,” produced five essays contending that only Congress had the
authority to determine whether the United States was at war or peace.
The “Letters ofPacificus” and “Letters ofHelvidius” offer one of the most
enlightening discussions of executive power in American political history.
They have long been regarded as important commentaries on the President’s
war and diplomatic powers—commentaries, it should again be noted, that
are not entirely consistent with the teachings ofPublius. Much to the dis-
may of Madison, however, the 1802 edition included only the “Letters of
Pacificus.” This was also true of the 1810 edition, again published in New
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56. “Gideon’s edition, carefully checked and formally issued, represented . . . Madison’s
official pronouncement on his contribution to the writing of The Federalist.” (Ibid., 47).
In an undated memorandum entitled “The Federalist,” written by Madison and deposited
in the Library of Congress, Madison asserted that “the true distribution of the numbers of
the Federalist among the three writers is . . . the Edition . . . of Gideon. It was furnished to
him by me, with a perfect knowledge of its accuracy, as it related to myself, and a full
confidence in its equal accuracy as it relates to the two others.” As quoted in Adair, ibid.
57. Adair speculates that the outcome ofthe War Between the States probably
brought about the demise of the Gideon edition after 1857. Madison’s “renown as states-
man and constitutional sage was at its peak with historians and the general public up to
the Civil War, over a period when Hamilton’s fame was undeservedly minimized.... From
York, which became the first American edition to identify the authors. This
particular edition proved to be most unsatisfactory, because it was published
not as a separate work but as the second and third volumes of the collected
Works of Hamilton.
The great turning point in the publishing history of The Federalist was the
appearance of the Jacob Gideon edition in 1818. Printed in Washington, D.C.,
with the cooperation of Madison, this edition was the first to give Madison’s
account of the disputed authorship of certain essays. The Gideon edition also
corrected another deficiency: “Former editions,” explained the publisher,
“had the advantage of a revisal from Mr. Hamilton and Mr. Jay, but the num-
bers written by Mr. Madison still remained in the state in which they origi-
nally issued from the press and contained many inaccuracies.” These prob-
lems had been resolved, however, because this new edition was produced
from Madison’s personal copy, “with corrections of the papers, of which he
is the author, in his own hand.”
Gideon boasted that, because of these changes, his version was now the
“standard edition,” and indeed it was in many ways a marked improvement
over the McLean edition. Besides being the first to include Madison’s side of
the story on the question of authorship, the Gideon edition was also the first
to print the final corrections of all three authors.56 And it was the first to in-
clude the essays ofboth Pacificus and Helvidius, as well as the Articles and
the Constitution, in the appendix. The 1818 Gideon edition, upon which this
Liberty Fund edition is based, was reprinted ten times, the last appearing in
1857. In 1863, Henry B. Dawson published a shorter version that omitted,
without explanation, the letters ofPacificus and Helvidius, and later editions
have followed this example, without questioning Dawson’s rationale for arbi-
trarily excluding these essays.57
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Editors’ Introduction
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the end ofthe Civil War to the beginning ofthe First World War the contestants’ roles
were reversed: Madison’s political reputation sank low, while Hamilton’s rose to great
heights. . . . Only when America became industrialized after 1865 could the Constitution
be reanalyzed, and Hamilton restored to favor as an ‘authority’ on ‘its ultimate mean-
ings’.”
(Ibid.,
49,
50 –51).
58. See The Letters of Pacificus and Helvidius, intro. by Richard Loss (Delmar, N.Y.:
Scholars’ Facsimiles & Reprints, 1976). A number of commentators have contended that
Pacificus has had a greater impact on the presidency than Helvidius, but it was Madison
who saw correctly into the future, warning that “war is the nurse of executive aggrandize-
ment.” As Edward S. Corwin has observed, “A summary history of the wars in which the
United States has engaged since the adoption of the Constitution” suggests that policies
advanced in Congress were responsible for the War of 1812 and the War with Spain, but
that “our four great wars . . . were the outcome of presidential policies in the making of
which Congress played a distinctly secondary role. I mean, ofcourse, the War with
Mexico, the Civil War, and our participation in the First World War and Second. ‘Hel-
vidius’ ’ contention that ‘Pacificus’ ’ reading of the ‘executive power’ clause contravened
the intention of the Constitution that the warmaking power should lodge with the legis-
lative authority has been amply vindicated.” (The Presidency: Office and Powers [New York:
New York University Press, 1957], 204).
59. Adair, “The Disputed Federalist Papers,” Fame and the Founding Fathers, 41– 42.
For reasons ofspace, and because the letters of Pacificus and Helvidius
are now readily available from other sources,58 the editors of this new Gideon
edition have also elected to exclude these essays. Moreover, it should be kept
in mind that there are many other writings ofHamilton and Madison that
might appropriately be included in an appendix on the ground that they
modify in one way or another the views expressed in The Federalist. The
inclusion of all this extraneous material would, quite obviously, render this
edition unwieldy, particularly since it already contains headnotes, an appen-
dix, a glossary, and an extensive index.
We should be mindful, too, that The Federalist does not represent the final
thoughts on the American Constitution of the men who wrote in the name
ofPublius. As Adair reminds us, “The Federalist . . . was not a scholarly com-
mentary on the meaning of an established constitution, it contained special
pleading designed to secure ratification for a Constitution still untested. After
the government was in operation, both Hamilton and Madison lived to re-
gret theories and interpretations they had advanced in 1787–1788 under the
name of‘Publius.’” 59
During the course of American history, then, various provisions of the
Constitution have been amplified, altered, or even nullified by different gen-
erations as a result ofSupreme Court interpretations, laws and amendments,
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liv
60. George Washington to Alexander Hamilton, August 28, 1788, in Papers of Alexan-
der Hamilton, V: 207.
61. Thomas Jefferson to James Madison, November 18, 1788, Papers of Thomas Jeffer-
son, 14: 188. “[T]here is no better book,” he told his young son-in-law, “than the Federal-
ist” (Jefferson to Thomas Mann Randolph, May 30, 1790, Ibid., 16: 449). A lone dissenter,
John Taylor of Caroline, one of the chief architects of the States’ Rights philosophy of gov-
ernment and a close friend of Jefferson, did not share this view. Fearful of a judicial aris-
tocracy and national usurpation of State powers, Taylor contended that the intent of the
Framers was to establish a federal, not a national, government. After critically analyzing
the essays of Hamilton and Madison, he concluded that “although many of the interpre-
tations of the constitution comprised in The Federalist are profound and correct,” it was
abundantly clear that Publius meant to create a consolidated government and had dis-
torted the true meaning of the document through “interpolations of words.” (John Tay-
lor, New Views of the Constitution of the United States, ed. by James McClellan [Washing-
ton, D.C.: Regnery Publishing, 2000]). See also Taylor’s Inquiry into the Principles and
Policy of the Government of the United States (Fredericksburg, Va.: Green and Cady, 1814).
and political custom. When read against the backdrop of these changes, The
Federalist often provides an important standard by which to evaluate them
and determine their merit. In this regard, The Federalist, like a political com-
pass, helps each generation steer the ship of state in the intended direction.
This is what gives The Federalist its enduring strength and continued rele-
vance, and explains why American political leaders, especially members of
the Supreme Court, have traditionally turned to The Federalist for guidance
when interpreting the Constitution and trying to ascertain the intentions of
the Framers.
The high esteem accorded The Federalist is not attributable, however,
solely to its explanation of the Constitution. Many observers give it a high
ranking among the classics of political thought, despite its limited applica-
tion outside the United States, because it identifies and speaks frankly to
the problems and difficulties associated with the establishment of a popular
or republican government. In this vein is George Washington’s estimate of its
worth and timelessness. The Federalist, he speculated, would “merit the no-
tice of posterity because in it are candidly and ably discussed the principles of
freedom and the topics of government which will always be interesting to
mankind so long as they shall be connected in civil society.” 60 Thomas Jeffer-
son called it “the best commentary on the principles of government which
has ever been written.” 61 The great American jurist of the early nineteenth
century, Chancellor James Kent of New York, was even more generous with
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62. Commentaries on American Law (12th ed., 1873), I: 241.
63. Dietze, The Federalist, 11.
his praise: “[T]here is no work on the subject of the Constitution, and on re-
publican and federal government generally,” he wrote, “that deserves to be
more thoroughly studied. . . . I know not of any work on the principles of free
government that is to be compared in instruction and in intrinsic value . . .
not even if we resort to Aristotle, Cicero, Machiavel, Montesquieu, Milton,
Locke, or Burke.” 62 Foreign observers have often shared these sentiments.
Talleyrand, Sir Henry Maine, Alexis de Tocqueville, John Stuart Mill, and
James Bryce all strongly recommended The Federalist as essential reading;
and François Guizot, the French statesman and historian, asserted that, in the
application of the elementary principles of government to practical adminis-
tration, it was the greatest work known to him.63 These are powerful recom-
mendations for a collection of essays hastily drafted by three politicians in the
midst of a political struggle. In this respect The Federalist is a unique docu-
ment, unparalleled in the literature of the Western political tradition.
George W. Carey
James McClellan
Professor of Government
James Bryce Visiting Fellow
Georgetown University
Institute of U.S. Studies
University of London
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Reader’s Guide to The Federalist
pa rt i
Advantages of a More Perfect Union
In Federalist No. 1, Publius sets the tone for the essays that follow by empha-
sizing the urgency and uniqueness of the situation facing the American
people, as well as the magnitude and significance of the choice confronting
them. He pictures this choice in transcendent terms: It is for the American
people to determine “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.” What is more, he writes, a “wrong election” on their part would
“deserve to be considered the general misfortune of mankind.”
Publius warns his readers that those who would seek to persuade them one
way or the other with regard to ratification may be motivated by ambition,
greed, partisanship, or simply mistaken judgment. In particular, he cautions,
the people should be on guard against demagogues who preach against the
proposed Constitution in the name ofthe people. They speak zealously of
the need to protect rights but forget that weak government can be just as
much a threat to liberty as one that is too strong. Indeed, Publius contends,
“a dangerous ambition more often lurks behind the specious mask of zeal
for the rights of the people, than under the forbidding appearances of zeal for
the firmness and efficiency of government. History will teach us, that the
former has been found a much more certain road to the introduction of
despotism, than the latter, and that of those men who have overturned the
liberties of republics, the greatest number have begun their career, by paying
an obsequious court to the people . . . commencing demagogues and ending
tyrants.”
Persuaded that it would be in the best interests of the American people to
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adopt the Constitution, Publius promises that he will be candid and truthful
in presenting his arguments. He discloses the subjects he will cover, begin-
ning first with a discussion of the advantages to be gained by forming a more
perfect union. To this end, in Federalist No. 2, he stresses that the Americans
are already “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 opinions,
and who, by their joint counsels, arms and efforts, fighting side by side
through a long and bloody war, have nobly established their general liberty
and independence.” The need now, he informs his readers, is for a stronger,
more effective central government to preserve and perpetuate the Union. In-
deed, he writes, every national assembly, from the First Continental Congress
down to the Federal Convention, has “invariably joined with the people in
thinking that the prosperity of America depended on its Union.”
Publius argues in essays 3 and 4 that one clear and obvious advantage of
having closer ties among the States is greater national security. He points
out that a more unified country is better able to defend itself against foreign
invasion and intrigue and that diplomatic relations with foreign nations can
best be handled by a national government speaking for the whole people, not
by the several States or “by three or four distinct confederacies.” He goes on
to note (No. 5) how the Act ofUnion, which strengthened Great Britain by
uniting England and Scotland, provides us with “many useful lessons” on the
advantages of unification.
In Federalist No. 6, Publius points to the history of internecine wars and
petty squabbles in ancient Greece and Europe to emphasize the dangers of
confederacy. He condemns “idle theories” which suggest that “commercial
republics” will be immune to these dangers. It is not unrealistic to suppose,
he suggests in Federalist No. 7, that in time the several States might also be
warring among themselves over territorial and commercial differences,
the public debt, or paper money laws which deprive creditors oftheir
property rights. The present circumstances are such, Publius concludes in
Federalist No. 8, that America does not need extensive military fortifications.
But if America were disunited, he admonishes, “Our liberties would be prey
to the means of defending ourselves against the ambition and jealousy of
each other.”
Of particular importance in these early essays are Nos. 9 and 10, wherein
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Publius defends the political principles upon which the proposed Constitu-
tion is based. In No. 9 he maintains that an improved “science of politics”
provides a cure for the “rapid succession of revolutions” which plagued “the
petty republics of Greece and Italy” and “kept” them “perpetually vibrating
between the extremes of tyranny and anarchy.” Among the improvements he
mentions are the doctrines of separation of powers and “legislative balances
and checks,” judicial independence, and “the representation of the people in
the legislature, by deputies of their own election”—the republican principle.
The “enlightened friends of liberty,” he asserts, have woven these princi-
ples into the new Constitution. Moreover, by establishing a “Confederate
Republic” they have combined the advantages of energetic government
with those of republican government over an extensive territory.
In No. 10, the most widely read ofall the essays, Publius continues to
respond to the charges of the Anti-Federalists who, citing Montesquieu, con-
tend that a stable and enduring republic is possible only over a confined ter-
ritory with a small population possessing the same interests. He explains how
the conditions associated with extensiveness will operate to cure the disease
of majority factions—i.e., majorities “united and actuated by some common
impulse ofpassion, or ofinterest, adverse ofthe rights ofother citizens, or
to the permanent and aggregate interests of the community”—which have
caused the demise of earlier small republics. He envisions the election of rep-
resentatives “whose wisdom may best discern the true interest of their coun-
try, and whose patriotism and love of justice, will be least likely to sacrifice it
to partial considerations.” Moreover, he holds that in the extensive republic
under the proposed Constitution there will be a multiplicity and diversity
of interests which will render it unlikely that “a majority of the whole will
have a common motive to invade the fights of other citizens.” Thus, he sees
representation coupled with numerous and diverse interests controlling the
effects of “faction.”
In Federalist No. 11, Publius argues that a stronger Union among the states
would be commercially advantageous. A loose confederation of wholly inde-
pendent States, he suggests, invites commercial weakness, European control
of American markets, and domestic jealousies. A strong Union, he adds,
would also make it possible for the American people to create a navy and a
merchant marine and improve navigation for the protection of American
commercial interests.
Reader’s Guide to The Federalist
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Likewise, he contends in No. 12, the new union will promote “the interests
of revenue.” Simply increasing taxes, he points out, will not fill the empty
treasuries of the State and national governments. “It is evident,” he writes,
“from the state of the country, from the habits of the people, from the ex-
perience we have had on the point itself, that it is impracticable to raise any
very considerable sums by direct taxation.” Noting that taxes on land, wealth,
or consumption are either unpopular with the people or extremely difficult
to administer, he maintains that the main source of revenue for the foresee-
able future will be the collection of duties on imports. One national govern-
ment, he observes in Federalist No. 13, would be far more economical and
efficient in collecting these duties than separate confederacies or independent
states.
Federalist No. 14 offers a summary of the preceding essays, with particular
emphasis on the meaning, importance, and application of the “republican”
principle embodied in the new Constitution. Publius concludes by noting
the continuity between the ideals and spirit of the American Revolution and
the present struggle for a new government. The Framers of the new Consti-
tutions are, he suggests, simply improving and perpetuating the goals of the
American Revolution and the early constitutional systems that arose from it.
pa rt ii
Weaknesses of the Existing Confederation
Publius begins his discussion of the second topic of his outline, “the in-
sufficiency of the present Confederation to preserve . . . [the] Union,” in Fed-
eralist No. 15. In this paper he asserts that the people of the United States
under the Articles of Confederation “may indeed, with propriety, be said to
have reached the last stage of national humiliation. . . . There is scarcely any-
thing that can wound the pride, or degrade the character, of an independent
people, which we do not experience.”
Publius explains why the situation is so desperate. The “great and radical”
defect of the government under the Articles, he maintains, is that it must
legislate for States, not individuals. Such a practice, he charges, allows each of
the States to subvert, undermine, and even ignore the laws of the general gov-
ernment and fails to take account of the “spirit of faction” and the “love of
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lxi
power.” Thus, he believes it imperative that the authority of the national gov-
ernment operate upon individuals, “the only proper objects of government.”
In Federalist No. 16, he continues his attack on the “great and radical vice”
of the Articles—that it legislates for States, not individuals. While noting that
a resort to force has resulted in the “violent death” of such confederacies in
the past, he believes that the confederacy under the Articles will undergo a
more “natural death”—a gradual and peaceful collapse through the general
noncompliance of its members. The solution to the problem is to vest the na-
tional government not only with the authority to operate directly upon indi-
viduals, but also with the capacity to impose sanctions, if necessary, through
the “courts of justices” in order to obtain compliance with its laws. Under
this arrangement, he observes, the States could subvert the execution of na-
tional laws only through an “overt” act in violation of the Constitution, an
unlikely occurrence, in his view, save in the case of a “tyrannical exercise” of
national power.
Understandably, Publius has to turn his attention to answering the
charges ofthe Anti-Federalists that such a powerful national government
will swallow up the States. This he does in Federalist No. 17. Those in charge
of the broad and general responsibilities of the national government, he ar-
gues, will have no need or desire to encroach upon the residual powers of
the states. Thus, there is unlikely to be any clash of basic interests between
the two levels of government. The national government will be dealing with
national issues relating to “commerce, finance, [treaty] negotiation, and war,”
whereas the states will be concerned with matters involving the “administra-
tion of private justice,” the “supervision of agriculture, and of other concerns
of a similar nature.” Moreover, he continues, if the national government
were to encroach upon the States’ residual powers, the States and local gov-
ernments, being closer to the people, would be more than a match for the
national government. Indeed, in his view, State encroachment on the na-
tional government “will always be far more easy” than national encroach-
ment on the State authorities.
Intent upon illustrating the basis for his views on the “great and radical
vice” of the Articles, Publius examines the histories of ancient and modern
confederacies in Federalist Nos. 18, 19, and 20. In the first of these essays, he
surveys the structure, workings, and eventual disintegration of the major
confederacies of ancient Greece. He suggests there are parallels between these
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confederacies and the condition of the States under the Articles of Confeder-
ation, and sees a lesson to be learned from the fact that foreign intervention
and internal dissensions among the member States, rather than oppression
on the part of the central governments, were primarily responsible for their
demise. In Federalist No. 19 he turns to more modern confederacies, devot-
ing most of his attention to the history, development, and status of the Ger-
manic empire. Here again he finds a weakness and disunity fostered by a lack
of central authority over the member states. Continuing with his analysis of
modern confederacies in Federalist No. 20, he examines the United Nether-
lands, racked by dissension, “popular convulsions,” and “invasion by foreign
arms.” He concludes this essay by emphasizing once again an “important
truth” to which the experience of the United Netherlands amply attests: “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.”
In the final two essays of this section (Nos. 21 and 22), Publius concentrates
on other weaknesses of the Articles. In Federalist No. 21 he deals with the want
of“Sanction” or means of enforcement of the laws passed by Congress;
the absence of a “mutual guaranty of the state governments” which would al-
low the national government to intervene in cases of rebellion against the
duly constituted state governments; and the lack of any just or satisfactory
principle or standard for determining the “Quotas” or contributions of
each State to the national treasury. In Federalist No. 22, he remarks on the
want of authority under the Articles to regulate interstate commerce and the
lack in them of any workable means to raise an army.
He then concentrates on both the structural and the procedural defects of
the Articles. Equality of State suffrage in the Congress, coupled with the need
to secure the approval of nine States for the passage of a law has, he asserts,
created a situation that allows for a minority veto, contrary to the republican
principle of majority rule. Moreover, he notes, the absence of the States from
Congress has often resulted in a “single vote” being sufficient to block action.
He regards “the want of a judiciary power” to be “a circumstance which
crowns the defects of the Confederation.” Anticipating arguments he will
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later develop with regard to the separation of powers, he contends that the
powers necessary for an effective national government cannot be vested in a
single legislative body. To do so would either cause its breakdown or, if not
that, an accumulation of power in one body that would amount to tyranny.
Finally, he emphasizes the importance of having a popularly based Consti-
tution, noting that, under the proposed Constitution, the new government,
unlike the Articles, will rest on the consent of the people.
pa rt iii
Powers That Should Be Exercised by a National Government
Federalist essays 23 through 36 are devoted to showing that the powers dele-
gated to the national government by the proposed Constitution are necessary
for a government that is to overcome the difficulties inherent in the Articles
and to preserve the Union. At various places, Publius also endeavors to show
that the powers delegated to the national government, particularly those re-
lating to the national defense and taxation, will pose no dangers to the exis-
tence of the States or the liberties of the people.
In paper No. 23, Publius sets forth a proposition that he repeats through-
out The Federalist to justify the powers delegated to the national govern-
ment—namely, that “the means ought to be proportioned to the end.” If,
that is, the national government is charged with a responsibility, it must
possess the unfettered authority to discharge that responsibility. In the case of
the national defense, he concludes that the powers of the national govern-
ment must be virtually unlimited, because the means of defense depends
upon factors and circumstances that cannot be fully anticipated.
Publius applies this reasoning in Federalist No. 24 in answering the objec-
tions of many Anti-Federalists that the proposed Constitution contains no
provision against a standing army in times of peace. A constitutional prohi-
bition against a standing army in time of peace, he points out, would be most
inappropriate and imprudent, particularly in light of the nation’s western
land interests and the need to protect its naval facilities. But his response
to the Anti-Federalists does not rest upon this ground alone. He notes that
only two States have such provisions against standing armies in their consti-
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tutions and that, moreover, there is no such provision to be found in the Ar-
ticles. Beyond this, he can see no need for any such provision, given that the
proposed Constitution places the authority for raising armies in the hands of
the representatives of the people, thereby providing a check on the military
establishment.
In essay No. 25, Publius completely rejects the proposition that the
state governments ought to assume the functions performed by a national
standing army. This, he writes, would constitute “an inversion ofthe pri-
mary principle ofour 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.” He envisions any such arrangement as subjecting the se-
curity of the whole to the willingness of the parts to fulfill their obligations;
he can imagine how rivalries might even develop among the States that could
eventually lead to the disintegration ofthe Union; and he maintains that
the more powerful States might pose a danger to the existence of the national
government.
In Federalist Nos. 26 through 29, Publius focuses on still other aspects of
the controversy surrounding standing armies in time of peace. In No. 26, for
instance, he points to the reasonableness and appropriateness of the consti-
tutional provision (Article 1, Section 8, Paragraph 12) which limits appropri-
ations for raising and supporting an army to two years—a provision which,
he argues, meets the requirements of national defense while preventing the
potential evils that can arise from a permanent standing army. In a more
philosophical vein, he touches upon a basic theme that recurs throughout
the essays: that the concern for private rights and liberty must always be bal-
anced against the imperative need for an energetic government, one capable
of defending the nation against foreign and domestic enemies. In addition,
he emphasizes that any successful conspiracy or scheme to usurp the liberty
and rights of the people through force of arms would require time to develop
and mature, a virtual impossibility given the accountability of the members
of Congress and the anticipated vigilance of the States.
Publius makes clear (No. 27) that he does not anticipate the national gov-
ernment’s having, as a matter of course, to resort to the use of force to exe-
cute its laws. Indeed, he believes, force will rarely be required once the pro-
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lxv
posed system is put into operation. As soon as the operations of the national
government become part of the ordinary life of its citizens, their attachment
to it will grow. Even State officers will find themselves integrated into the
national system through their obligation to uphold legitimate national laws.
Nevertheless, Publius does acknowledge (No. 28) that there will be circum-
stances which will require the use of national force. He again remarks, how-
ever, that the vigilance and potential resistance of State governments “afford
complete security against invasions of the public liberty by the national au-
thority.” Nor does he see (No. 29) that national control over the State militia
will pose any threat to the liberties of the people or the security of the States.
Among the reasons for this, he maintains, is that the vast majority of the
militia will consist ofordinary citizens whose attachment to the commu-
nity will not allow them to participate in any plot to subvert popular rights
and liberties.
Starting with Federalist No. 30, Publius devotes seven papers to a discus-
sion of the national taxing power and its relationship to the taxing powers of
the States. At the outset, he makes it clear that the national government must
possess unfettered authority to raise revenue in order to fulfill its constitu-
tional responsibilities. Repeating the line of argument used in No. 23, he ar-
gues that “every Power ought to be proportionate to its Object” and that
to restrict the national government to “external” taxation—that is, to “duties
on imported articles”—would be disastrous, because it is impossible to fore-
tell with certainty what the future needs of the national government might
be. In Federalist No. 31, he again emphasizes that the national government
must possess a power to tax commensurate with its responsibilities—a
power “free from every other control but a regard to the public good and the
sense of the people.”
Publius is also anxious to show that the national government’s power to
tax will not lead to the extinction ofthe States. By way ofanswering those who
contend that vesting the national government with an “indefinite power of
taxation” will “deprive . . . [the States] of the means of providing for their own
necessities,” he answers (No. 31) by pointing out the impossibility of dealing
rationally with the infinite “conjectures about usurpation” which spring from
the unwarranted fears of the Anti-Federalists. In Federalist No. 32, he takes
pains to point out that the States “clearly retain all the rights of sovereignty”
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that were not “exclusively delegated” to the national government, prohibited
to them, or whose exercise would be “totally contradictory and repugnant”
to the exercise of delegated national powers. Thus, he shows that, save for du-
ties on imports, the States possess a concurrent and discretionary power to
tax the same sources as the national government. He demonstrates (No. 33)
that the “necessary and proper” clause cannot be used to deprive the States of
their powers to tax. Any law “abrogating or preventing the collection of a tax
laid by the authority of a State (unless on imports and exports) would not be
the supreme law of the land, but an usurpation of a power not granted by the
Constitution.” Finally, in essay No. 34, he rejects the idea that there is need
for a constitutional division of the sources of revenue between the State and
national governments to ensure sufficient revenues for the States. Such a di-
vision, he warns, might prevent the national government from fulfilling its
critical responsibilities. Moreover, he cannot see any division of the sources
of revenue that would not leave the States with either “too much or too little”
relative to their needs.
In the final two essays (Nos. 35 and 36) of this section, Publius takes up and
answers Anti-Federalist objections that the House ofRepresentatives will
not be able to produce an equitable system of taxation because it will not be
large enough to reflect the diversity of interests in the nation. While he holds
(No. 35) that the representation of all classes of people is both “unnecessary”
and “altogether visionary,” he firmly believes that the classes that will domi-
nate—“landholders, merchants, and men of the learned professions”—will
have a sufficient understanding and sympathy with the various interests of
society to produce an equitable system for revenues. In this respect, he envi-
sions those from the “learned professions” adjudicating whatever differences
might arise between the “different branches of industry” in a fashion consis-
tent with the general welfare. In addition, he rejects (No. 36) the charge that
the Congress will not have sufficient knowledge of local circumstances to
formulate effective and equitable taxation policies. He notes that the infor-
mation needed for this purpose can easily be obtained with respect to the
imposition of indirect taxes, such as import duties and excise taxes. As for di-
rect taxes, such as those on real property, he maintains that the system used
by the individual States can readily be “adopted and employed by the federal
government.”
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pa rt iv
Why the Proposed Constitution Conforms with the
Principles ofRepublicanism and Good Government
A. The General Form of Government
Federalist Nos. 37 through 40 discuss concerns of a general nature. No. 37, for
instance, is perhaps the most philosophical of all the essays. Here Publius
(Madison) provides an overview of the complexity and enormity of the task
confronting the Founding Fathers at the Philadelphia Convention. He com-
ments on the “novelty ofthe undertaking”; the difficulties ofmarking out
the divisions between the departments of government, as well as those sur-
rounding the division of authority between the State and national govern-
ments; and the delicate task ofproviding for the proper balance between
energy and stability necessary for an effective and stable government without
infringing upon liberty or violating the principles of republicanism.
After stressing the enormous obstacles that must be faced in establishing
a new government by pointing to examples from ancient history (No. 38),
Publius proceeds to castigate the Anti-Federalists for compounding these
difficulties. He notes the lack of consensus among them about what is wrong
with the proposed system and their clamor for amendments before the pro-
posed system has even had a chance to operate. He faults them for quibbling
over supposed defects in the proposed Constitution while ignoring the highly
dangerous and unbearable political situation under the Articles.
In essay No. 39, Publius takes up two highly important concerns. First, he
sets forth the “true principles” of republicanism, which call for direct or in-
direct control over government by “the great body ofthe society, not from
an inconsiderable proportion, or favoured class of it.” Second, he undertakes
to answer Anti-Federalist critics who charge that the proposed Constitu-
tion calls for a consolidated, national, or unitary government that does not
conform to the principles of federalism. He examines the proposed system
from five different vantage points and concludes that it is neither wholly na-
tional (unitary or consolidated) nor federal (confederate) but a “composition
ofboth.”
Finally, in Federalist No. 40, Publius takes up and attempts to answer the
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charge— one that has endured over the decades—that the members of the
Constitutional Convention exceeded their authority by drafting an entirely
new constitution instead ofsimply revising the Articles, as they had been
instructed to do. He answers by arguing that the delegates appropriately ac-
corded priority to that part of their mandate which instructed them to pro-
vide for a government capable of preserving the Union and meeting its needs.
Such a government, he maintains, simply could not be fashioned through
any conceivable revision of the Articles.
B. The Powers of Government
Publius indicates at the outset of his discussion ofthe powers ofthe pro-
posed national government that two questions are uppermost in his mind:
first, whether any of the powers delegated to the national government are
“unnecessary or improper,” and second, whether these powers will pose dan-
gers to the authority of the States. To answer the first question he surveys
(Nos. 41 through 44) the powers of the national government under six cate-
gories: defense; commerce with foreign nations; relations between the States;
“miscellaneous objects of general utility”; restraints upon the States; and
“provisions for giving due efficacy” to the foregoing powers. He answers the
second of these questions, regarding foreign commerce, in the last two essays
(Nos. 45 and 46).
In his discussion ofthe common defense (No. 41), Publius again warns
of the danger and futility of trying to limit the powers of the national gov-
ernment. “The means of security,” he writes, “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.” At the same time, he rejects the notion that the “gen-
eral welfare” clause vests the national government with undefined powers. In
No. 42 he justifies the powers delegated to the national government on vari-
ous grounds. He notes, for instance, that few would question the propriety of
the national government’s conducting foreign relations, the need for some
superintending authority to regulate commerce among the States, or the con-
venience of general laws regarding naturalization. Likewise, in No. 43 he
points to the need or at least the desirability of giving “miscellaneous pow-
ers” to the national government, which include provision for the admission
of new States, national control over the seat of government, and the guaran-
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tee of a republican form of government for each State.
Relatively little controversy surrounds the powers Publius surveys in Fed-
eralist Nos. 41– 43. However, the Anti-Federalists were greatly concerned
about the “necessary and proper” clause (Article 1, Section 8, Paragraph 18)
and the extent to which the national government might use this provision to
enlarge its powers at the expense ofthe States. Publius turns his attention
to this clause in No. 44, where he argues that even if the Constitution had
contained no such provision, the national government would, “by unavoid-
able implication,” still possess the power to pass laws “necessary and proper”
to execute its expressly delegated powers. Once again, Publius emphasizes
that the means must be apportioned to the ends: “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.” He points out, however,
that if the national government were to overextend its authority and do that
which is unnecessary or improper, the people can “annul the acts of the
usurpers” through the “election of more faithful representatives.”
Publius’s discussion of the “necessary and proper” clause provides the
backdrop for his discussion (essays 45 and 46) of the second question—that
is, whether the powers ofthe national government threaten the States. In
No. 45, he advances the opinion that in contests between the States and
national government over the extent oftheir respective powers, the State
governments will enjoy an inherent advantage. In both Nos. 45 and 46, he
sets forth in detail the reasons why he holds this position. He does concede
(No. 46) that “manifest and irresistible proofs of better administration” on
the part of the national government can operate to overcome these inherent
State advantages. However, he is adamant in maintaining that any infringe-
ment on popular liberties through unwarranted intrusions of the national
government would be met by stern opposition on the part ofthe States—
an opposition that “the federal government would hardly be willing to
encounter.”
C. The Separation of Powers
The first sentence of Federalist No. 51 provides a convenient point of depar-
ture for understanding those essays (Nos. 47 through 51) devoted to the prin-
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ciple ofthe separation ofpowers. In this sentence Publius asks: “To what
expedient then shall we finally resort, for maintaining in practice the neces-
sary partition ofpower among the several departments, as laid down in the
Constitution?” Publius strongly believes it is necessary to maintain the sepa-
ration of powers provided for in Articles I, II, and III of the proposed Con-
stitution. In No. 47, he indicates in no uncertain terms why it is necessary to
maintain this partition. Echoing the accepted wisdom of that period, he
writes that “The accumulation of all powers, legislative, executive, and judi-
ciary, in the same hands, whether of one, a few, or many, and whether heredi-
tary, self-appointed, or elective, may justly be pronounced the very definition
of tyranny.” By tyranny, as he makes clear by quoting from Montesquieu, he
means arbitrary, capricious, and oppressive rule by those possessing any two
of these powers. Thus, he believes that for the proposed Constitution to suc-
ceed it is imperative that no one branch be able to exercise the whole power
of another.
In the remaining papers in this group, Publius sets out to canvass the
means by which the departments can be kept separate in order to prevent
tyranny. In the first of these (No. 48), he inquires whether “parchment bar-
riers” or written provisions in the Constitution to the effect that each de-
partment should stay within its own sphere would be sufficient to maintain
the separation. In answering this question, he emphasizes that the legislature
is most to be feared because it “is every where extending the sphere of its
activity and drawing all power into its impetuous vortex.” For this reason,
he urges the people “to indulge all their jealousy, and exhaust all the pre-
cautions” against this branch of government. Noting that the legislature pos-
sesses so many means and pretexts for aggrandizing the powers of the other
branches, and mindful of difficulties experienced by some State govern-
ments, he concludes that a delineation of powers of the branches in the con-
stitution will not, by itself, serve to prevent a “tyrannical concentration” of
powers.
He next turns his attention (No. 49) to a critical examination ofJefferson’s
proposal for keeping the branches within their proper spheres. The Jefferson
plan called for appeals to the people whenever two-thirds of the member-
ship of two branches of government so requested. Upon such an appeal a
popularly elected convention would meet to resolve the conflict. Aside from
certain technical difficulties that he notes, Publius finds the plan seriously
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deficient from a theoretical point of view. He believes that such occasional
appeals to the people over constitutional questions would, particularly if
frequent, serve to undermine popular “veneration” of the government in that
they would suggest serious defects in the system. The favorable opinion of the
people upon which the authority of government ultimately rests would then,
he maintains, suffer a serious, if not complete, erosion. Moreover, passions
would be aroused over these constitutional matters, thereby disturbing the
“public tranquillity” and the very stability ofthe constitutional order. But
the “greatest objection,” in his mind, is that the legislature is most likely to
encroach on the other branches and that its members, because of their
influence and popularity with the people, would most likely be the members
of any convention elected to redress the alleged violations. Consequently, the
legislators would be the judge of their own cause. But even if this were not the
case, Publius argues that “passions,” not “reason,” would most likely prevail
in these conventions.
Publius then considers (No. 50) whether periodic appeals to the people at
fixed intervals might serve the purpose of maintaining the necessary separa-
tion of powers. Again he sees fatal flaws in any such scheme. If the appeals
occur too close to the time of the alleged infraction, they will be attended with
all the “circumstances” which “vitiate and pervert the result of” occasional
appeals. And if the interval between the appeal and the alleged transgression
is a long one, he sees good reasons why the appeal is not likely to serve its
purpose: the prospect ofdistant censure will not restrain those bent upon
aggrandizement; the transgressors might have already accomplished their
ends, thereby rendering the remedy superfluous; or the transgression may, in
the interval, have taken “deep root” so that it cannot be remedied. He notes
that the experience of Pennsylvania with its Council of Censors bears out his
observations concerning the ineffectiveness of this barrier.
Having rejected paper barricades, and occasional and periodic appeals,
Publius proceeds in Federalist No. 51 to set forth his solution to the problem
of maintaining the necessary constitutional separation. “The only answer,”
he contends, consists in “contriving the interior structure of government” so
that the departments “by their mutual relations” will keep “each other in
their proper places.” This, in turn, requires “giving to those who administer
each department, the necessary constitutional means, and personal motives,
to resist the encroachment of others.” After noting that the “compound” na-
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ture of the republic with “two distinct governments” controlling each other
will provide a “double security . . . to the rights of the people,” he concludes
this essay by reformulating the arguments used in his Federalist No. 10
to show how the extended federal republic, with its multiple and diverse in-
terests, will render the formation of majority factions “improbable, if not
impracticable.” He reasserts the proposition “that the larger the society,
provided it lie within a practicable sphere, the more duly capable it will be of
self-government.”
D. The House of Representatives
With Federalist No. 52, Publius begins his examination of the specific insti-
tutions of the proposed Constitution: the House of Representatives, the Sen-
ate, the executive, and the judiciary. This survey runs through No. 83, or all
but the last two essays of the volume.
Essay No. 52 is also the first of ten devoted to describing and explaining the
constitutional provisions and features of the House of Representatives. In
this particular paper, Publius remarks on the propriety of the constitutional
provisions relating to the qualifications for voting for members of the House
and the qualifications for membership in this chamber. He then takes up the
more controversial matter of whether the two-year term for members of the
House will endanger the liberties of the people. Surveying the experiences of
Great Britain and Ireland but particularly those of the States, he concludes
that biennial elections pose “no danger” to liberty.
Publius resumes his discussion of the appropriateness of a two-year term
(No. 53) by taking up and debunking the notion “that where annual elections
end, tyranny begins.” In this endeavor, he explicitly sets forth for the first
time the American doctrine of constitutionalism, which holds that a consti-
tution, resting on the consent of the people, is “unalterable by the govern-
ment” it creates. The major portion of the essay deals with the necessity and
utility of two-year terms. On this score, he emphasizes the need for repre-
sentatives to have sufficient time to acquire “the knowledge requisite for fed-
eral legislation.”
Publius next (No. 54) confronts the matter of apportioning representa-
tives among the States according to population and, specifically, to the mat-
ter of counting slaves as three-fifths of a person. Speaking through the me-
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dium of “one of our Southern brethren,” he offers up the reasons for the
three-fifths “compromise” that emerged from the Philadelphia Convention.
Among those he cites are that the laws regard slaves as both property and per-
sons; that the Southern States would regard it as inequitable to count slaves
for purposes of taxation but not for representation; and that there should be
some allowance for the comparative wealth of the States in apportioning
seats. Though conceding that this reasoning is “a little strained in some
points,” he finds that, taken as a whole, it “fully reconciles” him to the com-
promise. He concludes this essay by noting that the “common measure” for
purposes of representation and taxation will render it unlikely that the States
will attempt to distort their actual populations. That is, the disposition to re-
duce the number of inhabitants for purposes of taxation will be counteracted
by the potential loss of representatives.
With Federalist No. 55, Publius begins a series of four papers that deal
with four major criticisms that have been leveled against the House of Rep-
resentatives regarding its composition and capacity to represent the people.
This paper is concerned with the question of size and whether the House—
initially to consist ofonly sixty-five members—is a safe “depository ofthe
public interests.” Noting that there is no exact formula for determining the
proper size ofa legislative assembly, he maintains that the number must
be sufficient for purposes of “consultation and discussion” and to prevent
cabals. On the other hand, he emphasizes that it must also be limited “in
order to avoid the confusion and intemperance of a multitude.” In this con-
nection, he writes, “Had every Athenian citizen been a Socrates, every Athen-
ian assembly would still have been a mob.” As for the question of whether the
size ofthe House renders it a safe depository, he observes that the size of
the body will increase with anticipated increases in population. Moreover, he
cannot conceive of this body, subject to election every two years, as betraying
the trust of the people. The essay concludes with one of his few statements
concerning the relationship between virtue and republican government. Re-
publican government, he remarks, “presupposes” qualities ofhuman nature
“which justify a certain portion of esteem and confidence . . . in a higher de-
gree than any other form.”
In answering the second charge (No. 56), that the House will be “too small
to possess a due knowledge of the interests of its constituents,” Publius has
recourse to an argument very similar to that advanced in No. 10, namely that
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information relevant for national purposes, which are general in nature, can
be conveyed by a relatively few individuals. The major task of representa-
tives, as he views it, will be to assimilate the information they acquire from
other representatives concerning conditions in other States and locales. Over
time, however, he sees the interests within the States as becoming more nu-
merous and diverse, while the differences between them in terms of interests
will diminish.
To the charge that those elected to the House will have “least sympathy
with the mass of the people” and will “be most likely to aim at an ambitious
sacrifice of the many, to the aggrandizement of the few,” Publius recurs in
paper No. 57 to the republican foundations of the system as set forth earlier
in essay No. 39. He points out that the electors of the representatives are “to
be the same” as those who elect members to the popular branch of the State
governments and that the objects of popular choice are not constitutionally
limited by requirements of wealth, profession, or religious affiliation. Beyond
this, he sees various circumstances—chief among them frequent elections,
along with the fact that representatives cannot pass laws that will not apply
to themselves, their family, and friends, as well as their constituents—as
forging a genuine bond of affection between the representatives and their
constituents.
To the fourth and final charge, that “the number of members” in the
House ofRepresentatives “will not be augmented from time to time, as the
progress of population may demand,” he observes (No. 58) that no serious
problems on this score have been encountered at the State level. Moreover,
he does not foresee how a coalition of the small States would be able to pre-
vent periodic augmentations in the size of the House. Among the reasons he
cites is that the House, with the people on its side, and vested with the power
of the purse, will be more than a match for the Senate or president should
they attempt to thwart any increase. However, Publius takes pains to repeat
his earlier concerns about an excessively large representative assembly. Any
number beyond that necessary for providing “local information,” of ensur-
ing “diffusive sympathy with the whole society,” or for “purposes of safety,”
he argues, might well lessen the republican and deliberative character of the
assembly.
The final three essays devoted to the House of Representatives deal with
the necessity and desirability of national control over elections for national
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offices as set forth in Article 1, Section 4 of the Constitution. These essays
constitute a break between his survey of the House and his examination of
the Senate.
Publius begins (No. 59) by defending national regulation of elections to
national office as vital for the preservation of the national government. He
maintains that if this function were to be exercised by the States, it would
leave the national government at their mercy. While recognizing that the State
legislatures can refuse to elect senators, he does not regard this a warrant for
more extensive State control. However, he does believe that State control
over House elections could lead to a crisis. In responding to Anti-Federalists
who maintained that the national government might use its regulatory power
to manipulate elections in order “to promote the election of some favourite
class of men,” Publius answers (No. 60) that neither the people nor the States
would ever stand for any such discrimination. Moreover, he regards any plan
to favor “the ‘wealthy and well born’” as impracticable, because these classes
are randomly distributed throughout the nation. Finally, in Federalist No. 61,
he responds to the criticism that the Constitution is deficient because it con-
tains no provision specifying the time and place of national elections. He an-
swers by pointing out that neither the New York nor any of the other State
constitutions contain such specifications, and that there have been no ill ef-
fects. He goes on to point out some of the positive advantages that will flow
from the national government’s fixing a uniform time of election. Most im-
portantly, he argues, it will ensure that the entire membership of the House
will simultaneously be subject to control by the people.
E. The Senate
The Anti-Federalists viewed the Senate with mixed emotions. The vast ma-
jority favored a second chamber, and most were pleased that the States were
accorded equality of representation. Yet many voiced strong criticisms of its
powers, composition, and relationship to the executive branch. Beginning
with essay No. 62, Publius devotes five essays to answering the most common
criticisms of the Senate and to pointing out what role he anticipates it will
play in providing for stable government free from the ravages of faction.
In this first paper, Publius deals with the qualifications for election to this
chamber, the mode of election, and equality of State representation. He also
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begins his discussion concerning its size and term of office by inquiring “into
the purposes which are to be answered by a senate.” Notable in this paper is
his lukewarm defense of equal State representation in the Senate and his de-
tailed analysis of the contemplated role of the Senate. Equality of representa-
tion, he maintains, is the result of a necessary compromise that “may prove
more convenient in practice, than it appears to many in contemplation.”
However, he views the Senate as indispensable in checking the potential ex-
cesses of the House, as well as in ensuring sound, well-conceived legislation.
He is most emphatic in stressing the role of the Senate in curing the poison-
ous effects, both internal and external, of an “unstable government” that pro-
duces “mutable” policies.
In Federalist No. 63, Publius continues his discussion of the role of the
Senate in promoting stability. It will provide, he maintains, “a sense of na-
tional character” necessary for the respect of foreign nations and the orderly
conduct of international relations. He observes that the Senate, because of its
stability and continuity, will also be more inclined than the House to take the
successive steps sometimes necessary for the implementation of long-range
goals and policies. But the bulk of the essay is devoted to a discussion of the
Senate as an institution that can prevent oppressive and unjust majorities
from ruling. The Senate, he argues, can serve to check such factions “until
reason, justice, and truth can regain their authority over the public mind.”
Publius next examines (No. 64) the role of the Senate in the treaty-making
process. He emphasizes its stability, as well as the intelligence, knowledge,
and character of its members, that render the body suitable for this purpose.
However, the essay is most notable for delineating a significant and distinct
role for the president in the area of treaty negotiations. Noting that “secrecy”
and “despatch” are often necessary, he praises the proposed Constitution for
allowing the president sufficient latitude to take advantage of changing cir-
cumstances and to maintain secrecy in the negotiation process. In answering
major criticisms of this process, he stresses that treaties, viewed as “bargains”
between nations, have a different character from ordinary legislation, because
the consent of the contracting parties to the treaty is necessary “to alter or
cancel them.” He cannot foresee the process being abused, largely because
the president and members of the Senate, as well as “their families and es-
tates,” will be bound by the terms of treaties to the same extent as ordinary
citizens.
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The final two essays (of the next twenty by Hamilton) dealing with the
Senate are concerned with its role in the impeachment process. The main
issue discussed in No. 65 is the propriety of vesting the Senate with the power
to try those impeached by the House of Representatives. Though Publius can
see merit in having a “court for the trial of impeachments . . . distinct from”
the regular departments ofgovernment, he notes practical difficulties and
the “heavy expense” that would attend any such arrangement. In Federalist
No. 66, he takes up a detailed defense of the role of the Senate in the im-
peachment process. The constitutional provisions, he argues, do not violate
the separation of powers principles. Nor does he believe that the Senate’s role
in the appointment or treaty-making processes, which it shares with the
president, will inhibit it from removing culpable individuals from office.
F. The Presidency
With Federalist No. 67, Publius begins an eleven-essay survey of various as-
pects of the presidency. In the opening essay, he strives to dispel the charge
leveled by many Anti-Federalists that under the proposed Constitution the
president will have an authority and status akin to that ofthe most power-
ful monarchs. Such a depiction he regards as utterly without foundation. To
illustrate the absurdity of these charges, he refutes the claim that the presi-
dent may fill “casual vacancies in the senate.”
After setting forth (in No. 68) the virtues of the electoral college for elect-
ing a president—a process that “affords a moral certainty, the office of presi-
dent will seldom fall to the lot of any man who is not in an eminent degree
endowed with the requisite qualifications”—Publius explores (No. 69) the
“real character of the proposed executive” by comparing his status and pow-
ers with those of the king of Great Britain and the governor of New York. To
counter the charge that the president is little more than an “elective king,”
he discusses his term of office, his liability to impeachment and removal, his
participation in the legislative process, his powers as commander-in-chief,
and his powers of appointment and treaty making. He concludes that it is
questionable whether the president’s authority even exceeds that ofthe
governor ofNew York, but that, in any event, “there is no pretence for the
parallel which has been attempted between him [the president] and the king
of Great Britain.”
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Nevertheless, Publius does emphasize the need for energy in the executive
to secure the blessings of good government and liberty. In Federalist No. 70,
he identifies four ingredients of an energetic executive: “unity; duration; an
adequate provision for its support; [and] competent powers.” In the remain-
ing essays on the presidency he deals with these ingredients, beginning first
with the need for “unity.” On this score he maintains that both reason and
experience clearly speak against having plural executives or an executive
council. He argues strenuously and at length against the idea of a council
whose concurrence would be required for the exercise of executive functions.
Such an arrangement, he observes, would make it difficult, if not impossible,
for citizens to fix responsibility for fraud, misconduct, and incompetence.
Moreover, he concludes, this lack of accountability would render any such
council a greater threat to liberty than would a single executive.
In discussing “duration” (No. 71), the second ingredient of an energetic
executive, Publius defends the four-year term of office as contributing to the
firmness of the executive, a firmness that would allow the executive to block
oppressive and unjust measures in order to give the people the “time and op-
portunity for more cool and sedate reflection.” What is more, he believes
such a term is essential if the executive is to act independently of Congress,
particularly the popularly elected branch whose members “sometimes . . .
fancy, that they are the people themselves.” Given these views, it is hardly
surprising that Publius vigorously defends the view (No. 72) that the execu-
tive ought to enjoy indefinite reeligibility. He enumerates in some detail the
potential “ill effects” that limitations on reeligibility would produce. He con-
cludes by arguing that the presumed advantages ofthe principle ofexclu-
sion (“greater independence” and “greater security to the people”) are highly
dubious.
The third ingredient of an energetic executive authority, “adequate provi-
sion for its support,” is discussed in essay No. 73 by taking note of the con-
stitutional provision prohibiting an increase or decrease of presidential pay
during the executive’s term of office. However, his major focus in this essay,
and in those that follow, is on the fourth ingredient, “competent powers.”
This, in turn, leads to an extensive discussion of the president’s veto power.
He notes the imperative need for such a power to prevent legislative en-
croachment on the executive branch in order to preserve the separation of
powers. He also sees the veto power as a means of curing the “inconstancy
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and mutability in the laws,” which he calls the “greatest blemish” on the
character ofthe state governments. He looks upon the qualified veto as an
encouragement for an otherwise reluctant chief executive to exercise this
prerogative in questionable cases, because it lacks the finality ofan abso-
lute veto.
Continuing with his discussion of“competent powers” in Federalist
No. 74, Publius turns to the president’s power as commander-in-chief, as
well as his authority to require the “opinions, in writing” ofhis principal
subordinates. The major portion of the essay, however, is devoted to his
power “ ‘to grant reprieves and pardons.’” On this matter, he weighs the pros
and cons ofthe argument that at least the concurrence ofone chamber of
the legislature should be required for pardons in the case of treason. On bal-
ance, he concludes, the need for flexibility and dispatch justifies vesting this
authority solely with the executive. In No. 75 Publius examines the treaty-
making power ofthe president by way ofshowing the appropriateness of
the constitutional provisions relating to this authority. To the charge that the
participation of the Senate in this process involves an undesirable mixture of
legislative and executive powers he responds that the treaty-making power
does not fit neatly into either the executive or the legislative branches, that
it partakes ofboth. Moreover, he remarks, “the history of human conduct”
indicates that the executive should not be able to exercise this whole power
unilaterally. On the other hand, he observes, the Senate is not as suited as is
the president for conducting treaty negotiations.
In the last two essays devoted to the presidency, Publius takes up the presi-
dent’s power of appointment and the role of the Senate in this process. Nom-
ination by the president and confirmation by the Senate, he contends in
No. 76, have all the advantages of appointment by a single person while
avoiding the factional strife that inevitably arises when assemblies are vested
with the authority to appoint. Nomination by the president, he believes, will
be tantamount to appointment. Though he recognizes that the Senate may
reject the nomination—something he believes it would do infrequently in
the absence ofcompelling reasons—the subsequent nominee would still
be the preference of the president, not the Senate. In this vein he comments
on the benefits that would result from Senate confirmation, not the least of
which is that the mere possibility ofrejection would serve as “a strong mo-
tive to care in proposing.” Finally, he sees little prospect that the president
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could use his powers ofappointment “to corrupt or seduce a majority” of
the senators.
Publius opens Federalist No. 77 by asserting that the Senate would have
to consent to the removal of executive officers (a position rejected by the first
Congress which, in effect, held that removal was an inherent executive
power). The remainder of this paper, however, is devoted to defending the
mode of appointment set forth in the proposed Constitution. In this regard,
he dismisses as without foundation the contention that the Senate might
be able to exercise an undue “influence [on] the executive.” He rejects any
participation by the House of Representatives in the appointment process,
because the “fluctuating” character ofits large membership would destroy
“the advantages of stability” and cause “infinite delays and embarrassments.”
Toward the end of the essay, returning to a concern he discussed earlier in
No. 70, he contends that the “structure and powers of the executive depart-
ment” do “combine the requisites ofsafety, in the republican sense.” He
cites, in this connection, the power of impeachment and removal and the
concurrence of the Senate over those concerns where “abuse of the executive
authority was materially to be feared.”
G. The Judiciary
In Federalist Nos. 78 through 83, Publius examines the third branch of
government, the judiciary. The most significant ofthese essays is the first,
in which he sets forth the case for judicial review, or what he describes as
the power of the courts “to declare all acts [of the legislature] contrary to the
manifest tenor of the Constitution void.”
In essay No. 78 Publius defends the constitutional provision for tenure
during good behavior for justices. In the course of this defense, he notes the
feebleness of the judiciary relative to the other branches of government: it has
no control over either the “sword or the purse”; it “can take no active reso-
lution whatever”; it “will always be the least dangerous to the political rights
of the Constitution”; and it possesses “neither Force nor Will, but merely
judgment.” The national courts can pose a threat to the liberties of the peo-
ple, he argues, only if they are united with either of the other two branches.
Thus, he points out, there is a need for “Permanency in Office” to se-
cure its separation.
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Having stressed the need to maintain a separation between the judiciary
and the other branches to avoid tyranny, Publius goes on to contend that an
independent judiciary is “essential in a limited constitution”—a constitution
which, as he puts it, “contains . . . specified exceptions to legislative author-
ity.” At this juncture, he sets forth his famous argument for judicial review.
The Constitution, he insists, must be viewed as fundamental law, the em-
bodiment of the constituent will of the people. Any legislative act contrary to
a provision of this fundamental law, in his view, must be regarded as “void.”
“To deny” this conclusion, he contends, “would be to affirm, that the deputy
is greater than his principal: that the servant is above his master; that the rep-
resentatives of the people are superior to the people themselves.” Because
“The interpretation of the laws is the proper and peculiar province of the
courts,” Publius holds that it falls to them to determine when there exists an
“irreconcilable difference” between the Constitution and a law passed by
Congress. It is “the duty of the judicial tribunals,” he writes, to void statutes
that contravene the “manifest tenor” of the Constitution. This does not
mean, he adds, that the judiciary is superior to the legislature, but only that
the will of the people expressed in the Constitution is superior to both.
In this essay Publius canvasses other reasons to justify life tenure. The
independence ofthe courts is essential ifthey are to uphold the Constitu-
tion against any “momentary inclination” that may lead majorities to back
proposals “incompatible with the provisions in the existing Constitution.”
Changes or alterations in the Constitution, he insists, must be made through
“some solemn and authoritative act”—i.e., through the amendment process
outlined in Article V. Still another reason for the independence of the judici-
ary relates to the “qualifications” for fit judges. Not only must they be steeped
in the law with a knowledge of precedents, they must also be individuals of
high moral character. Such “fit characters,” he remarks, are not to be found
in abundance. Life tenure, he reasons, might serve as an inducement for such
characters to leave “a lucrative line of practice” in the private sector and to
“accept a seat on the bench.”
Publius defends (No. 79) other constitutional provisions that provide for
judicial independence. The constitutional provision that the compensation
of judges “ ‘shall not be diminished during the continuance in office’” he re-
gards as “the most eligible provision that could have been devised.” More
importantly, he finds that the removal of judges through the impeachment
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Reader’s Guide to The Federalist
lxxxii
process is the only method “consistent with the independence of the judicial
character.”
In Federalist No. 80, Publius inquires into the “proper objects” ofthe
“federal judicature” and whether Article III of the proposed Constitution
conforms to them. In this connection he comments on the role of the federal
courts in “giving efficacy to constitutional provisions” by overturning State
laws in “manifest contravention” of the Constitution. Moreover, he also sees
the need for a judicial power “coextensive” with the legislative to provide for
“uniformity in the interpretation of the national laws.” He points as well to
the need of the federal judiciary to act as an impartial arbiter in “determin-
ing causes between two states, between one state and the citizens of another,
and between the citizens of different states.”
Having defended an independent federal judiciary with the power of judi-
cial review over both State and national laws, in Federalist No. 81 Publius pro-
ceeds to answer those Anti-Federalists who argue that the federal courts—
and the Supreme Court in particular—will become the dominant branch of
government, because they will be free to go beyond the letter of the Consti-
tution to interpret its “spirit.” Publius responds by noting that the Constitu-
tion does not “directly” authorize the “national courts to construe the laws
according to the spirit of the Constitution” and that, moreover, the latitude
given to the national courts by the Constitution is no greater than that en-
joyed by the State courts. Publius holds that the “danger of judiciary en-
croachments” on the legislature is a “phantom,” and that the legislative
power to remove judges through the impeachment process is a sufficient de-
terrent against judicial usurpation.
After stressing the need for “inferior” federal courts—that is, courts
below the Supreme Court—by pointing out that the existing State courts
could not very well provide for uniform and impartial interpretations of the
national laws (No. 81), Publius takes up the matter of the relationship be-
tween the federal and State courts in No. 82. He assures his readers that the
adoption of the Constitution will not diminish the jurisdiction of the State
courts, save where there is express provision for exclusive federal jurisdiction.
He maintains that the degree to which the State courts will share jurisdiction
with the federal courts over those matters that are “peculiar to” or “grow out
of” the Constitution is a matter for Congress to determine. He again notes
that the need for uniformity requires that in cases of concurrent jurisdiction
there must be appeal to the national courts.
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In the longest of all the essays, No. 83, Publius engages in a detailed re-
sponse to Anti-Federalists who argue that the proposed Constitution abol-
ishes trial by jury in civil cases. Publius makes a number of points, three of
which are central. First, he rejects the notion that the silence of the proposed
Constitution on this score can be interpreted as abolishing trial by jury in
such cases. Second, he does not personally believe that trial by jury in all civil
cases, unlike trial by jury in criminal cases, is an indispensable “safeguard to
liberty.” And, finally, because the practices of the States with regard to civil
cases varied, the members of the Convention wisely left this matter to the dis-
cretion of Congress.
H. Concluding Observations
By way of picking up loose ends, Publius takes up (No. 84) certain “miscella-
neous” matters which, he contends, “did not fall naturally under any particu-
lar head, or were forgotten in their proper places.” The most important of
these he deems to be the objection that the proposed Constitution “contains
no bill of rights.”
Publius approaches this objection from several perspectives. He begins by
noting that the proposed Constitution already protects a number of impor-
tant rights, including the guarantee of the writ of habeas corpus and the pro-
hibition against ex post facto laws; and that, unlike the rights proclaimed in
the New York Constitution, the rights in the proposed federal Constitution
are not alterable by simple legislation. He then observes that bills of rights,
“according to their primitive signification,” are grants of privilege from the
sovereign to the people and, as such, have no place in republican govern-
ments founded on the consent of the people. “We, the People” of the Pre-
amble, he declares, “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.” He goes on to maintain “that bills of rights, in the sense and to the
extent they are contended for, are not only unnecessary . . . but would even
be dangerous. . . . They would,” he argues, “contain various exceptions to
powers not granted; and on this very account, would afford a colourable pre-
text to claim more than were granted.” He remarks as well that the security
for liberties rests ultimately “on public opinion, and on the general spirit of
the people and of the government.”
The last essay, Federalist No. 85, contains Publius’s final plea for rati-
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Reader’s Guide to The Federalist
lxxxiv
fication of the Constitution. Holding that “I never expect to see a perfect
work from imperfect man,” he maintains that the proposed Constitution is
“the best which our political situation, habits, and opinions will admit.” To
counter Anti-Federalists urging the addition of amendments as a precondi-
tion for ratification, Publius stresses the dangers of seeking to perfect the
Constitution through amendments “prior to” its operation. He also observes
that such a precondition would require starting the ratification process all
over again, producing a delay that might well result in “anarchy, civil war, a
perpetual alienation of the states from one another, and perhaps the military
despotism of a victorious demagogue.” He notes, by way of answering those
concerned about the national government resisting changes that would di-
minish its powers, that the States can initiate amendments once the system is
set in motion; that they will not have to rely upon Congress, an arm ofthe
national government, for this purpose. Recurring to a theme of Federalist
No. 1, he strongly suggests that the nation is at the crossroads, and that the
opportunity for a republican union might never again present itself.
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Preface to the Gideon Edition (1818)
The present edition of the Federalist contains all the numbers of that work,
as revised by their authors; and it is the only one to which the remark will
apply. Former editions, indeed, it is understood, had the advantage of a re-
visal from Mr. Hamilton and Mr. Jay, but the numbers written by Mr. Madi-
son still remained in the state in which they originally issued from the press,
and contained many inaccuracies. The publisher of this volume has been so
fortunate as to procure from Mr. Madison the copy of the work which that
gentleman had preserved for himself, with corrections of the papers, of
which he is the author, in his own hand. The publication of the Federalist,
therefore, may be considered, in this instance, as perfect; and it is confidently
presented to the public as a standard edition.
Some altercation has occasionally taken place concerning the authorship
of certain numbers of the Federalist, a few of those now ascertained to have
been written by Mr. Madison having been claimed for Mr. Hamilton. It is
difficult to perceive the propriety or utility of such an altercation; for whether
we assign the disputed papers to the one or to the other, they are all admit-
ted to be genuine, and there will still remain to either of these gentlemen an
unquestioned number sufficient to establish for him a solid reputation for
sagacity, wisdom, and patriotism. It is not the extent of a man’s writings, but
the excellence of them, that constitutes his claim upon his cotemporaries and
upon posterity for the character of intellectual superiority: and, to the reader,
the difference in this case is nothing, since he will receive instruction from the
perusal, let them have been written by whom they may.
The present moment may be regarded as peculiarly favourable for the
republication ofthis work. Mr. Hamilton is dead; and both Mr. Jay and
Mr. Madison have retired from the busy scenes of life. The atmosphere of
political passions through which their principles and actions were lately
viewed has disappeared, and has been replaced by one more pure and tran-
lxxxv
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quil. Their political virtues are now manifest and almost universally admit-
ted. Time, which tests the truth of every thing, has been just to their merits,
and converted the reproaches ofparty spirit into expressions of gratitude for
the usefulness of their labours. It is to be hoped that neither a mistaken zeal
of friendship for departed worth, nor an inclination to flatter living virtue,
will induce any one to disturb this growing sentiment of veneration.
To the Federalist the publisher has added the Letters of Pacificus, written
by Mr. Hamilton, and an answer to those Letters by Helvidius, from the
pen of Mr. Madison. As these two eminent men had laboured in unison to
inculcate the general advantages to be derived from the Constitution, it
cannot be deemed irrelevant to shew in what particular point, as it respects
the practical construction of that instrument, they afterwards differed. The
community is, perhaps, always more enlightened by the candid criticisms of
intelligent conflicting minds than it is by their concurring opinions.
In this collection, the Act of Confederation and the Constitution of the
United States also find an appropriate place. They are the text upon which the
Federalist is a commentary. By comparing these two national constitutions,
and reflecting upon the results of each, the defects of the former and the per-
fections of the latter will be easily perceived; and the American people may be
thence instructed, that however prudence may dictate the necessity of cau-
tion in admitting innovations upon established institutions, yet that it is at all
times adviseable to listen with attention to the suggestions and propositions,
of temperate and experienced statesmen, for the cure of political evils and the
promotion of the general welfare.
The Constitution of the United States has had, in the sunshine of peace
and in the storm of war, a severe but impartial trial, and it has amply fulfilled
the expectations of its friends and completely dissipated the fears of its early
opponents. It may, in truth, be asserted, that the ten first declaratory and re-
strictive amendatory clauses, proposed at the session of congress which com-
menced on the 4th ofMarch, 1789, and which were ratified by the legislatures
of the states, fully satisfied the scruples of those who were inimical to that in-
strument as it was first adopted, and by whom the amendments were con-
sidered necessary as a safeguard for religious and civil liberty. Thus, and still
further, amended, the Constitution, as a great rule of political conduct, has
guided the public authorities of the United States through the unprecedented
political vicissitudes and the perilous revolutionary commotions which have
Preface to the Gideon Edition
lxxxvi
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agitated the human race for the last quarter of a century, to a condition at
once so prosperous, so commanding, and so happy, that it has wholly out-
stripped all previous foresight and calculation. When we look back upon the
state of inertness in which we reposed under the Act of Confederation, to the
languishment of our commerce, and the indifference with which, in that situ-
ation, we were regarded by foreign governments, and compare that disposi-
tion ofthings with the energy to which we were subsequently roused by
the operation of the Constitution, with the vast theatre on which, under the
influence of its provisions, our maritime trade has been actively employed,
with the freedom and plenty which we enjoy at home, the respect entertained
for the American name abroad, and the alacrity with which our favour and
friendship are sought by the nations of the earth, our thankfulness to Provi-
dence ought to know no bounds, and to the able men who framed and have
supported the Constitution should only be limited by those paramount con-
siderations which are indispensable to the perpetuation and increase of the
blessings which have been already realized.
The perspicuous brevity of the Constitution has left but little room for
misinterpretation. But if at any time ardent or timid minds have exceeded or
fallen short of its intentions; if the precision of human language has, in the
formation of this instrument, been inadequate to the expression of the exact
ideas meant to be conveyed by its framers; if, from the vehemence of party
spirit, it has been warped by individuals, so as to incline it either too much
towards monarchy or towards an unmodified democracy; let us console
ourselves with the reflection, that however these aberrations may have tran-
siently prevailed, the essential principles of the Representative System of gov-
ernment have been well preserved by the clear-sighted common sense of the
people; and that our affections all concentre in one great object, which is the
improvement and the glory of our country.
After deriving so many and such uncommon benefits from the Consti-
tution, the notion ofan eventual dissolution ofthis Union must be held,
by every person of unimpaired intellect, as entirely visionary. The state gov-
ernments, divested of scarcely any thing but national authority, have an-
swered, or are competent to answer, every purpose of amelioration within
the boundaries of the territory to which they are respectively restricted;
whilst, in times of difficulty and danger, acting directly upon an intimate
knowledge of local resources and feeling, they are enabled to afford efficient
Preface to the Gideon Edition
lxxxvii
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aid to the exertions of the national government in the defence and protection
of the republic. These truths are obvious: they have been demonstrated in
times of domestic tranquillity, of internal commotion, and of foreign hostil-
ity. In return, the advantages which the national government dispenses to the
several states are keenly felt and highly relished. When the Constitution was
ratified, Rhode Island and North Carolina, from honest but mistaken con-
victions, for a moment withheld their assent. But when Congress proceeded
solemnly to enact that the manufactures of those states should be considered
as foreign, and that the acts laying a duty on goods imported and on tonnage
should extend to them, they hastened, with a discernment quickened by a
sense of interest, and at the same time honourable to their patriotic views, to
unite themselves to the Confederation.
The only alteration of importance which the Constitution has undergone
since its adoption, is that which changes the mode of electing the President
and Vice-President. It is believed that, all things being duly weighed, the al-
teration has been beneficial. If it enables a man to aim, with more directness,
at the first office in the gift of the people, it equally tends to prevent the re-
currence of an unpleasant contest for precedency, between the partizans of
any two individuals, in Congress, to which body, in the last resort, the choice
is referred. Besides, whether the Constitution should prescribe it or not, the
people themselves would invariably designate the man they intended for
chief magistrate; a reflection which may serve to convince us that the change
in question is more in form than in fact.
To conclude, the appearance of so perfect an edition of the Federalist as
the present must be allowed to be, may be regarded as the more fortunate,
as the Journal ofthe Convention that framed the Constitution is about to
be published, and a new light to be thus shed upon the composition of that
instrument. The Act of Confederation, and the Constitution itself, have been,
by permission of Mr. Adams, the Secretary of State, carefully compared with
the originals deposited in the Office of that Department; and their accuracy
may therefore be relied on, even to the punctuation.
[jacob gideon]
City of Washington,
May, 1818
Preface to the Gideon Edition
lxxxviii
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No. 1
by Alexander Hamilton
Introduction
After full experience of the insufficiency of the existing federal government,
you are invited to deliberate upon 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 to decide, by
their conduct and example, 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 politi-
cal 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 pe-
riod when 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, by adding the inducements of philanthropy to those of patriot-
ism, will 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 judi-
cious estimate of our true interests, uninfluenced by considerations foreign
to the public good. But this is more ardently to be wished for, than seriously
to be expected. The plan offered to our deliberations, affects too many par-
ticular interests, innovates upon too many local institutions, not to involve in
its discussion a variety of objects extraneous to its merits, and of views, pas-
sions and prejudices little favourable 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
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a certain class ofmen 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 an-
other class ofmen, 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 confedera-
cies, than from its union under one government.
It is not, however, my design to dwell upon observations of this nature. I
am aware that it would be disingenuous to resolve indiscriminately the oppo-
sition of any set of men into interested or ambitious views, merely because
their situations might subject them to suspicion. Candour will oblige us to
admit, that even such men may be actuated by upright intentions; and it can-
not be doubted, that much of the opposition, which has already shown itself,
or that may hereafter make its appearance, will spring from sources blame-
less at least, if not respectable . . . the honest errors of minds led astray by pre-
conceived jealousies and fears. So numerous indeed and so powerful are the
causes which serve to give a false bias to the judgement, that we, upon many
occasions, see wise and good men on the wrong as well as on the right side
ofquestions, ofthe first magnitude to society. This circumstance, ifduly
attended to, would always furnish a lesson of moderation to those, who are
engaged in any controversy, however well persuaded of being in the right.
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
actuated by purer principles than their antagonists. Ambition, avarice, per-
sonal animosity, party opposition, and many other motives, not more laud-
able than these, are apt to operate as well upon those who support, as upon
those who oppose, the right side ofa question. Were there not even these
inducements to moderation, nothing could be more ill judged than that in-
tolerant 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, just as these sentiments must appear to candid men, we have al-
ready 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
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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 by 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 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
public good. It will be forgotten, on the one hand, that jealousy is the usual
concomitant of violent love, and that the noble enthusiasm of liberty is too
apt to be infected with a spirit of narrow and illiberal distrust. On the other
hand, it will be equally forgotten, that the vigour of government is essential
to the security of liberty; that, in the contemplation of a sound and well in-
formed judgment, their interests can never be separated; and that a danger-
ous ambition more often lurks behind the specious mask of zeal for the rights
of the people, than under the forbidding appearances of zeal for the firmness
and efficiency of government. History will teach us, that the former has been
found a much more certain road to the introduction of despotism, than the
latter, and that of those men who have overturned the liberties of republics,
the greatest number have begun their career, by paying an obsequious court
to the people . . . commencing demagogues, and ending tyrants.
In the course ofthe preceding observations it has been my aim, fellow
citizens, to put 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
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*The same idea, tracing the arguments to their consequences, is held out in several of
the late publications against the New Constitution.
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 par-
ticulars . . . The utility of the UNION to your political prosperity . . . The in-
sufficiency of the present confederation to preserve that Union . . . The necessity
of a government at least equally energetic with the one proposed, to the attain-
ment of this object . . . The conformity of the proposed constitution to the true
principles of republican government . . . Its analogy to your own state constitu-
tion . . . 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 endeavour to give a satisfactory
answer to all the objections which shall have made their appearance, that may
seem to have any claim to 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 pri-
vate circles of those who oppose the new constitution, that the Thirteen States
are of too great extent for any general system, and that we must of necessity
resort to separate confederacies of distinct portions of the whole.* This doc-
trine will, in all probability, be gradually propagated, till it has votaries
enough to countenance its open avowal. For nothing can be more evident, to
those who are able to take an enlarged view of the subject, than the alterna-
tive of an adoption of the constitution, or a dismemberment of the Union. It
may, therefore, be essential to examine particularly 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 be done.
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No. 2
by John Jay
Concerning Dangers from Foreign Force & Influence
When the people of America reflect, that the question now submitted to their
determination, is one ofthe most important that has engaged, or can well
engage, their attention, the propriety of their taking a very comprehensive, as
well as a very serious, view of it, must 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 govern-
ment, than 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 in-
sist 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
formerly much opposed to it, are at present of the number. Whatever may be
the arguments or inducements which have wrought this change in the senti-
ments 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.
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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 lib-
erty. Providence has in a particular manner blessed it with a variety of soils
and productions, and watered it with innumerable streams, for the delight
and 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 simi-
lar 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 their 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 denomi-
nations of men among us. To all general purposes we have uniformly been
one people... each individual citizen every where enjoying the same national
rights, privileges, and protection. As a nation we have made peace and war:
as a nation we have vanquished our common enemies: as a nation we have
formed alliances and made treaties, and entered into various compacts and
conventions with foreign states.
A strong sense ofthe value and blessings of Union induced the people,
at a very early period, to institute a federal government to preserve and per-
petuate it. They formed it almost as soon as they had a political existence; nay,
at a time, when their habitations were in flames, when many of them were
bleeding in the field, 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
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people. It is not to be wondered at that a government instituted in times so
inauspicious, should on experiment be found greatly deficient and inade-
quate to the purpose it was intended to answer.
This intelligent people perceived and regretted these defects. Still con-
tinuing no less attached to union, than enamoured 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, con-
vened 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 patri-
otism, virtue, and wisdom, in times which tried the souls 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
consultations; and finally, without having been awed by power, or influenced
by any passion, except love for their country, they presented and recom-
mended 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 approba-
tion, 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, as has been already remarked, it is more to be
wished than expected that it may be so considered and examined. Experience
on a former occasion teaches us not to be too sanguine in such hopes. It is
not yet forgotten, that well grounded apprehensions of imminent danger in-
duced the people of America to form the memorable Congress of 1774. That
body recommended certain measures to their constituents, and the event
proved their wisdom; yet it is fresh in our memories how soon the press
began to teem with pamphlets and weekly papers against those very mea-
sures. Not only many of the officers of government who obeyed the dictates
of personal interest, but others from a mistaken estimate of consequences,
from the undue influence of ancient attachments, or whose ambition aimed
at objects which did not correspond with the public good, were indefatigable
in their endeavours to persuade the people to reject the advice of that patri-
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otic congress. Many indeed were deceived and deluded, but the great major-
ity 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 ex-
perienced 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 inquir-
ing into and discussing the true interests of their country, they must have ac-
quired 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 such measures only, 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 endeavours used to deter and dissuade
them from it. But if the people at large had reason to confide in the men of
that congress, few of whom had then been fully tried or generally known, still
greater reason have they now to respect the judgment and advice of the con-
vention; 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 con-
gress, as well as the late convention, have invariably joined with the people
in thinking that the prosperity of America depended on its Union. To pre-
serve 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 de-
preciate the importance of the union? or why is it suggested that three or four
confederacies would be better than one? I am persuaded in my own mind,
that the people have always thought right on this subject, and that their uni-
versal and uniform attachment to the cause of the union, rests on great and
weighty reasons. They who promote the idea of substituting a number of dis-
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tinct 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 forseen by every good citizen, that whenever the dissolu-
tion 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
by John Jay
The same Subject continued
It is not a new observation that the people of any country (if like the Ameri-
cans intelligent and well informed) seldom adopt, and steadily persevere for
many years, in any erroneous opinion respecting their interests. That con-
sideration naturally tends to create great respect for the high opinion which
the people of America have so long and uniformly entertained of the impor-
tance of their continuing firmly united under one federal government, vested
with sufficient powers for all general and national purposes.
The more attentively I consider and investigate the reasons which appear
to have given birth to this opinion, the more I become convinced that they
are cogent and conclusive.
Among the many objects to which a wise and free people find it necessary
to direct their attention, that of providing for their safety seems to be the first.
The safety of the people doubtless has relation to a great variety of circum-
stances and considerations, and consequently affords great latitude to those
who wish to define it precisely and comprehensively.
At present I mean only to consider it as it respects security for the preser-
vation of peace and tranquillity, as well against dangers, from foreign arms
and influence, as against dangers arising from domestic causes. As the former
of these comes first in order, it is proper it should be the first discussed. Let
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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 may 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 the
additional circumstance of neighbourhood to attend to.
It is of high importance to the peace of America, that she observe the law
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 con-
federacies. For this opinion various reasons may be assigned.
When once an efficient national government is established, the best men
in the country will not only consent to serve, but will also generally be ap-
pointed to manage it; for although town, or county, 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 tal-
ents 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 un-
common 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 the other nations, as well
as more safe with respect to ourselves.
Under the national government, treaties and articles of treaties, as well as
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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.
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; and those
temptations not reaching the other states, and consequently having little or
no influence on the national government, the temptations 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.
If even the governing party in a state should be disposed to resist such
temptations, yet as such temptations may, and commonly do, result from cir-
cumstances peculiar to the state, and may affect a great number of the inhabi-
tants, the governing party may not always be able, if willing, to prevent the
injustice meditated, or to punish the aggressors. But the national govern-
ment, 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
of 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 re-
spect, the former most favors the safety of the people.
As to those just causes ofwar 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.
Such violences are more frequently occasioned by the passions and inter-
ests of a part than of the whole of one or two states than of the union. Not a
single Indian war has yet been produced by aggressions of the present federal
government, feeble as it is; but there are several instances of Indian hostili-
ties having been provoked by the improper conduct of individual states, who,
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either unable or unwilling to restrain or punish offences, have given occasion
to the slaughter of many innocent inhabitants.
The neighbourhood of Spanish and British territories, bordering on some
states, and not on others, naturally confines the causes of quarrel more im-
mediately to the borderers. The bordering states, if any, will be those who,
under the impulse of sudden irritations, and a quick sense of apparent inter-
est or injury, will be most likely, by direct violence, to excite war with those
nations; and nothing can so effectually obviate that danger, as a national gov-
ernment, whose wisdom and prudence will not be diminished by the pas-
sions which actuate the parties immediately interested.
But not only fewer just causes of war will be given by the national govern-
ment, 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 with circumspection than the of-
fending state. The pride of states as well as of men, naturally disposes them to
justify all their actions, and opposes their acknowledging, correcting or re-
pairing their errors and offences. The national government in such cases will
not be affected by this pride, but will proceed with moderation and candour,
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 com-
pensations 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 XIVth, endeav-
oured 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 par-
don and receive his terms. They were obliged to submit to it for the sake of
peace. Would he on any occasion either have demanded or have received the
like humiliation from Spain, or Britain, or any other powerful nation?
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No. 4
by John Jay
The same Subject continued
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 pro-
posed 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 na-
tions, 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, that 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 motives, which affect only the mind of the sovereign,
often lead him to engage in wars not sanctioned by justice, or the voice and
interests of his people. But independent of these inducements to war, which
are most prevalent in absolute monarchies, but which well deserve our at-
tention, 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
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their markets cheaper than they can themselves, notwithstanding any efforts
to prevent it by bounties on their own, or duties on foreign fish.
With them and with most other European nations, we are rivals in navi-
gation and the carrying trade; and we shall deceive ourselves if we suppose
that any of them will rejoice to see these flourish in our hands: for as our
carrying trade cannot increase, without in some degree diminishing their’s, it
is more their interest and will be more their policy, to restrain, than to pro-
mote 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 man-
ner 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 plea-
sure 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 St. Lawrence on the other; nor will
either of them permit the other waters, which are between them and us, to
become the means of mutual intercourse and traffic.
From these and like considerations, which might, if consistent with pru-
dence, be more amplified and detailed, it is easy to see that jealousies and un-
easinesses may gradually slide into the minds and cabinets of other nations;
and that we are not to expect 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,
pretences to colour 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,
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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 pro-
vided for without government, either one or more or many, let us inquire
whether one good government is not, relative to the object in question, more
competent than any other given number whatever.
One government can collect and avail itself of the talents and experience
of the ablest men, in whatever part of the union they may be found. It can
move on uniform principles of policy. It can harmonize, assimilate, and pro-
tect 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
ofany 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 magis-
trate, will in a manner consolidate them into one corps, and thereby render
them more efficient than if divided into thirteen or into three or four distinct
independent bodies.
What would the militia ofBritain be, if the English militia obeyed the
government of England, if the Scotch militia obeyed the government of Scot-
land, and if the Welch 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 if we are wise, the time
may come, when the fleets of America may engage attention. But if one na-
tional 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 naviga-
tion 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
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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 at-
tacked would the others fly to its succour, and spend their blood and money
in its defence? Would there be no danger of their being flattered into neu-
trality by specious promises, or seduced by a too great fondness for peace to
decline hazarding their tranquillity and present safety for the sake of neigh-
bours, ofwhom 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, abound with such instances, and it is not improbable
that what has so often happened, would, under similar circumstances hap-
pen again.
But admit that they might be willing to help the invaded state or confed-
eracy. 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 the
associates shall he receive his orders? Who shall settle the terms ofpeace,
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 re-
sources of the whole, would be free from all these embarrassments, and con-
duce far more to the safety of the people.
But whatever may be our situation, whether firmly united under one na-
tional 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 or-
ganized 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 to provoke our re-
sentment. 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 con-
venient) or split into three or four independent and probably discordant re-
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publics 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 di-
vide, it never fails to be against themselves.
publius
No. 5
by John Jay
The same Subject continued
Queen Ann, 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 differ-
ences 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 interests, 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 endeavours to prevent or delay
this union.”
It was remarked in the preceding paper, that weakness and divisions at
home, would invite dangers from abroad, and that nothing would tend more
to secure us from them than union, strength and good government within
ourselves. This subject is copious and cannot easily be exhausted.
The history of Great-Britain is the one with which we are in general the
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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 enflamed, 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 confed-
eracy instead of the general interests of all America, would be the only objects
of their policy and pursuits. Hence, like most other bordering nations, they
would always be either involved in disputes and war, or live in the constant
apprehension of them.
The most sanguine advocates for three or four confederacies, cannot rea-
sonably 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 admit-
ting that to be practicable, yet what human contrivance can secure the con-
tinuance 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 man-
agement 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 pol-
icy, 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 neighbours, that mo-
ment would those neighbours behold her with envy and with fear. Both those
passions would lead them to countenance, if not to promote whatever might
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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 loose confidence in her neighbours, but
also to feel a disposition equally unfavourable to them. Distrust naturally cre-
ates distrust, and by nothing is good will and kind conduct more speedily
changed, than by invidious jealousies and uncandid imputations, whether
expressed or implied.
The North is generally the region of strength, and many local circum-
stances render it probable, that the most northern of the proposed confed-
eracies would, at a period not very far distant, be unquestionably more for-
midable then 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 Eu-
rope: 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 neighbours.
They who well consider the history of similar divisions and confederacies,
will find abundant reasons to apprehend, that those in contemplation would
in no other sense be neighbours, 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 ex-
actly in the situation in which some nations doubtless wish to see us, in which
we should be formidable only to each other.
From these considerations it appears that those persons are greatly mis-
taken, who suppose that alliances offensive and defensive might be formed
between these confederacies, which 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 for-
merly divided, combine in such alliances, or unite their forces against a
foreign enemy? The proposed confederacies will be distinct nations. Each of
them would have to regulate its commerce with foreigners 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
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degrees of political attachment to, and connection with, different foreign na-
tions. 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, neighbour-
ing 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 there-
fore 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 alli-
ances 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 coun-
try, than it is to persuade or compel them to depart. How many conquests did
the Romans and others make in the character 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
by Alexander Hamilton
Concerning Dangers from War between the States
The three last numbers of this work 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
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*Aspasia, vide Plutarch’s life of Pericles.
a different, and, perhaps, still more alarming kind, those which will in all
probability flow from dissentions between the states themselves, and from
domestic factions and convulsions. These have been already in some in-
stances slightly anticipated; but they deserve a more particular and more full
investigation.
If these states should either be wholly disunited, or only united in partial
confederacies, a man must be far gone in Utopian speculations, who can se-
riously doubt that 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 ambitions, vindictive, and rapacious. To look for a
continuation of harmony between a number of independent unconnected
sovereignties, situated in the same neighbourhood, would be to disregard
the uniform course of human events, and to set at defiance the accumulated
experience of ages.
The causes of hostility among nations are innumerable. There are some
which have a general and almost constant operation upon the collective
bodies of society. Of this description are the love of power, or the desire of
pre-eminence and dominion . . . the jealousy of power, or the desire of equal-
ity 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 mem-
bers. Men of this class, whether the favourites 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 resentments of a prosti-
tute,* at the expense of much of the blood and treasure of his countrymen,
attacked, vanquished, and destroyed the city ofthe Samnians. The same
man, stimulated by private pique against the Magarensians, another nation of
Greece, or to avoid a prosecution with which he was threatened as an accom-
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*Madame de Maintenon.
†Duchess of Marlborough.
‡Madame de Pompadoure.
plice in a supposed theft of the statuary Phidias, or to get rid of the accu-
sations prepared to be brought against him for dissipating the funds of the
state in the purchase of popularity, or from a combination of all these causes,
was the primitive author of that famous and fatal war, distinguished in the
Grecian annals by the name ofthe Peloponnesian war; which, after vari-
ous vicissitudes, intermissions, and renewals, terminated in the ruin of the
Athenian commonwealth.
The ambitious cardinal, who was prime minister to Henry VIIIth, per-
mitting his vanity to aspire to the triple crown, entertained hopes of suc-
ceeding in the acquisition ofthat splendid prize by the influence ofthe
emperor Charles Vth. To secure the favour 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 coun-
sels, as ofEurope in general. For if there ever was a sovereign who bid fair
to realize the project of universal monarchy, it was the emperor Charles Vth,
of whose intrigues Wolsey was at once the instrument and the dupe.
The influence which the bigotry of one female,* the petulances of an-
other,† and the cabals of a third,‡ had in the cotemporary policy, ferments,
and pacifications, of a considerable part of Europe, are topics that have been
too often descanted upon not to be generally known.
To multiply examples of the agency of personal considerations in the pro-
duction 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.
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But notwithstanding the concurring testimony of experience, in this par-
ticular, 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 humours 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.
We may ask these projectors in politics, whether it is not 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 gen-
eral or remote considerations of policy, utility, or justice? Have republics in
practice been less addicted to war than monarchies? Are not the former
administered by men as well as the latter? Are there not aversions, predilec-
tions, rivalships, and desires of unjust acquisition, 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 pro-
pensities? Is it not well known, that their determinations are often governed
by a few individuals in whom they place confidence, and that they are of
course liable to be tinctured by the passions and views ofthose 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 ofcommerce, in many instances, administered new incen-
tives 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 neighbouring monarchies of the
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*The League of Cambray, comprehending the Emperor, the King of France, the
King of Arragon, and most of the Italian Princes and States.
† The Duke of Marlborough.
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 ofItaly, and even to the gates ofRome, before Scipio, in turn, gave
him an overthrow in the territories of Carthage, and made a conquest of the
commonwealth.
Venice, in latter times, figured more than once in wars ofambition; till
becoming an object of terror to the other Italian states, Pope Julius the Sec-
ond found means to accomplish that formidable league,* which gave a deadly
blow to the power and pride of that haughty republic.
The provinces ofHolland, till they were overwhelmed in debts and taxes,
took a leading and conspicuous part in the wars ofEurope. 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 Lewis XIV.
In the government ofBritain the representatives of the people compose
one branch of the national legislature. Commerce has been for ages the pre-
dominant pursuit of that country. Yet few nations have been more frequently
engaged in war; and the wars, in which that kingdom has been engaged, have
in numerous instances proceeded from the people. There have been, if I may
so express it, almost as many popular as royal wars. The cries of the nation
and the importunities of their representatives have, upon various occasions,
dragged their monarchs into war, or continued them in it, contrary to their
inclinations, and sometimes contrary to the real interests of the state. In that
memorable struggle for superiority, between the rival houses of Austria and
Bourbon, which so long kept Europe in a flame, it is well known that the an-
tipathies of the English against the French, seconding the ambition, or rather
the avarice, of a favourite leader,† protracted the war beyond the limits
marked out by sound policy, and for a considerable time in opposition to the
views of the court.
The wars of these two last mentioned nations have in a great measure
grown out of commercial considerations: the desire of supplanting, and the
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fear of being supplanted either in particular branches of traffic, or in the
general advantages of trade and navigation; and sometimes even the more
culpable desire of sharing in the commerce of other nations, without their
consent.
The last war but two between Britain and Spain, sprang from the attempts
of the English merchants, to prosecute an illicit trade with the Spanish main.
These unjustifiable practices on their part, produced severities on the part of
the Spaniards, towards the subjects of Great Britain, which were not more
justifiable; because they exceeded the bounds of a just retaliation, and were
chargeable with inhumanity and cruelty. Many of the English who were taken
on the Spanish coasts, were sent to dig in the mines of Potosi; and by the
usual progress of a spirit of resentment, the innocent were after a while con-
founded with the guilty in indiscriminate punishment. The complaints of the
merchants kindled a violent flame throughout the nation, which soon after
broke out in the house of commons, and was communicated from that body
to the ministry. Letters of reprisal were granted, and a war ensued; which, in
its consequences, overthrew all the alliances that but twenty years before had
been formed, with sanguine expectations of the most beneficial fruits.
From this summary ofwhat 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 the expec-
tation of peace and cordiality between the members of the present confeder-
acy, 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, the weaknesses, and the evils inci-
dent 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 inconveniencies felt every where 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 in-
surrections and rebellions in Massachusetts, declare!
So far is the general sense of mankind from corresponding with the tenets
ofthose, who endeavour to lull asleep our apprehensions ofdiscord and
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*Vide Principes des Negotiations par l’Abbe de Mably.
hostility between the states, in the event of disunion, that it has from long ob-
servation of the progress of society become a sort of axiom in politics, that
vicinity, or nearness of situation, constitutes nations natural enemies. An in-
telligent writer expresses himself on this subject to this effect: “Neighbour-
ing nations (says he) are naturally enemies of each other, unless their
common weakness forces them to league in a confederate republic,
and their constitution prevents the differences that neighbourhood occa-
sions, extinguishing that secret jealousy, which disposes all states to aggran-
dize themselves at the expense of their neighbours.”* This passage, at the
same time, points out the evil and suggests the remedy.
publius
No. 7
by Alexander Hamilton
The subject continued, and Particular Causes Enumerated
It is sometimes asked, with an air of seeming triumph, what inducements the
states could 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 un-
fortunately for us, the question admit of a more particular answer. There are
causes of difference 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 ex-
pected, 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 the
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 un-
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decided 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 discussions concerning
the right 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 submis-
sion of the Indian proprietors, was subject to the jurisdiction of the king of
Great Britain, till it was relinquished by the treaty of peace. This, it has been
said, was at all events an acquisition to the confederacy by compact with a
foreign power. It has been the prudent policy of Congress to appease this
controversy, by prevailing upon the states to make cessions to the United
States for the benefit of the whole. This has been so far accomplished, as
under a continuation of the union, to afford a decided prospect of an ami-
cable termination of the dispute. A dismemberment of the confederacy how-
ever 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 have made cessions, on a principle of federal com-
promise, would be apt, when the motive of the grant had ceased, to reclaim
the lands as a reversion. The other states would no doubt insist on a propor-
tion, by right of representation. Their argument would be, that a grant once
made, could not be revoked; and that the justice of their participating in ter-
ritory 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. Dif-
ferent 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 ofWestern 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 fu-
ture, we shall have good ground to apprehend, that the sword would some-
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times be appealed to as the arbiter of their differences. The circumstances of
the dispute between Connecticut and Pennsylvania, respecting the lands at
Wyoming, admonish us not to be sanguine in expecting an easy accommo-
dation 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 favour of Pennsylvania. But Connecticut gave
strong indications of dissatisfaction with that determination; nor did she ap-
pear to be entirely resigned to it, till by negotiation and management some-
thing 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 re-
luctance in determinations to their disadvantage.
Those who had an opportunity of seeing the inside of the transactions,
which attended the progress ofthe controversy between this state and the
district ofVermont, 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; another, the interest of certain individuals of influence in the neigh-
bouring states, who had obtained grants of lands under the actual govern-
ment of that district. Even the states which brought forward claims, in con-
tradiction 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, discov-
ered a warm zeal for the independence of Vermont; and Maryland, until
alarmed by the appearance of a connexion between Canada and that place,
entered deeply into the same views. These being small states, saw with an un-
friendly 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 em-
broil the states with each other, if it should be their unpropitious destiny to
become disunited.
The competitions ofcommerce would be another fruitful source of
contention. The states less favourably circumstanced, would be desirous of
escaping from the disadvantages oflocal situation, and ofsharing in the
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advantages of their more fortunate neighbours. Each state, or separate con-
federacy, would pursue a system of commercial polity 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 from the earliest settlement of the country,
would give a keener edge to those causes of discontent, than they would natu-
rally have, independent of this circumstance. We should be ready to denomi-
nate injuries, those things which were in reality the justifiable acts of indepen-
dent sovereignties consulting a distinct interest. The spirit of enterprise, which
characterizes the commercial part of America, has left no occasion of dis-
playing 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 endeavour 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 trib-
utary 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 neces-
sities 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 favour of the citizens of her neighbours; nor
would it be practicable, if there were not this impediment in the way, to dis-
tinguish 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 neighbours, and, in their
opinion, so oppressive? Should we be able to preserve it against the incum-
bent weight of Connecticut on the one side, and the co-operating pressure of
New Jersey on the other? These are questions that temerity alone will answer
in the affirmative.
The public debt of the union would be a further cause of collision between
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the separate states or confederacies. The apportionment, in the first instance,
and the progressive extinguishment, afterwards, would be alike productive
of ill humour and animosity. How would it be possible to agree upon a rule
of apportionment, satisfactory to all? There is scarcely any, that can be pro-
posed, 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 do-
mestic 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 of the public, beyond the proportion of the state in the total amount
of the national debt, would be strenuous for some equitable and effectual
provision. The procrastinations of the former, would excite the resentments
ofthe latter. The settlement ofa rule would in the mean time be post-
poned, by real differences of opinion, and affected delays. The citizens of the
states interested, would clamour; foreign powers would urge for the satisfac-
tion of their just demands; and the peace of the states would be exposed to
the double contingency of external invasion, and internal contention.
But 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, in the 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 burthen. The others would as naturally be dis-
inclined to a revision, which was likely to end in an increase of their own in-
cumbrances. Their refusal would afford to the complaining states a pretext
for withholding their contributions, too plausible not to be embraced with
avidity; and the non-compliance of these states with their engagements,
would be a ground of bitter dissention and altercation. If even the rule
adopted should in practice justify the equality of its principle, still delin-
quencies in payment, on the part of some of the states, would result from a
diversity of other causes . . . the real deficiency of resources; the mismanage-
ment of their finances; accidental disorders in the administration of the gov-
ernment; and in addition to the rest, the reluctance with which men com-
monly part with money for purposes, that have outlived the exigencies which
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No. 7
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produced them, and interfere with the supply of immediate wants. Delin-
quencies from whatever causes would be productive of complaints, recrimi-
nations, 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, which 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 consid-
ered as another probable source of hostility. We are not authorized to expect,
that a more liberal, or more equitable spirit would preside over the legis-
lations 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 Con-
necticut, in consequence ofthe enormities perpetrated by the legislature
ofRhode Island; and we may reasonably infer, that in similar cases, under
other circumstances, a war, not of parchment, but of the sword, would chas-
tise 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 pre-
ceding papers. From the view they have exhibited of this part of the subject,
this conclusion is to be drawn, that America, if not connected at all, or only
by the feeble tie of a simple league, offensive and defensive, would by the op-
eration of such opposite and 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 be-
come a prey to the artifices and machinations of powers equally the enemies
of them all. Divide et impera must be the motto of every nation, that either
hates or fears us.
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No. 8
by Alexander Hamilton
The effects of Internal War in producing Standing Armies,
and other institutions unfriendly to liberty
Assuming it therefore as an established truth, that, in case of disunion, the
several states; or such combinations of them as might happen to be formed
out of the wreck of the general confederacy, would be subject to those vicis-
situdes of peace and war, of friendship and enmity with each other, which
have fallen to the lot of all neighbouring nations not united under one gov-
ernment, 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 periods 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, notwith-
standing, been productive of the signal advantage of rendering sudden con-
quests 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 neighbouring 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
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*This objection will be fully examined in its proper place; and it will be shown that
the only rational precaution which could have been taken on this subject, has been taken;
and a much better one than is to be found in any Constitution that has been heretofore
framed in America, most of which contain no guard at all on this subject.
history of nations subdued, and empires overturned; but of towns taken and
retaken, of battles that decide nothing, of retreats more beneficial than victo-
ries, 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 neighbours. 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
ofnational conduct. Even the ardent love ofliberty 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 se-
curity to institutions which have a tendency to destroy their civil and politi-
cal 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 cor-
respondent appendages of military establishment. Standing armies, it is said,
are not provided against in the new constitution; and it is thence inferred that
they would exist under it.* This inference, from the very form of the propo-
sition, is, at best, problematical and uncertain. But standing armies, it
may be replied, must inevitably result from a dissolution of the confederacy.
Frequent war, and constant apprehension, which require a state of as con-
stant preparation, will infallibly produce them. The weaker states, or confed-
eracies, would first have recourse to them, to put themselves upon an equal-
ity with their more potent neighbours. They would endeavour to supply the
inferiority of population and resources, by a more regular and effective sys-
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tem of defence, by disciplined troops, and by fortifications. They would, at
the same time, be obliged to strengthen the executive arm ofgovernment;
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 neighbours.
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 mortify-
ing and adventitious superiority. They would quickly resort to means similar
to those by which it had been effected, to reinstate themselves in their lost
pre-eminence. Thus we should in a little time see established in every part of
this country, the same engines of despotism which have been the scourge of
the old world. This, at least, would be the natural course of things; and our
reasonings will be likely to be just, in proportion as they are accommodated
to this standard.
These are not vague inferences deduced from speculative defects in a con-
stitution, the whole power of which is lodged in the hands of the people, or
their representatives and delegates; they are solid conclusions, drawn from
the natural and necessary progress of human affairs.
It may perhaps be asked, by way of objection, why did not standing armies
spring up out of the contentions which so often distracted the ancient re-
publics 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 reve-
nue, 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 companion of frequent
hostility.
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There is a wide difference also, between military establishments in a coun-
try which, by its situation, is seldom exposed to 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 subordina-
tion. The laws are not accustomed to relaxations, in favour of military exi-
gencies; the civil state remains in full vigour, neither corrupted nor con-
founded with the principles or propensities of the other state. The smallness
of the army forbids competition with the natural strength of the community,
and the citizens, not habituated to look up to the military power for protec-
tion, 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, though it may usefully aid the mag-
istrate to suppress a small faction, or an occasional mob, or insurrection, will
be utterly incompetent to the purpose of enforcing encroachments against
the united efforts of the great body of the people.
But in a country, where the perpetual menacings of danger oblige the gov-
ernment to be always prepared to repel it, her armies must be numerous
enough for instant defence. The continual necessity for his services enhances
the importance of the soldier, and proportionably degrades the condition of
the citizen. The military state becomes elevated above the civil. The inhabi-
tants of territories often the theatre of war, are unavoidably subjected to fre-
quent 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 as masters, is neither remote nor
difficult: but it is very difficult to prevail upon a people under such impres-
sions, 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
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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. This peculiar felicity of situation has, in a great degree, con-
tributed to preserve the liberty which that country to this day enjoys, in spite
of the prevalent venality and corruption. If 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 co-extensive with those of the
other great powers of Europe, she, like them, would in all probability, at this
day, be a victim to the absolute power of a single man. It is possible, though
not easy, for the people of that island to 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 ad-
vantage 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 dis-
proportioned in strength, to be able to give us any dangerous annoyance. Ex-
tensive 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 nor 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 medi-
tate dispassionately on its vast importance; 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 now flit
before the distempered imaginations of some of its adversaries, would then
quickly give place to the more substantial prospects of dangers, real, certain,
and extremely formidable.
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No. 9
by Alexander Hamilton
The Utility of the Union as a Safeguard against
Domestic Faction and Insurrection
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 revo-
lutions, by which they were kept perpetually vibrating 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 offelicity open themselves 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 ofgovernment should pervert the
direction, and tarnish the lustre, of those bright talents and exalted endow-
ments, for which the favoured soils that produced them have been so justly
celebrated.
From the disorders that disfigure the annals of those republics, the advo-
cates ofdespotism 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 re-
futed their gloomy sophisms. And, I trust, America will be the broad and
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solid foundation of other edifices not less magnificent, which will be equally
permanent monuments of their error.
But it is not to be denied, that the portraits they have sketched of republi-
can 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 of liberty would have been obliged
to abandon the cause of that species of government as indefensible. The sci-
ence of politics, however, like most other sciences, has received great im-
provement. The efficacy of various principles is now well understood, which
were either not known at all, or imperfectly known to the ancients. The regu-
lar distribution of power into distinct departments; the introduction of leg-
islative balances and checks; the institution of courts composed of judges,
holding their offices during good behaviour; the representation of the people
in the legislature, by deputies of their own election; these are either wholly
new discoveries, or have made their principal progress towards perfection
in modern times. They are means, and powerful means, by which the excel-
lencies ofrepublican government may be retained, and its imperfections
lessened or avoided. To this catalogue of circumstances, that tend to the ame-
lioration 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 im-
mediately concerns the object under consideration. It will, however, be of
use to examine the principle in its application to a single state, which shall
be attended to in another place.
The utility of a confederacy, as well to suppress faction, and to guard the
internal tranquillity ofstates, as to increase their external force and security,
is in reality not a new idea. It has been practised upon in different countries
and ages, and has received the sanction of the most approved writers on the
subjects of politics. The opponents of the plan proposed have with great as-
siduity cited and circulated the observations ofMontesquieu on the necessity
of a contracted territory for a republican government. But they seem not to
have been apprised of the sentiments of that great man expressed in another
part of his work, nor to have adverted to the consequences of the principle to
which they subscribe with such ready acquiescence.
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*Spirit of Laws, Vol. I. Book IX. Chap. I.
When Montesquieu recommends a small extent for republics, the stan-
dards 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 receive 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 pol-
icy, such a desperate expedient, might, by the multiplication of petty offices,
answer the views of men, who possess not qualifications to extend their
influence beyond the narrow circles of personal intrigue; but it could never
promote the greatness or happiness of the people of America.
Referring the examination of the principle itself to another 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 mem-
bers of the union; but would not militate against their being all compre-
hended 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,* 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 govern-
ment. 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
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kind of assemblage of societies, that constitute a new one, capable of increas-
ing 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 corruption. 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 con-
federate 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 re-
formed 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, be-
cause they contain a luminous abridgement of the principal arguments in
favour of the union, and must effectually remove the false impressions, which
a misapplication of the other parts of the work was calculated to produce.
They have, at the same time, an intimate connexion with the more immedi-
ate design ofthis paper, which is to illustrate the tendency ofthe union to
repress domestic faction and insurrection.
A distinction, more subtle than accurate, has been raised between a con-
federacy 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 col-
lective capacities, without reaching to the individuals of whom they are com-
posed. It is contended, that the national council ought to have no concern
with any object of internal administration. An exact equality of suffrage be-
tween the members, has also been insisted upon as a leading feature of a con-
federate government. These positions are, in the main, arbitrary; they are
supported neither by principle nor precedent. It has indeed happened, that
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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 sub-
ject. 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 in-
curable 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 ex-
tent, modifications, and objects, of the federal authority, are mere matters of
discretion. So long as the separate organization of the members be not abol-
ished, 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 con-
federacy. 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 the 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 re-
spective cities. This was certainly the most delicate species of interference
in their internal administration; for if there be any thing that seems exclu-
sively 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 writer; and we shall be led to conclude,
that they are the novel refinements of an erroneous theory.
publius
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No. 10
by James Madison
The same Subject continued
Among the numerous advantages promised by a well constructed union,
none deserves to be more accurately developed, than its tendency to break
and control the violence of faction. The friend of popular governments,
never finds himself so much alarmed for their character and fate, as when he
contemplates their propensity to this dangerous vice. He will not fail, there-
fore, 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 every where per-
ished; as they continue to be the favourite 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
every where 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 ac-
cording to the rules ofjustice, and the rights ofthe 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 evi-
dence ofknown 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 labour, have been erroneously charged on
the operation of our governments; but it will be found, at the same time, that
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other causes will not alone account for many of our heaviest misfortunes;
and, particularly, for that prevailing and increasing distrust of public engage-
ments, 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 un-
steadiness 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 citi-
zens, or to the permanent and aggregate interests of the community.
There are two methods of curing the mischiefs of faction: The one, by re-
moving its causes; the other, by controling its effects.
There are again two methods ofremoving the causes offaction: 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 is 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 a 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 recip-
rocal influence on each other; and the former will be objects to which the
latter will attach themselves. The diversity in the faculties of men, from
which the rights of property originate, is not less an insuperable obstacle to
an uniformity of interests. The protection of these faculties, is the first object
ofgovernment. From the protection ofdifferent 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 dif-
ferent interests and parties.
The latent causes offaction are thus sown in the nature ofman; and we
No. 10
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see them every where brought into different degrees of activity, according to
the different circumstances of civil society. A zeal for different opinions con-
cerning religion, concerning government, and many other points, as well of
speculation as of practice; an attachment to different leaders, ambitiously
contending for pre-eminence and power; or to persons of other descriptions,
whose fortunes have been interesting to the human passions, have, in turn,
divided mankind into parties, inflamed them with mutual animosity, and
rendered them much more disposed to vex and oppress each other, than to
co-operate for their common good. So strong is this propensity of mankind,
to fall into mutual animosities, that where no substantial occasion presents
itself, the most frivolous and fanciful distinctions have been sufficient to
kindle their unfriendly passions, and excite their most violent conflicts. But
the most common and durable source offactions, 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 monied
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 fac-
tion in the necessary and ordinary operations of 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 impor-
tant acts of legislation, but so many judicial determinations, not indeed con-
cerning 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 ex-
pected to prevail. Shall domestic manufactures be encouraged, and in what
degree, by restrictions on foreign manufactures? are questions which would
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No. 10
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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 ap-
portionment of taxes, on the various descriptions of property, is an act which
seems to require the most exact impartiality; yet there is, perhaps, no legisla-
tive act in which greater opportunity and temptation are given to a predomi-
nant party, to trample on the rules of justice. Every shilling with which they
over-burden the inferior number, is a shilling saved to their own pockets.
It is in vain to say, that enlightened statesmen will be able to adjust these
clashing interests, and render them all subservient to the public good. En-
lightened 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 can-
not be removed; and that relief is only to be sought in the means of control-
ling its effects.
If a faction consists of less than a majority, relief is supplied by the re-
publican 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 con-
stitution. When a majority is included in a faction, the form of popular gov-
ernment, 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 alone this form of government can be
rescued from the opprobrium under which it has so long laboured, 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 co-existent 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
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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 ofa small number ofcitizens, 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, results
from the form of government itself; and there is nothing to check the in-
ducements to sacrifice the weaker party, or an obnoxious individual. Hence
it is, that such democracies have ever been spectacles of turbulence and con-
tention; 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 patronised
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 opin-
ions, and their passions.
A republic, by which I mean a government in which the scheme of repre-
sentation 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 ofthe 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
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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 most favourable to the election of
proper guardians of the public weal; and it is clearly decided in favour 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 mul-
titude. Hence, the number of representatives in the two cases not being in
proportion to that of the constituents, and being proportionally greatest 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 num-
ber of citizens in the large than in the small republic, it will be more difficult
for unworthy candidates to practise with success the vicious arts, by which
elections are too often carried; and the suffrages of the people being more
free, will be more likely to centre in men who possess the most attractive
merit, and the most diffusive and established characters.
It must be confessed, that in this, as in most other cases, there is a mean,
on both sides of which inconveniences will be found to lie. By enlarging too
much the number of electors, you render the representative too little ac-
quainted with all their local circumstances and lesser interests; as by reduc-
ing 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
ofterritory, which may be brought within the compass ofrepublican, than
of democratic government; and it is this circumstance principally which ren-
ders factious combinations less to be dreaded in the former, than in the lat-
ter. 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
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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 vari-
ety 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 dishonourable 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 controling the effects of faction, is enjoyed by a large
over a small republic . . . is enjoyed by the union over the states composing it.
Does this advantage consist in the substitution of representatives, whose en-
lightened views and virtuous sentiments render them superior to local preju-
dices, and to schemes of injustice? It will not be denied, that the representa-
tion 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 particu-
lar 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 pro-
portion as such a malady is more likely to taint a particular county or district,
than an entire state.
In the extent and proper structure of the union, therefore, we behold a re-
publican remedy for the diseases most incident to republican government.
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No. 11
49
And according to the degree of pleasure and pride we feel in being republi-
cans, ought to be our zeal in cherishing the spirit, and supporting the char-
acter of federalists.
publius
No. 11
by Alexander Hamilton
The Utility of the Union in respect to Commerce and a Navy
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, with
painful solicitude, to what this country is capable of becoming. They foresee
the dangers, that may threaten their American dominions from the neigh-
bourhood ofstates, which have all the dispositions, and would possess all
the means, requisite to the creation ofa powerful marine. Impressions of
this kind will naturally indicate the policy of fostering divisions among us,
and depriving us, as far as possible, of an active commerce in our own
bottoms. This would answer then the threefold purpose of preventing our
interference in their navigation, of monopolizing the profits of our trade, and
of clipping the wings on which we might soar to a dangerous greatness. Did
not prudence forbid the detail, it would not be difficult to trace, by facts, the
workings of this policy to the cabinets of ministers. If we continue united, we
may, in a variety of ways, counteract a policy so unfriendly to our prosperity.
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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, to any manufacturing nation, of the mar-
kets of three millions of people, increasing in rapid progression; for the most
part, exclusively addicted to agriculture, and likely from local circumstances
to remain in this disposition; and the immense difference there would be to
the trade and navigation of such a nation, between a direct communication
in its own ships, and an indirect conveyance of its products and returns, to
and from America, in the ships of another country. Suppose, for instance,
we had a government in America, capable of excluding Great Britain (with
whom we have at present no treaty of commerce) from all our ports; what
would be the probable operation of this step upon her politics? Would it not
enable us to negotiate, with the fairest prospect of success, for commercial
privileges of the most valuable and extensive kind, in the dominions of that
kingdom? When these questions have been asked, upon other occasions, they
have received a plausible, but not a solid or satisfactory answer. It has been
said, that prohibitions on our part would produce no change in the system of
Britain; because she could prosecute her trade with us, through the medium
of the Dutch, who would be her immediate customers and pay-masters 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 advan-
tage 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 de-
duction? Would not so circuitous an intercourse facilitate the competitions
of other nations, by enhancing the price of British commodities in our mar-
kets, 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 Great Britain, from such a state
of things, conspiring with the prepossessions of a great part of the nation in
favour of the American trade, and with the importunities of the West India
islands, would produce a relaxation in her present system, and would let us
into the enjoyment of privileges in the markets of those islands and else-
where, from which our trade would derive the most substantial benefits.
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Such a point gained from the British government, and which could not be
expected without an equivalent in exemptions and immunities in our mar-
kets, 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 to-
wards 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 cre-
ate 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 particularly 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 very commanding one. And if
to this consideration we add that ofthe usefulness ofsupplies from this
country, in the prosecution of military operations in the West Indies, it will
readily be perceived, that a situation so favourable, would enable us to bar-
gain 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, ere long, to become the arbiter ofEurope in Amer-
ica; and to be able to incline the balance ofEuropean 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 rival-
ships ofthe parts would make them checks upon each other, and would
frustrate all the tempting advantages, which nature has kindly placed within
our reach. In a state so insignificant, our commerce would be a prey to the
wanton intermeddlings of all nations at war with each other; who, having
nothing to fear from us, would, with little scruple or remorse, supply their
wants by depredations on our property, as often as it fell in their way. The
rights of neutrality will only be respected, when they are defended by an ade-
quate 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 combina-
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tions 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, a flourishing ma-
rine, would then be the inevitable offspring of moral and physical necessity.
We might defy the little arts of little politicians to control, or vary, the irre-
sistible and unchangeable course of nature.
But in a state of disunion, these combinations might exist, and might op-
erate with success. It would be in the power of the maritime nations, availing
themselves ofour universal impotence, to prescribe the conditions ofour
political existence; and as they have a common interest in being our carriers,
and still more in preventing us from becoming theirs, they would, in all prob-
ability, combine to embarrass our navigation in such a manner, as would in
effect destroy it, and confine us to a passive commerce. We should thus 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 an inex-
haustible mine of national wealth, would be stifled and lost; and poverty and
disgrace would overspread a country, which, with wisdom, might make her-
self 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 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 disad-
vantage. 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 dan-
gerous competitors?
This branch of trade ought not to be considered as a partial benefit. All the
navigating states may in different degrees advantageously participate in it;
and under circumstances of a greater extension of mercantile capacity, would
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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 an 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 ofthe means concentered towards its formation and support.
A navy ofthe United States, as it would embrace the resources ofall, is an
object far less remote than a navy of any single state, or partial confederacy,
which would only embrace the resources of a part. It happens, indeed, that
different portions of confederated America, possess each some peculiar ad-
vantage 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 im-
portance, 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, and the con-
duciveness of that species of commerce to the prosperity of a navy, are points
too manifest to require a particular elucidation. They, by a kind of reaction,
mutually beneficial, promote each other.
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, but for exportation to foreign markets.
The veins ofcommerce in every part will be replenished, and will acquire
additional motion and vigour 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 compe-
titions of trade, and from the fluctuations of markets. Particular articles may
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*Recherches philosophiques sur les Americains.
be in great demand at certain periods, and unsaleable 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 operation of the mer-
chant 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 favourable 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 dis-
united, there would still be an intimate intercourse between them, which
would answer the same ends: but this intercourse would be fettered, inter-
rupted, and narrowed, by a multiplicity of causes; which in the course of
these papers have been amply detailed. An unity ofcommercial, as well as
political interests, can only result from an unity of government.
There are other points ofview, 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 newspaper discussion.
I shall briefly observe, that our situation invites, and our interests prompt
us, to aim at an ascendant in the system of American affairs. The world may
politically, as well as geographically, be divided into four parts, each having
a distinct set of interests. Unhappily for the other three, Europe, by her arms
and by her negotiations, by force and by fraud, has, in different degrees, ex-
tended her dominion over them all. Africa, Asia, and America, have succes-
sively felt her domination. The superiority she has long maintained, has
tempted her to plume herselfas the mistress ofthe world, and to consider
the rest of mankind as created for her benefit. Men, admired as profound
philosophers, have, in direct terms, attributed to her inhabitants a physical
superiority; and have gravely asserted, that all animals, and with them the
human species, degenerate in America; that even dogs cease to bark, after
having breathed a while in our atmosphere.* Facts have too long supported
these arrogant pretensions ofthe European: it belongs to us to vindicate
the honor of the human race, and to teach that assuming brother modera-
tion. Union will enable us to do it. Disunion will add another victim to his
triumphs. Let Americans disdain to be the instruments ofEuropean great-
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ness! 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 con-
nexion between the old and the new world!
publius
No. 12
by Alexander Hamilton
The Utility of the Union in respect to Revenue
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.
A prosperous commerce is now perceived and acknowledged, by all en-
lightened 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
ofhuman avarice and enterprise, it serves to vivify and invigorate all the
channels of industry, and to make them flow with greater activity and copi-
ousness. The assiduous merchant, the laborious husbandman, the active
mechanic, and the industrious manufacturer . . . all orders of men, look for-
ward 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
rivalships that once subsisted between them, and has proved, to the entire
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 cultivators of land;
which is the most powerful instrument in increasing the quantity of money
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in a state . . . could that, in fine, which is the faithful handmaid of labour and
industry, in every shape, fail to augment the value of 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 ad-
versary; and it is one, among a multitude ofproofs, how apt a spirit ofill
informed jealousy, or of too great abstraction and refinement, is to lead men
astray from the plainest paths 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 sup-
plies 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 succours of other nations, for the preservation
of his essential interests; and is unable, upon the strength of his own re-
sources, 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 purposes 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 con-
siderable sums by direct taxation. Tax laws have in vain been multiplied;
new methods to enforce the collection have in vain been tried; the public ex-
pectation 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, in-
cident to a languid and mutilated state of trade, has hitherto defeated every
experiment for extensive collections, and has at length taught the different
legistatures the folly of attempting them.
No person, acquainted with what happens in other countries, will be
su[r]prised at this circumstance. In so opulent a nation as that ofBritain,
where direct taxes, from superior wealth, must be much more tolerable, and,
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from the vigour of the government, much more practicable, than in Amer-
ica, 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 con-
fined within a narrow compass. The genius of the people will illy 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 unwel-
come 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 the 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 con-
tribute to render 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 gov-
ernment to increase the rate, without prejudice to trade.
The relative situation of these states; the number of rivers with which they
are intersected, and of bays that wash their shores; the facility of communi-
cation in every direction; the affinity of language and manners; the familiar
habits of intercourse; all these are circumstances that would conspire to ren-
der an illicit trade between them a matter of little difficulty; and would en-
sure frequent evasions of the commercial regulations of each other. The sepa-
rate states, or confederacies, would be driven 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 rigor-
ous 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 em-
ployed to secure her fiscal regulations against the inroads of the dealers in
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contraband. Mr. Neckar computes the number of these patrols at upwards of
twenty thousand. This proves the immense difficulty in preventing that
species of traffic, where there is an inland communication, and shows, in a
strong light, the disadvantages, with which the collection of duties in this
country would be incumbered, if by disunion the states should be placed in a
ituation with respect to each other, resembling that ofFrance with respect to
her neighbours. The arbitrary and vexatious powers with which the patrols
are necessarily armed, would be intolerable in a free country.
If, on the contrary, there he 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 coun-
tries, laden with valuable cargoes, would rarely choose to expose themselves
to the complicated and critical perils, which would attend attempts to unlade
prior to their coming into port. They would have to dread both the dangers
of the coast, and of detection, as well after, as before their arrival at the places
of their final destination. An ordinary degree of vigilance, would be compe-
tent to the prevention of any material infractions upon the rights of the reve-
nue. A few armed vessels, judiciously stationed and employed, might, at small
expense, be made useful sentinels of the laws. And the government, having
the same interest to provide against violations every where, the co-operation
of its measures in each state, would have a powerful tendency to render them
effectual. Here also we should preserve, by union, an advantage which nature
holds out to us, and which would be relinquished by separation. The United
States lie at a great distance from Europe, and at a considerable distance from
all other places, with which they would have extensive connexions of foreign
trade. The passage from them to us in a few hours, or in a single night, as be-
tween the coasts of France and Britain, and of other neighbouring nations,
would be impracticable. This is a prodigious security against a direct contra-
band 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 an adjoining 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 fur-
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ther, than would be practicable to the states separately, or to any partial con-
federacies: hitherto I believe it may safely be asserted, that these duties have
not upon an average exceeded in any state three per cent. In France they are
estimated at about fifteen per cent. and in Britain the proportion is still
greater. 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. According to the ratio of importation into this state, the whole
quantity imported into the United States may, at a low computation, be esti-
mated at four millions of gallons; which, at a shilling per gallon, would pro-
duce two hundred thousand pounds. That article would well bear this rate of
duty; and if it should tend to diminish the consumption of it, such an effect
would be equally favourable to the agriculture, to the economy, to the morals,
and to the health of society. There is, perhaps, nothing so much a subject of
national extravagance, as this very article.
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 rev-
enue. 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 feel-
ings 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 before remarked, from the diffi-
culty of 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 neces-
sities of the state, nevertheless, must be satisfied in some mode, the defect of
other resources must throw the principal weight of the public burthens on
the possessors of land. And as, on the other hand, the wants of the govern-
ment can never obtain an adequate supply, unless all the sources of revenue
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are open to its demands, the finances of the community, under such embar-
rassments, cannot be put into a situation consistent with its respectability or
its security. Thus we shall not even have the consolations of a full treasury, to
atone for the oppression of that valuable class of 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
by Alexander Hamilton
The same Subject continued, with a view to Economy
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 be united under one government, there will be but
one national civil list to support: if they are divided into several confedera-
cies, there will be as many different national civil lists to be provided for; and
each of them, as to the principal departments, co-extensive 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 extrava-
gant, 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, an-
other of the four middle, and a third of the five southern states. There is little
probability that there would be a great number. According to this distribu-
tion, 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 pro-
posed by the convention. When the dimensions of a state attain to a certain
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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, con-
tains 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 conjecture, more
probable than that which presents us with three confederacies, as the alter-
native to a general union. If we attend carefully to geographical and com-
mercial considerations, in conjunction with the habits and prejudices of the
different states, we shall be led to conclude, that, in case of disunion, they will
most naturally league themselves under two governments. The four eastern
states, from all the causes that form the links of national sympathy and con-
nexion, 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 obvious reasons, that would facili-
tate her accession to it. New Jersey is too small a state to think ofbeing a fron-
tier, 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 com-
merce, 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 pur-
chasers, of their commodities. Pennsylvania may not choose to confound her
interests in a connexion so adverse to her policy. As she must, at all events,
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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 obvi-
ating that objection to the proposed plan, which is founded on the principle
of expense; an objection however, which, when we come to take a nearer view
of it, will appear in every light to stand on mistaken ground.
If, in addition to the consideration of a plurality of civil lists, we take into
view the number of persons who must necessarily be employed to guard the
inland communication, between the different confederacies, against illicit
trade, and who in time will infallibly spring up out of the necessities of rev-
enue; 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
by James Madison
An Objection drawn from the Extent of Country, Answered
We have seen the necessity ofthe 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 mili-
tary establishments which have subverted the liberties of the old world; and
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as the proper antidote for the diseases of faction, which have proved fatal to
other popular governments, and of which alarming symptoms have been be-
trayed 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 coun-
try which the union embraces. A few observations, on this subject, will be
the more proper, as it is perceived, that the adversaries of the new constitu-
tion are availing themselves of a prevailing prejudice, with regard to the prac-
ticable sphere of republican administration, in order to supply, by imaginary
difficulties, the want of those solid objections, which they endeavour 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; and applying to the former, reasonings drawn from the
nature of the latter. The true distinction between these forms, was also ad-
verted 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 admin-
ister it by their representatives and agents. A democracy, consequently, must
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 endeavoured to heighten the advantages, or
palliate the evils, of those forms, by placing in comparison with them, 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, obser-
vations 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 mod-
ern Europe, to which we owe the great principle of representation, no ex-
ample is seen of a government wholly popular, and founded, at the same
time, wholly on that principle. IfEurope has the merit of discovering this
great mechanical power in government, by the simple agency of which, the
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will ofthe largest political body may be concentered, and its force directed
to any object, which the public good requires; America can claim the merit
of making the discovery the basis of unmixed and extensive republics. It is
only to be lamented, that any ofher citizens should wish to deprive her of
the additional merit of displaying its full efficacy in the establishment of the
comprehensive system now under her consideration.
As the natural limit of a democracy, is that distance from the central point,
which will just permit the most remote citizens to assemble as often as their
public functions demand, and will include no greater number than can join
in those functions: so the natural limit of a republic, is that distance from the
centre, which will barely allow the representatives of the people 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 atten-
dance, than those from the states in the neighbourhood 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 lati-
tude. 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 sixty-four miles and
an half. Taking the mean for the distance, the amount will be eight hundred
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, rep-
resenting the whole empire, is continually assembled; or than Poland before
the late dismemberment, where another national diet was the depository of
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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 ex-
tremity ofthe island, have as far to travel to the national council, as will be
required of those of the most remote parts of the union.
Favourable as this view of the subject may be, some observations remain,
which will place it in a light still more satisfactory.
In the first place, it is to be remembered, that the general government is
not to be charged with the whole power of making and administering laws:
its jurisdiction is limited to certain enumerated objects, which concern all the
members of the republic, but which are not to be attained by the separate
provisions of any. The subordinate governments, which can extend their care
to all those other objects, which can be separately provided for, will retain
their due authority and activity. Were it proposed by the plan of the conven-
tion, 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 com-
pelled, 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 fed-
eral 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 neighbourhoods, 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 north western 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 daily facilitated by new improvements. Roads will every where
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 Thir-
teen 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.
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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 na-
tions, 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 north-eastern borders, to send their representa-
tives 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 neighbourhood of con-
tinual 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 scenes
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 chords 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, re-
spectable, 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 theo-
ries of the wildest projectors; that it rashly attempts what it is impossible to
accomplish. No, my countrymen, shut your ears against this unhallowed lan-
guage. 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 oftheir becoming aliens, rivals, enemies. And
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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 be-
cause it may comprise what is new? Is it not the glory of the people of Amer-
ica, 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 over-rule the suggestions of their own good sense,
the knowledge of their own situation, and the lessons of their own experi-
ence? 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 favour of private rights and public happiness. Had no
important step been taken by the leaders of the revolution, for which a prece-
dent 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 labouring 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 per-
petuate. 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.
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68
No. 15
by Alexander Hamilton
Concerning the Defects of the Present Confederation,
in Relation to the Principle of Legislation for the
States in their Collective Capacities
In the course of the preceding papers, I have endeavoured, 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 in-
tended to be inculcated will receive further confirmation from facts and ar-
guments 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 recol-
lect, 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 to your progress, in
as compendious a manner as it can be done, without sacrificing utility to
despatch.
In pursuance ofthe 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 ofreasoning or proofto
illustrate a position, which is neither controverted nor doubted; to which the
understandings and feelings of all classes of men assent; and which in sub-
stance is admitted by the opponents as well as by the friends of the new
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*I mean for the union.
constitution? It must in truth be acknowledged, that however these may
differ in other respects, they in general appear to harmonize in the opinion,
that there are material imperfections in our national system, and that some-
thing is necessary to be done to rescue us from impending anarchy. The facts
that support this opinion, are no longer objects of speculation. They have
forced themselves upon the sensibility of the people at large, and have at
length extorted from those, whose mistaken policy has had the principal
share in precipitating the extremity at which we are arrived, a reluctant con-
fession of the reality of many of those defects in the scheme of our federal
government, which have been long pointed out and regretted by the intelli-
gent 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 people, 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 pos-
session of a foreign power, which, by express stipulations, ought long since to
have been surrendered? These are still retained, to the prejudice of our inter-
ests not less than of our rights. Are we in a condition to resent, or to repel the
aggression? We have neither troops, nor treasury, nor government.* Are we
even in a condition to 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 ofdeclension. 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 unnatu-
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ral decrease in the value ofland, a symptom ofnational distress? The price
ofimproved land, in most parts ofthe 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 ofprivate 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 a scarcity of money. To shorten an enumeration of par-
ticulars which can afford neither pleasure nor instruction, it may in general
be demanded, what indication is there of national disorder, poverty, and in-
significance, that could befal 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 counsels, 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 re-
sisted, 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 de-
stroyed 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 author-
ity, 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
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partial imperfections, but from fundamental errors in the structure of the
building, which cannot be amended, otherwise than by an alteration in the
very elements and main pillars of the fabric.
The great and radical vice, in the construction of the existing confedera-
tion, is in the principle of legislation for states or governments, in
their corporate or collective capacities, and as contradistinguished
from the individuals of whom 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 have 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 conse-
quence of this is, that, though in theory, their resolutions concerning those
objects, are laws, constitutionally binding on the members of the union; yet,
in practice, they are mere recommendations, which the states observe or dis-
regard 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 a 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 na-
tions, subject to the usual vicissitudes of peace and war; of observance and
non-observance, as the interests or passions of the contracting powers dic-
tate. 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 estab-
lishing the equilibrium of power, and the peace of that part of the world, all
the resources of negotiation were exhausted, and triple and quadruple alli-
ances were formed; but they were scarcely formed before they were broken,
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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.
Ifthe 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 ofbeing, at least, consistent and practi-
cable. 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 alternately friends and enemies of each other, as our mutual
jealousies and rivalships, nourished by the intrigues of foreign nations,
should prescribe to us.
But ifwe are unwilling to be placed in this perilous situation; ifwe still
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 disobedi-
ence, 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 ofnecessity be employed against
bodies politic, or communities or states. It is evident, that there is no process
of a court by which their observance of the laws can, in the last resort, be en-
forced. 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 ofthe communities that compose it, every breach ofthe laws must
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involve a state of war, and military execution must become the only instru-
ment 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, experi-
ence. It at all times betrayed an ignorance of the true springs by which human
conduct is actuated, and belied the original inducements to the establish-
ment 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, with-
out 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 infer-
ence is founded upon obvious reasons. Regard to reputation, has a less active
influence, when the infamy of a bad action is to be divided among a number,
than when it is to fall singly upon one. A spirit of faction, which is apt to
mingle its poison in the deliberations of all bodies of men, will often hurry
the persons, of whom they are composed, into improprieties and excesses,
for which they would blush in a private capacity.
In addition to all this, there is, in the nature of sovereign power, an impa-
tience of control, which 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 num-
ber oflesser sovereignties, there will be found a kind of eccentric tendency
in the subordinate or inferior orbs, by the operation of which there will be a
perpetual effort in each to fly off from the common centre. This tendency is
not difficult to be accounted for. It has its origin in the love of power. Power
controled or abridged is almost always the rival and enemy of that power by
which it is controled or abridged. This simple proposition will teach us how
little reason there is to expect, that the persons entrusted with the adminis-
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tration of the affairs of the particular members of a confederacy, will at all
times be ready, with perfect good humour, and an unbiassed regard to the
public weal, to execute the resolutions or decrees of the general authority.
The reverse of this results from the constitution of man.
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 favour
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 al-
ways fluctuate on the discretion of the ill-informed and prejudiced opinion
of every part. Those who have been conversant in the proceedings of popu-
lar assemblies; who have seen how difficult it often is, when there is no exte-
rior pressure of circumstances, to bring them to harmonious resolutions on
important points, will readily conceive how impossible it must be to induce
a number of such assemblies, deliberating at a distance from each other, at
different times, and under different impressions, long to co-operate in the
same views and pursuits.
In our case, the concurrence ofthirteen distinct sovereign wills is requi-
site 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 delinquen-
cies 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 gov-
ernment. Things did not come to this desperate extremity at once. The causes
which have been specified, produced at first only unequal and dispropor-
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tionate degrees of compliance with the requisitions of the union. The greater
deficiencies of some states furnished the pretext of example, and the tempta-
tion ofinterest to the complying, or at 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 burthen? 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
by Alexander Hamilton
The same Subject continued, in relation to the same Principles
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 gov-
ernments 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 de-
served, and have most liberally received, the applauding suffrages of political
writers.
This exceptionable principle may, as truly as emphatically, be styled the
parent of anarchy: it has been seen that delinquencies in the members of the
union are its natural and necessary offspring; and that whenever they hap-
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pen, 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 different parts of the confederacy, concern-
ing 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 situa-
tion 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 neigh-
bours, to win over some of them as associates to its cause. Specious argu-
ments of danger to the general liberty could easily be contrived; plausible ex-
cuses 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 delin-
quencies 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 offoreign powers, who would sel-
dom 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 sugges-
tions 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 submis-
sion. The first war of this kind would probably terminate in a dissolution of
the union.
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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 insuper-
able 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 to the majority that happened to prevail in
the national council, for the exercise of factious views, of partiality, and of
oppression.
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 instrumen-
tality of a large army, continually on foot to execute the ordinary requisitions
or decrees ofthe government. And yet this is the plain alternative involved
by those who wish to deny it the power of extending its operations to indi-
viduals. Such a scheme, ifpracticable at all, would instantly degenerate into
a military despotism; but it will be found in every light impracticable. The
resources of the union would not be equal to the maintenance of an army
considerable enough to confine the larger states within the limits of their
duty; nor would the means ever be furnished of forming such an army in the
first instance. Whoever considers the populousness and strength of several of
these states singly at the present juncture, and looks forward to what they will
become, even at the distance ofhalf 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
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by a coercion applicable to them in the same capacities. A project of this kind
is little less romantic than the monster-taming spirit, attributed to the fabu-
lous heroes and demi-gods of antiquity.
Even in those confederacies, which have been composed of members
smaller than many of our counties, the principle of legislation for sovereign
states, supported by military coercion, has never been found effectual. It has
rarely been attempted to be employed, but against the weaker members; and
in most instances attempts to coerce the refractory and disobedient, have
been the signals of bloody wars; in which one half of the confederacy has dis-
played its banners against the other.
The result of these observations to an intelligent mind must be clearly this,
that if it be possible at any rate to construct a federal government capable of
regulating the common concerns, and preserving the general tranquillity, it
must be founded, as to the objects committed to its care, upon the reverse of
the principle contended for by the opponents of the proposed constitution.
It must carry its agency to the persons of the citizens. It must stand in need
of no intermediate legislations; but must itself be empowered to employ the
arm of the ordinary magistrate to execute its own resolutions. The majesty of
the national authority must be manifested through the medium of the courts
of justice. The government of the union, like that of each state, must be able
to address itself immediately to the hopes and fears of individuals; and to at-
tract 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 entrusted,
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 neces-
sary 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 ofcourse not to excite any alarm in the people for the safety ofthe
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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 ifthe execution ofthe laws ofthe national government should not
require the intervention ofthe state legislatures; ifthey were to pass into
immediate operation upon the citizens themselves, the particular govern-
ments could not interrupt their progress without an open and violent exer-
tion of an unconstitutional power. No omission, 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 legisla-
ture, 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 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 humours, 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 cer-
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tain conjunctures, spread a conflagration through a whole nation, or through
a very large proportion of it, proceeding either from weighty causes of dis-
content, given by the government, or from the contagion of some violent
popular paroxism, they do not fall within any ordinary rules of calculation.
When they happen, they commonly amount to revolutions, and dismember-
ments 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 fore-
sight or precaution; and it would be idle to object to a government, because
it could not perform impossibilities.
publius
No. 17
by Alexander Hamilton
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
An objection, of a nature different from that which has been stated and an-
swered in my last address, may, perhaps, be urged against the principle ofleg-
islation 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 dis-
cover what temptation the persons entrusted 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, ap-
pears 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;
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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 improb-
able, that there should exist a disposition in the federal councils, to usurp the
powers with which they are connected; because the attempt to exercise them,
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 splendour, of the national government.
But let it be admitted, for argument sake, that mere wantonness, and lust
of domination, would be sufficient to beget that disposition; still it may be
safely affirmed, that the sense of the constituent body of the national repre-
sentatives, or, in other words, of the people of the several states, would con-
trol the indulgence of so extravagant an appetite. It will always be far more
easy for the state governments to encroach upon the national authorities,
than for the national government to encroach upon the state authorities. The
proof of this proposition turns upon the greater degree of influence which
the state governments, if they administer their affairs with uprightness and
prudence, will generally possess over the people; a circumstance which at the
same time teaches us, that there is an inherent and intrinsic weakness in all
federal constitutions; and that too much pains cannot be taken in their orga-
nization, to give them all the force which is compatible with the principles of
liberty.
The superiority of influence in favour of the particular governments,
would result partly from the diffusive construction of the national govern-
ment; 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 neighbour-
hood, to his neighbourhood than to the community at large, the people of
each state would be apt to feel a stronger bias towards their local govern-
ments, than towards the government of the union, unless the force of that
principle should be destroyed by a much better administration of the latter.
This strong propensity of the human heart, would find powerful auxil-
iaries in the objects of state regulation.
The variety of more minute interests, which will necessarily fall under the
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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 state
governments, which alone suffices to place the matter in a clear and satisfac-
tory 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 ofpopular obedience and attachment. It is this, 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 per-
sonal interests, and familiar concerns, to which the sensibility of individuals
is more immediately awake; contributes, more than any other circumstance,
to impress upon the minds of the people affection, esteem, and reverence to-
wards the government. This great cement of society, which will diffuse itself
almost wholly through the channels ofthe particular governments, inde-
pendent of all other causes of influence, would ensure them so decided an
empire over their respective citizens, as to render them at all times a complete
counterpoise, and not unfrequently dangerous rivals to the power of the
union.
The operations of the national government, on the other hand, falling less
immediately under the observation of the mass of the citizens, the benefits
derived from it will chiefly be perceived, and attended to by speculative men.
Relating to more general interests, they will be less apt to come home to the
feelings of the people; and, in proportion, less likely to inspire a habitual
sense of obligation, and an active sentiment of attachment.
The reasoning on this head has been abundantly exemplified by the ex-
perience 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, confedera-
cies, yet they partook ofthe nature ofthat species ofassociation. 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
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vassal was a kind of sovereign within his particular demesnes. The conse-
quences of this situation were a continual opposition to the 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 oftheir immediate lords. This period ofEuropean affairs is
emphatically styled by historians, the times of feudal anarchy.
When the sovereign happened to be a man of vigorous and warlike tem-
per and of superior abilities, he would acquire a personal weight and influ-
ence, 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 com-
mon people, were dreaded and detested by both; till mutual danger and
mutual interest effected an 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 be-
tween them and the prince must almost always have ended in their favour,
and in the abridgment or subversion of the royal authority.
This is not an assertion founded merely in speculation or conjecture.
Among other illustrations ofits truth which might be cited, Scotland will
furnish a cogent example. The spirit of clauship which was at an early day
introduced into that kingdom, uniting the nobles and their dependants by
ties equivalent to those of kindred, rendered the aristocracy a constant over-
match for the power of the monarch, till the incorporation with England sub-
dued its fierce and ungovernable spirit, and reduced it within those rules of
subordination, which a more rational and a 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 favour, 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 op-
pose all encroachments of the national government. It will be well if they are
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*The subject of this and the two following numbers happened to be taken up by both
Mr. H. and Mr. M. What had been prepared by Mr. H. who had entered more briefly into
the subject, was left with Mr. M. on its appearing that the latter was engaged in it, with
larger materials, and with a view to a more precise delineation; and from the pen of the
latter, the several papers went to the Press.
[The above note from the pen of Mr. Madison was written on the margin of the leaf,
commencing with the present number, in the copy of the Federalist loaned by him to the
publisher.]
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 depositories, 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 govern-
ments, 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 en-
suing papers.
publius
No. 18*
by James Madison
The Subject continued, with further Examples
Among the confederacies of antiquity, the most considerable was that of the
Grecian republics, associated under the Amphyctionic 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 au-
thority 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
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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 Amphyctions were the guardians of religion, and of the im-
mense riches belonging to the temple ofDelphos, 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 suffi-
cient for all general purposes. In several material instances, they exceed the
powers enumerated in the articles ofconfederation. The Amphyctions 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 ap-
pointed 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 Lacedemonians next governed it twenty-nine years. At a
subsequent period, after the battle of Leuctra, the Thebans had their turn of
domination.
It happened but too often, according to Plutarch, that the deputies of the
strongest cities, awed and corrupted those of the weaker; and that judgment
went in favour of the most powerful party.
Even in the midst ofdefensive 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 inter-
vals of foreign war, were filled up by domestic vicissitudes, convulsions, and
carnage.
After the conclusion of the war with Xerxes, it appears that the Lacede-
monians required that a number ofthe cities should be turned out ofthe
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confederacy for the unfaithful part they had acted. The Athenians, finding
that the Lacedemonians would lose fewer partisans by such a measure than
themselves, and would become masters of the public deliberations, vigor-
ously opposed and defeated the attempt. This piece of history proves at once
the inefficiency of the union; the ambition and jealousy of its most powerful
members; and the dependent and degraded condition of the rest. The smaller
members, though entitled by the theory of their system, to revolve in equal
pride and majesty around the common centre, had become in fact satellites
of the orbs of primary magnitude.
Had the Greeks, says the abbe Milot, been as wise as they were courageous,
they would have been admonished by experience of the necessity of a closer
union, and would have availed themselves of the peace which followed their
success against the Persian arms, to establish such a 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 mischiefthan they had suffered from Xerxes. Their
mutual jealousies, fears, hatreds, and injuries, ended in the celebrated Pelo-
ponnesian 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 dis-
sentions; 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 Amphyctionic 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 Am-
phyctions, 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 in-
fluence and votes, gained admission into the Amphyctionic 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 in-
teresting establishment was founded. Had Greece, says a judicious observer
on her fate, been united by a stricter confederation, and persevered in her
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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 re-
publics, 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; ofsending and receiving ambassadors; ofentering into treaties and
alliances; of appointing a chief magistrate or pretor, 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 deliberation, when assembled. According to the
primitive constitution, there were two pretors associated in the administra-
tion; 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 pro-
ceeded 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 Lacedemon was brought into the league by Philopoemen,
it was attended with an abolition ofthe institutions and laws of Lycurgus,
and an adoption of those of the Achaeans. The Amphyctionic 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 sci-
ence 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 infi-
nitely more of moderation and justice in the administration of its govern-
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ment, 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 govern-
ment, which was so tempestuous elsewhere, caused no disorders in the mem-
bers ofthe 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 cer-
tain degree agitate the particular cities; much less, that a due subordination
and harmony reigned in the general system. The contrary is sufficiently dis-
played in the vicissitudes and fate of the republic.
Whilst the Amphyctionic 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 ofPhilip and Alexander. Under the successors of
these princes, however, a different policy prevailed. The arts of division were
practised among the Achaeans; each city was seduced into a separate interest;
the union was dissolved. Some of the cities fell under the tyranny of Mace-
donian garrisons: others under that of usurpers springing out of their own
confusions. Shame and oppression ere long awakened their love of liberty. A
few cities re-united. 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
dissentions 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 enter-
prise. The dread ofthe 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
neighbours, the Achaeans; and who, as an enemy to Macedon, had interest
enough with the Egyptian and Syrian princes, to effect a breach of their en-
gagements with the league. The Achaeans were now reduced to the dilemma
of submitting to Cleomenes, or of supplicating the aid of Macedon, its for-
mer oppressor. The latter expedient was adopted. The contest of the Greeks
always afforded a pleasing opportunity to that powerful neighbour, of inter-
meddling in their affairs. A Macedonian army quickly appeared: Cleomenes
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*This was but another name more specious for the independence of the members
on the federal head.
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 dissentions, and by the revolt of
Messene, one of its members, being joined by the Etolians and Athenians,
erected the standard of opposition. Finding themselves, though thus sup-
ported, unequal to the undertaking, they once more had recourse to the dan-
gerous expedient of introducing the succour 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. Dissentions broke out
among its members. These the Romans fostered. Callicrates, and other pop-
ular leaders, became mercenary instruments for inveigling their country-
men. The more effectually to nourish discord and disorder, the Romans
had, to the astonishment of those who confided in their sincerity, already
proclaimed universal liberty* throughout Greece. With the same insidious
views, they now seduced the members from the league, by representing to
their pride, the violation it committed on their sovereignty. By these arts, this
union, the last hope of Greece . . . the last hope of ancient liberty, was torn
into pieces; and such imbecility and distraction introduced, that the arms of
Rome found little difficulty in completing the ruin which their arts had com-
menced. The Achaeans were cut to pieces; and Achaia loaded with chains,
under which it is groaning at this hour.
I have thought it not superfluous to give the outlines of this important
portion of history; both because it teaches more than one lesson; and be-
cause, as a supplement to the outlines of the Achaean constitution, it em-
phatically illustrates the tendency of federal bodies, rather to anarchy among
the members, than to tyranny in the head.
publius
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No. 19
by James Madison
The Subject continued, with further Examples
The examples of ancient confederacies, cited in my last paper, have not ex-
hausted the source ofexperimental instruction on this subject. There are
existing institutions, founded on a similar principle, which merit particular
consideration. The first which presents itself is the Germanic body.
In the early ages of christianity, Germany was occupied by seven distinct
nations, who had no common chief. The Franks, one of the number, having
conquered the Gauls, established the kingdom which has taken its name
from them. In the ninth century, Charlemagne, its warlike monarch, carried
his victorious arms in every direction; and Germany became a part ofhis
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 be-
come 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 in-
sufficient to restrain such powerful dependants; or to preserve the unity and
tranquillity of the empire. The most furious private wars, accompanied with
every species of calamity, were carried on between the different princes and
states. The imperial authority, unable to maintain the public order, declined
by degrees, till it was almost extinct in the anarchy, which agitated the long
interval between the death of the last emperor of the Suabian, and the acces-
sion 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
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of a confederacy, has grown the federal system, which constitutes the Ger-
manic 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
aulic council, two judiciary tribunals having supreme jurisdiction in contro-
versies which concern the empire, or which happen among its members.
The diet possesses the general power oflegislating 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 alter-
ing the value of money; from doing injustice to one another; or from af-
fording assistance or retreat to disturbers of the public peace. And the ban is
denounced against such as shall violate any of these restrictions. The mem-
bers of the diet, as such, are subject in all cases to be judged by the emperor
and diet, and in their private capacities by the aulic council and imperial
chamber.
The prerogatives of the emperor are numerous. The most 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 ofsovereigns; that the diet is
a representation of sovereigns; and that the laws are addressed to sovereigns;
render the empire a nerveless body, incapable of regulating its own members,
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insecure against external dangers, and agitated with unceasing fermentations
in its own bowels.
The history ofGermany, is a history ofwars between the emperor and
the princes and states; ofwars 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 disre-
garded, 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 over-
match 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 ofWestphalia, 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 oppo-
site 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 neces-
sity 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, ofsovereign bodies, that
before the diet can settle the arrangements, the enemy are in the field; and be-
fore 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 preju-
dices, 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 delin-
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*Pfeffel, Nouvel abreg. chronol. de l’hist. etc. d’Allemagne, says, the pretext was to in-
demnify himself for the expense of the expedition.
quent and contumacious members. This experiment has only served to dem-
onstrate more fully, the radical vice of the constitution. Each circle is the
miniature picture ofthe deformities ofthis political monster. They either
fail to execute their commissions, or they do it with all the devastation and
carnage ofcivil war. Sometimes whole circles are defaulters; and then they
increase the mischief which they were instituted to remedy.
We may form some judgment ofthis scheme ofmilitary 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 occasion, out-
rages 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 Ba-
varia, 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;* he took possession of it in
his own name; disarmed and punished the inhabitants, and re-annexed 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 for-
eign 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 in-
terest 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 na-
ture of sovereignty, and which time continually strengthens, prevents any re-
form whatever, founded on a proper consolidation. Nor is it to be imagined,
if this obstacle could be surmounted, that the neighbouring powers would
suffer a revolution to take place, which would give to the empire the force and
pre-eminence to which it is entitled. Foreign nations have long considered
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themselves as interested in the changes made by events in this constitution;
and have, on various occasions, betrayed their policy of perpetuating its an-
archy 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 neighbours; who have lately had the mercy to disbur-
den it of one third of its people and territories.
The connexion among the Swiss cantons, scarcely amounts to a confed-
eracy; though it is sometimes cited as an instance of the stability of such
institutions.
They have no common treasury; no common troops even in war; no
common coin; no common judicatory, nor any other common mark of
sovereignty.
They are kept together by the peculiarity of their topographical position;
by their individual weakness and insignificancy; by the fear of powerful
neighbours, 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 ex-
pressly 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 defini-
tive 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 medi-
ator in disputes between the cantons; and to employ force, if necessary,
against the contumacious party.
So far as the peculiarity of their case will admit of comparison with that of
the United States, it serves to confirm the principle intended to be estab-
lished. Whatever efficacy the union may have had in ordinary cases, it ap-
pears 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
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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 pro-
duced opposite alliances with foreign powers: of Bern, as the head of the
Protestant association, with the United Provinces; and ofLuzerne, as the
head of the Catholic association, with France.
publius
No. 20
by James Madison
The Subject continued, with further Examples
The United Netherlands are a confederacy of republics, or rather of aristoc-
racies, of a very remarkable texture; yet confirming all the lessons derived
from those which we have already reviewed.
The union is composed of seven co-equal and sovereign states, and each
state or province is a composition ofequal 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, con-
sisting usually of about fifty deputies appointed by the provinces. They hold
their seats, some for life, some for six, three, and one years. From two prov-
inces 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
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dependent territories. The provinces are restrained, unless with the general
consent, from entering into foreign treaties; from establishing imposts in-
jurious to others, or charging their neighbours 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 de-
rived from his independent title; from his great patrimonial estates; from his
family connexions 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 am-
bassadors, 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 appoint-
ments from colonels to ensigns, and ofthe governments and posts offorti-
fied towns.
In his marine capacity, he is admiral general, and superintends and di-
rects 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 300,000 florins.
The standing army which he commands consists of about 40,000 men.
Such is the nature of the celebrated Belgic confederacy, as delineated on
parchment. What are the characters which practice has stampt upon it?
Imbecility in the government; discord among the provinces; foreign influ-
ence 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
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countrymen to the house of Austria, kept them from being ruined by the
vices of their constitution.
The union ofUtrecht, says another respectable writer, reposes an author-
ity in the states-general, seemingly sufficient to secure harmony; but the jeal-
ousy 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 exe-
cuted; because the inland provinces, who have little commerce, cannot pay
an equal quota.
In matters of contribution, it is the practice to wa[i]ve 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 reimburse-
ment 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 have been ultimately
to be collected at the point of the bayonet; a thing practicable, though dread-
ful, 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 per-
severing defence.
Foreign ministers, says Sir William Temple, who was himself a foreign
minister, elude matters taken ad referendum, by tampering with the prov-
inces 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 inde-
pendence 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 for-
ward to the dangerous extreme, must depend on the contingencies of the
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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 think-
ing. This spring is the stadtholder.” It is remarked by Sir William Temple,
that “in the intermissions ofthe 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 controled 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 de-
gree 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 adminis-
tered by the federal authority. This also had its adversaries and failed.
This unhappy people seem to be now suffering, from popular convul-
sions, from dissentions among the states, and from the actual invasion of for-
eign 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
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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 sover-
eignty 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 ofthe order and ends ofcivil 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
by Alexander Hamilton
Further defects of the present Constitution
Having in the three last numbers taken a summary review of the principal
circumstances and events, which depict the genius and fate of other confed-
erate governments; I shall now proceed in the enumeration of the most im-
portant of those defects, which have hitherto disappointed our hopes from
the system established among ourselves. To form a safe and satisfactory judg-
ment of the proper remedy, it is absolutely necessary that we should be well
acquainted with the extent and malignity of the disease.
The next most palpable defect of the existing confederation, is the total
want of a sanction to its laws. The United States, as now composed, have
no power to exact obedience, or punish disobedience to their resolutions,
either by pecuniary mulcts, by a suspension or divestiture of privileges, or by
any other constitutional means. 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 com-
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pact 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.” The want ofsuch a right involves,
no doubt, a striking absurdity; but we are reduced to the dilemma, either of
supposing that deficiency, preposterous as it may seem, or ofcontravening
or explaining away a provision, which has been oflate a repeated theme of
the eulogies of those who oppose the new constitution; and the omission 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 politi-
cal world.
The want of a mutual guarantee of the state governments, is another capi-
tal imperfection in the federal plan. There is nothing of this kind declared in
the articles that compose it: and to imply a tacit guarantee from considera-
tions 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
consideration. The want of a guarantee, 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 guarantee, the assistance to be derived from the union, in re-
pelling 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 succour could constitutionally be afforded
by the union to the friends and supporters of the government. The tempes-
tuous 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 ofher late convulsions, ifthe malcontents had
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been headed by a Caesar or by a Cromwell? Who can predict what effect a
despotism, established in Massachusetts, would have upon the liberties of
New Hampshire or Rhode Island; of Connecticut or New York?
The inordinate pride of state importance, has suggested to some minds an
objection to the principle of a guarantee in the federal government, as in-
volving 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 na-
ture 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 guarantee could only operate against
changes to be effected by violence. Towards the prevention of calamities of
this kind, too many checks cannot be provided. The peace of society, and the
stability of government, depend absolutely on the 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 ad-
ministration, in a popular or representative constitution, is, a change of men.
A guarantee by the national authority, would be as much directed 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 al-
ready 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 ascer-
tained. 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 ofRussia or Germany, or even ofFrance; and
if we at the same time compare the total value of the lands, and the aggregate
population of the contracted territory of that republic, with the total value of
the lands, and the aggregate population of the immense regions of either of
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those kingdoms, we shall at once discover, that there is no comparison be-
tween 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 illus-
trated, by a similar process between the counties of the same state. No man
acquainted with the state ofNew York will doubt, that the active wealth of
King’s county bears a much greater proportion to that ofMontgomery, than
it would appear to do, if we should take either the total value of the lands, or
the total numbers of the people, as a criterion.
The wealth of nations depends upon an infinite variety of causes. Situa-
tion, soil, climate, the nature of the productions, the nature of the govern-
ment, 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 even-
tual 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 distributed the public burthens
with so unequal a hand; and which was calculated to impoverish and oppress
the citizens of some states, while those of others would scarcely be conscious
of the small proportion of the weight they were required to sustain. This,
however, is an evil inseparable from the principle of quotas and requisitions.
There is no method of steering clear of this inconvenience, but by author-
izing the national government to raise its own revenues in its own way. Im-
posts, excises, and in general all duties upon articles of consumption, may be
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No. 21
103
compared to a fluid, which will in time find its level with the means of pay-
ing 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 im-
positions. If inequalities should arise in some states from duties on particu-
lar 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 every where. 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 oftaxes on articles ofconsumption, 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 collec-
tion 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 citi-
zens, by taxes ofthis class, and is itselfa natural limitation ofthe 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 lands 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, are considered as having a near relation
to 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
an 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 discre-
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tion of the government are to be found in the nature of the thing, the estab-
lishment 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
by Alexander Hamilton
The same subject continued, and concluded
In addition to the defects of the existing federal system, enumerated in the
last number, there are others of not less importance, which concur in ren-
dering that system altogether unfit for the administration of the affairs of
the union.
The want of a power to regulate commerce, is by all parties allowed to be
of the number. The utility of such a power has been anticipated under the
first head of our inquiries; and for this reason, as well as from the universal
conviction entertained upon the subject, little need be added in this place. It
is indeed evident, on the most superficial view, that there is no object, either
as it respects the interests of trade or finance, that more strongly demands a
federal superintendence. The want of it has already operated as a bar to the
formation of beneficial treaties with foreign powers; and has given occasions
of dissatisfaction between the states. No nation acquainted with the nature of
our political association, would be unwise enough to enter into stipulations
with the United States, conceding on their part privileges of importance,
while they were apprized 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 mar-
kets, without granting us any return, but such as their momentary conve-
nience might suggest. It is not, therefore, to be wondered at, that Mr. Jenkin-
son, in ushering into the house of commons a bill for regulating the
temporary intercourse between the two countries, should preface its intro-
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No. 22
105
*This, as nearly as I can recollect, was the sense ofthis speech on introducing the
last bill.
†Encyclopedia, article Empire.
duction by a declaration, that similar provisions in former bills had been
found to answer every purpose to the commerce of Great Britain, and that
it would be prudent to persist in the plan until it should appear whether the
American government was likely or not to acquire greater consistency.*
Several states have endeavoured, 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 states, has hitherto frustrated every
experiment of the kind; and will continue to do so, as long as the same ob-
stacles to an uniformity of measures continue to exist.
The interfering and unneighbourly 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 ex-
tended till they became not less serious sources of animosity and discord,
than injurious impediments to the intercourse between the different parts
of the confederacy. “The commerce of the German empire† is in continual
trammels, from the multiplicity of the duties which the several princes and
states exact upon the merchandises passing through their territories; by
means ofwhich 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 con-
sidered and treated by the others in no better light than that offoreigners
and aliens.
The power of raising armies, by the most obvious construction of the ar-
ticles 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
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The Federalist
106
outbid each other, till bounties grew to an enormous and insupportable size.
The hope of a still further increase, afforded an inducement to those who
were disposed to serve, to procrastinate their enlistment; and disinclined
them from engaging for any considerable periods. Hence, slow and scanty
levies of men, in the most critical emergencies of our affairs; short enlist-
ments at an unparalleled expense; continual fluctuations in the troops, ruin-
ous to their discipline, and subjecting the public safety frequently to the per-
ilous crisis of a disbanded army. Hence also, those oppressive expedients for
raising men, which were upon several occasions practised, and which noth-
ing but the enthusiasm of liberty would have induced the people to endure.
This method of raising troops is not more unfriendly to economy and
vigour, than it is to an equal distribution ofthe burthen. 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 dis-
tance from danger were, for the most part, as remiss as the others were dili-
gent, 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 ofthe deficiencies in the supplies ofmen. We shall not, however,
see much reason to regret the want ofthis hope, when we consider how
little prospect there is, that the most delinquent states ever will 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 repre-
sentation, 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 that
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 oflogical legerdemain will never counteract the plain
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No. 22
107
*New Hampshire, Rhode Island, New Jersey, Delaware, Georgia, South Carolina, and
Maryland, are a majority ofthe whole number ofthe States, but they do not contain
one third of the people.
†Add New York and Connecticut to the foregoing seven, and they will still be less
than a majority.
suggestions of justice and common sense. It may happen, that this majority
of states is a small minority of the people of America;* and two thirds of the
people of America could not long be persuaded, upon the credit of artificial
distinctions and syllogistic subtleties, to submit their interests to the man-
agement and disposal of one third. The larger states would, after a while, re-
volt 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
ofequality. It is neither rational to expect the first, nor just to require the
last. Considering how peculiarly the safety and welfare of the smaller states
depend on union, they 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 major-
ity of the inhabitants of the union. But this does not obviate the impropriety
of an equal vote, between states of the most unequal dimensions and popu-
lousness: nor is the inference accurate in point of fact; for we can enumerate
nine states, which contain less than a majority of the people;† and it is con-
stitutionally 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 inter-
preted in favour 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 ob-
served, 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
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The Federalist
108
Polish diet, where a single veto 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 government, and to substitute the pleasure, caprice, or artifices of an in-
significant, turbulent, or corrupt junto, to the regular deliberations and de-
cisions 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 conduct-
ing 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 over-
rule that of the greater, and give a tone to the national proceedings. Hence,
tedious delays; continual negotiation and intrigue; contemptible compro-
mises of the public good. And yet, in such a system, it is even fortunate when
such compromises can take place: for, upon some occasions, things will not
admit of accommodation; and then the measures of government must be in-
juriously 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 savour of weakness; sometimes border
upon anarchy.
It is not difficult to discover, that a principle of this kind gives greater
scope to foreign corruption, as well as to domestic faction, than that which
permits the sense of the majority to decide; though the contrary of this has
been presumed. The mistake has proceeded from not attending with due care
to the mischiefs that may be occasioned, by obstructing the progress of gov-
ernment 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
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No. 22
109
produced, by the power of hindering that which it is necessary to do, and of
keeping affairs in the same unfavourable 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 de-
manded peace, and that the interest or ambition of our ally led him to seek
the prosecution of the war, with views that might justify us in making sepa-
rate terms. In such a state of things, this ally of ours would evidently find it
much easier, by his bribes and his intrigues, to tie up the hands of govern-
ment from making peace, where two thirds of all the votes were requisite to
that object, than where a simple majority would suffice. In the first case, he
would have to corrupt a smaller . . . 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 fa-
cility prevent our forming a connexion with her competitor in trade; though
such a connexion should be ever so beneficial to ourselves.
Evils ofthis description ought not to be regarded as imaginary. One of
the weak sides of republics, among their numerous advantages, is, that they
afford too easy an inlet to foreign corruption. An hereditary monarch,
though often disposed to sacrifice his subjects to his ambition, has so great a
personal interest in the government, and in the external glory of the nation,
that it is not easy for a foreign power to give him an equivalent for what
he would sacrifice by treachery to the state. The world has accordingly been
witness to few examples of this species of royal prostitution, though there
have been abundant specimens of every other kind.
In republics, persons elevated from the mass of the community, by the
suffrages of their fellow-citizens, to stations of great pre-eminence and
power, may find compensations for betraying their trust, which to any but
minds actuated 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 exam-
ples of the prevalency of foreign corruption in republican governments. How
much this contributed to the ruin of the ancient commonwealths, has been
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The Federalist
110
already disclosed. It is well known that the deputies of the United Provinces
have, in various instances, been purchased by the emissaries of the neigh-
bouring kingdoms. The earl of Chesterfield, if my memory serves me right,
in a letter to his court, intimates, that his success in an important negotiation,
must depend on his obtaining a major’s commission for one of those depu-
ties. And in Sweden, the rival 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 uncontroled.
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 pro-
duce uniformity in these determinations, they ought to be submitted, in the
last resort, to one supreme tribunal. And this tribunal ought to be insti-
tuted under the same authority which forms the treaties themselves. These
ingredients are both indispensable. Ifthere is in each state a court offinal
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 judica-
tories, all nations have found it necessary to establish one tribunal para-
mount to the rest, possessing a general superintendence, and authorized to
settle and declare in the last resort an uniform rule of civil justice.
This is the more necessary where the frame of the government is so com-
pounded, 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 decision, besides the contradictions to be expected from dif-
ference 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 should happen, there would be reason to apprehend, that the
provisions of the particular laws might be preferred to those of the general
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No. 22
111
laws, from the deference with which men in office naturally look up to 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 these are composed. Is
it possible that foreign nations can either respect or confide in such a gov-
ernment? Is it possible that the people of America will longer consent to trust
their honour, their happiness, their safety, on so precarious a foundation?
In this review of the confederation, I have confined myself to the exhibi-
tion of its most material defects; passing over those imperfections in its de-
tails, by which even a considerable 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 are either free from erroneous pre-
possessions, or can divest themselves of them, 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 as-
sembly may be a proper receptacle of those slender, or rather fettered au-
thorities, 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 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 sup-
plementary 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 augmen-
tations ofits force and energy, as necessity might prompt, we shall finally
accumulate in a single body, all the most important prerogatives of sover-
eignty; and thus entail upon our posterity, one of the most execrable forms
of government that human infatuation ever contrived. Thus we should cre-
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112
ate 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 ofthe 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 ofa right of
legislative repeal. Owing its ratification to the law of a state, it has been con-
tended, 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
by Alexander Hamilton
The necessity of a government, at least equally
energetic with the one proposed
The necessity of a constitution, at least equally energetic with the one pro-
posed, 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 a 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.
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No. 23
113
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 inter-
course, political and commercial, with foreign countries.
The authorities essential to the care of 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 pow-
ers ought to exist without limitation; because it is impossible to foresee or to
define the extent and variety of national exigencies, and the correspondent
extent and variety of the means which may be necessary to satisfy them. The
circumstances that endanger the safety of nations are infinite; and for this
reason, no constitutional shackles can wisely be imposed on the power to
which the care of it is committed. This power ought to be 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 ofthose 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 to discussion;
but the moment it is decided in the affirmative, it will follow, that, that gov-
ernment ought to be clothed with all the powers requisite to the 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 dis-
puted, 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 protec-
tion 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 prin-
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The Federalist
114
ciple appears to have been fully recognized by the framers of it; though they
have not made proper or adequate provision for its exercise. Congress have
an unlimited discretion to make requisitions of men and money; to govern
the army and navy; to direct their operations. As their requisitions are made
constitutionally binding upon the states, who are in fact under the most
solemn obligations to furnish the supplies required of them, the intention
evidently was, that the United States should command whatever resources
were by them judged requisite to the “common defence and general welfare.”
It was presumed, that a sense of their true interests, and a regard to the dic-
tates of good faith, would be found sufficient pledges for the punctual per-
formance of the duty of the members to the federal head.
The experiment has however demonstrated, that this expectation was ill
founded and illusory; and the 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 oflegislating upon the states in their collective ca-
pacities; 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 for-
mation and support of an army and navy, in the customary and ordinary
modes practised in other governments.
If the circumstances of our country are such as to demand a compound,
instead of a simple . . . a confederate, instead of a sole government, the es-
sential point which will remain to be adjusted, will be to discriminate the ob-
jects, as far as it can be done, which shall appertain to the different prov-
inces or departments of power: allowing to each the most ample authority for
fulfilling those which may be 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 adminis-
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No. 23
115
tration of justice between the citizens of the same state, the proper depart-
ment 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 inter-
ests of the nation to hands which are disabled from managing them with
vigour and success.
Who so likely to make suitable provisions for the public defence, as that
body to which the guardianship of the public safety is confided? Which, as
the centre ofinformation, 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 re-
sponsibility implied in the duty assigned to it, will be most sensibly impressed
with the necessity ofproper exactions; and which, by the extension ofits
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 govern-
ment the care of the general defence, and leaving in the state governments the
effective powers, by which it is to be provided for? Is not a want of co-
operation the infallible consequence of such a system? And will not weakness,
disorder, an undue distribution of the burthens 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 achieved?
Every view we may take of the subject, as candid inquirers after truth, will
serve to convince us, that it is both unwise and dangerous to deny the federal
government an unconfined authority, in respect 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 ofwhich renders it unfit to be
intrusted with all the powers which a free people ought to delegate to any
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The Federalist
116
government, would be an unsafe and improper depository 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 reason-
ing upon the subject. And the adversaries of the plan promulgated by the
convention, would have given a better impression of their candour, if they
had confined themselves to showing, that the internal structure of the pro-
posed government was such as to render it unworthy of the confidence of the
people. They ought not to have wandered into inflammatory declamations
and unmeaning cavils, about the extent of the powers. The powers are not
too extensive for the objects of federal administration, or, in other words,
for the management of our national interests; nor can any satisfactory
argument be framed to show that they are chargeable with such an excess.
If it be true, as has been insinuated by some of the writers on the other side,
that the difficulty arises from the nature of the thing, and that the extent of
the country will not permit us to form a government in which such ample
powers can safely be reposed, it would prove that we ought to contract our
views, and resort to the expedient of separate confederacies, which will move
within more practicable spheres. For the absurdity must continually stare us
in the face, of confiding to a government the direction of the most essential
national concerns, without daring to trust it with 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 ofone 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 ex-
perience, is susceptible of. This, at all events, must be evident, that the very
difficulty itself, drawn from the extent of the country, is the strongest argu-
ment in favour of an energetic government; for any other can certainly never
preserve the union of so large an empire. If we embrace, as the standard of
our political creed, the tenets of those who oppose the adoption of the pro-
posed constitution, we cannot fail to verify the gloomy doctrines, which pre-
dict the impracticability of a national system, pervading the entire limits of
the present confederacy.
publius
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117
No. 24
by Alexander Hamilton
The subject continued, with an answer to an
objection concerning standing armies
To the powers proposed to be conferred upon the federal government, in re-
spect to the creation and direction of the national forces, I have met with but
one specific objection; which is, that proper provision has not been made
against the existence of standing armies in time of peace: an objection which
I shall now endeavour 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 ex-
pressed in most of the existing constitutions. The propriety of this remark
will appear, the moment it is recollected that the objection under consid-
eration 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 con-
vention, would be naturally led to one of two conclusions: either that it con-
tained a positive injunction, that standing armies should be kept up in time
of peace; or, that it vested in the executive the whole power of levying
troops, without subjecting his discretion in any shape to the control of the
legislature.
If he came afterwards to peruse the plan itself, he would be surprised to
discover, that neither the one nor the other was the case; that the whole
power of raising armies was lodged in the legislature, not in the executive: that
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The Federalist
118
*This statement of the matter is taken from the printed collections of state consti-
tutions. Pennsylvania and North Carolina are the two which contain the interdiction in
these words: “As standing armies in time of peace are dangerous to liberty, they ought
not to be kept up.” This is, in truth, rather a caution than a prohibition. New
Hampshire, Massachusetts, Delaware and Maryland have, in each oftheir bills ofrights,
a clause to this effect: “Standing armies are dangerous to liberty, and ought not be raised
or kept up without the consent of the legislature;” which is a formal admis-
sion of the authority of the legislature. New York has no bill of rights, and her constitu-
tion says not a word about the matter. No bills ofrights appear annexed to the consti-
tutions of the other states, and their constitutions are equally silent. I am told, however,
that one or two states have bills of rights, which do not appear in this collection; but that
those also recognize the right of the legislative authority in this respect.
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 sup-
posed in favour 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 military establishments
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 colourable 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 ap-
prehension and clamour.
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* 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 imag-
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No. 24
119
ine, while any source of information remained unexplored, that it was noth-
ing more than an experiment upon the public credulity, dictated either by a
deliberate intention to deceive, or by the overflowings of a zeal too intem-
perate 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 confeder-
ation must contain the most explicit provisions against military establish-
ments in time of peace; and a departure from this model in a favourite point,
has occasioned the discontent, which appears to influence these political
champions.
Ifhe should now apply himself to a careful and critical survey of the
articles ofconfederation, his astonishment would not only be increased,
but would acquire a mixture ofindignation, 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 pronouncing these
clamours to be the dishonest artifices of a sinister and unprincipled opposi-
tion 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 super-added a new and powerful guard unknown to any of
them? If, on the contrary, he happened to be a man of calm and dispassion-
ate feelings, he would indulge a sigh for the frailty of human nature, and
would lament, that in a matter so interesting to the happiness ofmillions,
the true merits of the question should be perplexed and obscured by expe-
dients 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 ofan intention to mislead the people by alarming
their passions, rather than to convince them by arguments addressed to their
understandings.
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The Federalist
120
But however little this objection may be countenanced, even by prece-
dents among ourselves, it may be satisfactory to take a nearer view of its in-
trinsic merits. From a close examination, it will appear, that restraints upon
the discretion of the legislature, in respect to military establishments, 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 se-
curity. On one side of us, 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 do-
minion ofSpain. This situation, and the vicinity ofthe 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,
neighbours. Britain and Spain, are among the principal maritime powers of
Europe. A future concert of views between these nations, ought not to be re-
garded 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 connexion. 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 con-
stant necessity for keeping small garrisons on our western frontier. No per-
son can doubt, that these will continue to be indispensable, if it should only
be to guard against the ravages and depredations of the Indians. These gar-
risons must either be furnished by occasional detachments from the militia,
or by permanent corps in the pay of the government. The first is impracti-
cable; and if practicable, would be pernicious. The militia, in times of pro-
found peace, would not long, if at all, submit to be dragged from their occu-
pations and families, to perform that most disagreeable duty. And if they
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could be prevailed upon, or compelled to do it, the increased expense ofa
frequent rotation of service, and the loss of labour, and disconcertion of the
industrious pursuits of individuals, would form conclusive objections to the
scheme. It would be as burthensome and injurious to the public, as ruinous
to private citizens. The latter resource of permanent corps in the pay of gov-
ernment, 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 neighbourhood. If we should not be willing to be exposed, in a naked
and defenceless condition, to their insults or 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 situa-
tion to be at any instant seized by one or the other of two neighbouring 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 endeavour, as soon as possible, to have a navy. To this purpose,
there must be dock yards and arsenals; and, for the defence of these, fortifi-
cations, and probably garrisons. When a nation has become so powerful by
sea, that it can protect its dock yards by its fleets, this supercedes the neces-
sity 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
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122
No. 25
by Alexander Hamilton
The subject continued, with the same view
It may perhaps be urged, that the objects enumerated in the preceding num-
ber ought to be provided by the state governments, under the direction of the
union. But this would be an inversion of the primary principle of our politi-
cal association; as it would in practice transfer the care of the common de-
fence from the federal head to the individual members: a project oppressive
to some states, dangerous to all, and baneful to the confederacy.
The territories ofBritain, Spain, and of the Indian nations in our neigh-
bourhood, do not border on particular states; but encircle the union from
Maine to Georgia. The danger, though in different degrees, is therefore
common. And the means of guarding against it, ought, in like manner, to be
the objects of common councils, and of a common treasury. It happens that
some states, from local situation, are more directly exposed. New York is of
this class. Upon the plan of separate provisions, New York would have to sus-
tain the whole weight of the establishments requisite to her immediate safety,
and to the mediate, or ultimate protection of her neighbours. This would nei-
ther 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 burthen of
competent provisions. The security ofall would thus be subjected to the
parsimony, improvidence, or inability of a part. If, from the resources of
such part becoming more abundant, its provisions should be proportionably
enlarged, the other states would quickly take the alarm at seeing the whole
military force of the union in the hands of two or three of its members; and
those probably amongst the most powerful. They would each choose to have
some counterpoise; and pretences could easily be contrived. In this situa-
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No. 25
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tion, military establishments, nourished by mutual jealousy, would be apt to
swell beyond their natural or proper size; and being at the separate disposal
of the members, they would be engines for the abridgment, or demolition, of
the national 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 be-
tween 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 advan-
tage, the ambition of the members should be stimulated by the separate and
independent possession of military forces, it would afford too strong a temp-
tation, and too great 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 so. For it is a truth which the experi-
ence of all ages has attested, that the people are commonly 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 gov-
ernment 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 views besides those already presented, in which the im-
propriety 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 ofpeace; though we have never been
informed how far it is desired the prohibition should extend: whether to rais-
ing armies, as well as to keeping them up, in a season of tranquillity, or not. If
it be confined to the latter, it will have no precise signification, and it will
be ineffectual for the purpose intended. When armies are once raised, what
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shall be denominated “keeping them up,” contrary to the sense of the con-
stitution? 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 im-
pending 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 ofthe continuance ofthe 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 ap-
prehended danger, might, in the first instance, raise troops, and might after-
wards keep them on foot, as long they supposed the peace or safety of the
community was in any degree of jeopardy. It is easy to perceive, that a dis-
cretion so latitudinary as this, would afford ample room for eluding the force
of the provision.
The utility of a provision of this kind, can only be vindicated on the hy-
pothesis of a probability, at least possibility, of combination between the ex-
ecutive and legislature, 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 prohi-
bition 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
oflate 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
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No. 25
125
contrary to the genuine maxims of a free government. We must expose our
property and liberty to the mercy offoreign 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 at all times be equal to the national defence. This doc-
trine, 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 ofsuch a suggestion. The steady operations ofwar 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
vigour, confirm this position. The American militia, in the course of the late
war, have, by their valour on numerous occasions, erected eternal monu-
ments to their fame; but the bravest of them feel and know, that the liberty
of their country could not have been established by their efforts alone, how-
ever 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 stand-
ing 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 ex-
istence 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 confeder-
ation 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 governments, as well as under those of other nations, which will
sometimes render a military force in time of peace, essential to the security
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The Federalist
126
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 ofa feeble government are likely to be respected, even
by its own constituents. And it teaches us, in addition to the rest, how un-
equal are parchment provisions, to a struggle with public necessity.
It was a fundamental maxim of the Lacedemonian 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
Atheniaus, demanded Lysander, who had before served with success in that
capacity, to command the combined fleets. The Lacedemonians, to gratify
their allies, and yet preserve the semblance of an adherence to their ancient
institutions, had recourse to the flimsy subterfuge of investing Lysander with
the real power of admiral, under the nominal title of vice admiral. This in-
stance is selected from among a multitude that might be cited, to confirm the
truth already advanced and illustrated by domestic examples; which is, that
nations pay little regard to rules and maxims, calculated in their very nature
to run counter to the necessities of society. Wise politicians will be cautious
about fettering the government with restrictions, that cannot be observed;
because they know, that every breach of the fundamental laws, though dic-
tated by necessity, impairs that sacred reverence, which ought to be main-
tained 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
by Alexander Hamilton
The subject continued with the same view
It was a thing hardly to have been 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 gov-
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No. 26
127
ernment with the security of private rights. A failure in this delicate and im-
portant 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 proj-
ect 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 for provid-
ing for the national defence, is one of those refinements, which owe their ori-
gin 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. They wisely judged that
confidence must be placed somewhere; that the necessity of doing it, is im-
plied 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 op-
ponents of the proposed constitution, combat in this respect the general de-
cision 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 extrava-
gant. 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 popu-
lar 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 anar-
chy. And I am much mistaken, if experience has not wrought a deep and
solemn conviction in the public mind, that greater energy of government is
essential to the welfare and prosperity of the community.
It may not be amiss in this place, concisely to remark the origin and
progress of the idea, which aims at the exclusion of military establishments
in time of peace. Though in speculative minds, it may arise from a contem-
plation of the nature and tendency of such institutions, fortified by the events
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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 which 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 favour of liberty, first by the barons, and afterwards by the
people, till the greatest part of its most formidable pretensions became ex-
tinct. 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 tri-
umphant. As incident to the undefined power of making war, an acknowl-
edged prerogative ofthe 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 revo-
lution, to abolish the exercise of so dangerous an authority, it became an ar-
ticle of the bill of rights then framed, that “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 ofliberty was at its highest pitch, no se-
curity against the danger ofstanding armies was thought requisite, beyond
a prohibition oftheir being raised or kept up by the mere authority ofthe
executive magistrate. The patriots, who effected that memorable revolution,
were too temperate, and 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 ofthat power to the judgment ofthe legislature, they had arrived
at the ultimate point of precaution, which was reconcileable 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 ofpopular 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 es-
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No. 26
129
tablishments, are of the number of these instances. The principles which had
taught us to be jealous of the power of an hereditary monarch, were, by an
injudicious excess, extended to the representatives ofthe people in their
popular assemblies. Even in some of the states, where this error was not
adopted, we find unnecessary declarations, that standing armies ought not to
be kept up, in time of peace, without the consent of the legislature. I call them
unnecessary, because the reason which had introduced a similar provision
into the English bill of rights, is not applicable to any of the state constitu-
tions. The power of raising armies at all, under those constitutions, can by no
construction be deemed to reside any where 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 the 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 ex-
pression made use of is rather monitory, 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 exclu-
sion would be unwise and unsafe.
Can it be doubted that such a provision, whenever the situation of public
affairs was understood to require a departure from it, would be interpreted
by the legislature into a mere admonition, and would be made to yield to the
actual 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, be-
tween the provision alluded to, and that which is contained in the new con-
stitution, 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
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The Federalist
130
by being perfectly compatible with a proper provision for the exigencies of
the nation, will have a salutary and powerful operation.
The legislature ofthe United States will be obliged, by this provision,
once at least in every two years, to deliberate upon the propriety ofkeeping
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 con-
stituents. They are not at liberty to vest in the executive department, perma-
nent 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 sup-
port of a military force, will always be a favourable 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 ofthe rights ofthe
citizens, against encroachments from the federal government, will con-
stantly 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 ofa 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 perse-
vered in, and transmitted through all the successive variations in the repre-
sentative 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
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131
be found one man, discerning enough to detect so atrocious a conspiracy,
or bold or honest enough to apprize his constituents oftheir 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 recal all the powers
they have heretofore parted with; 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.
Ifsuch suppositions could even be reasonably made, still the conceal-
ment ofthe design, for any duration, would be impracticable. It would be
announced, by the very circumstance of augmenting the army to so great an
extent, in time of profound peace. What colourable reason could be assigned,
in a country so situated, for such vast augmentations of the military force? It
is impossible that the people could be long deceived; and the destruction of
the project, and of the projectors, would quickly follow the discovery.
It has been said, that the provision which limits the appropriation of
money for the support of an army to the period of two years, would be un-
availing; 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 votes of the legis-
lature. 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 principle of the objection; for this
is levelled against the power of keeping up troops in time of peace. Few per-
sons 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 calami-
ties 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 it is an evil infinitely less likely to attend us in an united, than in a dis-
united 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 con-
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siderable enough to place our liberties in the least jeopardy; especially if
we take into 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 sup-
position would become not only probable, but almost unavoidable.
publius
No. 27
by Alexander Hamilton
The subject continued, with the same view
It has been urged, in different shapes, that a constitution of the kind pro-
posed by the convention, cannot operate without the aid of a military force
to execute its laws. This, however, like most other things that have been al-
leged on that side, rests on mere general assertion, unsupported by any pre-
cise 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 pre-supposition, that the people will be disinclined to the exer-
cise of federal authority, in any matter of an internal nature. Wa[i]ving any
exception that might be taken to the inaccuracy, or inexplicitness, of the dis-
tinction between internal and external, let us inquire what ground there is to
pre-suppose 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 governments, there seems to be no room for the pre-
sumption 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 their obedience
to, a government, will commonly be proportioned to the goodness or bad-
ness 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
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demerits of a constitution. These can only be judged of by general prin-
ciples and maxims.
Various reasons have been suggested, in the course of these papers, to in-
duce a probability, that the general government will be better administered
than the particular governments: the principal of which are, that the exten-
sion 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, who
are select bodies of men, and who 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 comprehensive information, in the national councils;
and that, on account of the extent of the country from which will be drawn
those to whose direction they will be committed, they will be less apt to be
tainted by the spirit of faction, and more out of the reach of those occasional
ill humours, or temporary prejudices and propensities, which, in smaller so-
cieties, frequently contaminate the public deliberations, beget injustice and
oppression towards 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 consider-
able force, will occur, to fortify that probability, when we come to survey,
with a more critical eye, the interior structure ofthe edifice which we are
invited to erect. It will be sufficient here to remark, that until satisfactory rea-
sons 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 con-
temptible to the people, there can be no reasonable foundation for the sup-
position, 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 exe-
cution, than the laws of the particular members.
The hope ofimpunity, is a strong incitement to sedition: the dread of
punishment, a proportionably strong discouragement to it. Will not the gov-
ernment 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 fac-
tion in a state, may easily suppose itself able to contend with the friends to the
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government in that state; but it can hardly be so infatuated, as to imagine it-
self equal to 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 the first place, hazard an observation, which will not be the less
just, because to some it may appear new; which is, that the more the opera-
tions 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 have but a transient in-
fluence 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 in-
ference 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 that it 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 ca-
pacities. It has been shown, that in such a confederacy there can be no sanc-
tion 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
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*The sophistry which has been employed, to show that this will tend to the destruc-
tion of the state governments will, in its proper place, be fully detected.
apprehension, all distinction between the sources from which they might
proceed; and will give the federal government the same advantage for secur-
ing 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 ofthe whole union. It merits particular atten-
tion 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 judi-
cial, in each state, will be bound by the sanctity of an oath. Thus the legisla-
tures, courts, and magistrates, of the respective members, will be incorpo-
rated into the operations of the national government, as far as its just and
constitutional authority extends; and will be rendered auxiliary to the enforce-
ment of its laws.* Any man, who will pursue, by his own reflections, the con-
sequences of this situation, will perceive, that if its powers are administered
with a common share of prudence, there is good ground to calculate upon a
regular and peaceable execution of the laws of the union. If we will arbitrar-
ily suppose the contrary, we may deduce any inferences we please from the
supposition; for it is certainly possible, by an injudicious exercise of the au-
thorities 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?
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136
No. 28
by Alexander Hamilton
The same subject continued
That there may happen cases, in which the national government may be
under the necessity of resorting to force, cannot be denied. Our own experi-
ence has corroborated the lessons taught by the examples of other nations;
that emergencies of this sort will sometimes exist in all societies, however
constituted; that seditions and insurrections are, unhappily, maladies as in-
separable from the body politic, as tumours 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 reverie of those political doctors, whose sagacity dis-
dains the admonitions of experimental instruction.
Should such emergencies at any time happen under the national govern-
ment, 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 com-
motion 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, even-
tually 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 gov-
ernment 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 be-
come unavoidable. It appears that Massachusetts found it necessary to raise
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troops for suppressing 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 in-
habitants ofVermont; 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 ten-fold 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 revolu-
tions, which are the continual scourges of petty republics?
Let us pursue this examination in another light. Suppose, in lieu of one
general system, two or three, or even four confederacies were to be formed,
would not the same difficulty oppose itself to the operations of either of these
confederacies? Would not each of them be exposed to the same casualties;
and, when these happened, be obliged to have recourse to the same expedi-
ents for upholding its authority, which are objected to a government for all
the states? Would the militia, in this supposition, be more ready or more
able to support the federal authority, than in the case of a general union? All
candid and intelligent men must, upon due consideration, acknowledge, that
the principle of the objection is equally applicable to either of the two cases;
and that whether we have one government for all the states, or different gov-
ernments for different parcels of them, or as many unconnected govern-
ments as there are 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
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those who require a more peremptory provision against military establish-
ments in time ofpeace, to say, that the whole power ofthe proposed gov-
ernment is to be in the hands of the representatives of the people. This is the
essential, and, after all, the only efficacious security for the rights and privi-
leges of the people, which is attainable in civil society.*
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 usurpation of the national rulers, may be exerted with an 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 em-
bryo. The smaller the extent of 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 ob-
tained 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 ensure 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 govern-
ment, 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 con-
federacy, the people, without exaggeration, may be said to be entirely the
masters of their own fate. Power being almost always the rival of power, the
general government will, at all times, stand ready to check the usurpations of
the state governments; and these will have the same disposition towards the
general government. The people, by throwing themselves into either scale,
*Its full efficacy will be examined hereafter.
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No. 28
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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 pene-
tration of select bodies of men, as of the people at large. The legislatures will
have better means of information; they can discover the danger at a distance;
and possessing all the organs of civil power, and the confidence of the people,
they can at once adopt a regular plan of opposition, in which they can com-
bine all the resources of the community. They can readily communicate with
each other in the different states; and unite their common forces, for the pro-
tection of their common liberty.
The great extent of the country is a further security. We have already ex-
perienced its utility against the attacks of a foreign enemy. And it would have
precisely the same effect against the enterprises of ambitions rulers in the na-
tional 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, in-
crease the population, and the natural strength of the community will pro-
portionably increase. When will the time arrive, that the federal government
can raise and maintain an army capable of creating 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, ofindependent nations? The
apprehension may be considered as a disease, for which there can be found
no cure in the resources of argument and reasoning.
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140
No. 29
by Alexander Hamilton
Concerning the militia
The power of regulating the militia, and of commanding its services in times
of insurrection and invasion, are natural incidents to the duties of superin-
tending 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 de-
fence. It would enable them to discharge the duties of the camp, and of the
field, with mutual intelligence and concert . . . an advantage of peculiar mo-
ment in the operations of an army; and it would fit them much sooner to ac-
quire the degree of proficiency in military functions, which would be essen-
tial to their usefulness. This desirable uniformity can only be accomplished,
by confiding the regulation ofthe militia to the direction ofthe 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 ofthe 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 this plan,
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
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dangerous to liberty, an efficacious power over the militia, in the same body,
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
ofthe civil magistrate, it can the better dispense with the employment of
a different kind offorce. Ifit cannot avail itselfofthe 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 ofcalling forth the militia to
execute the laws ofthe union, it has been remarked, that there is no where
any provision in the proposed constitution for requiring the aid of 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 ap-
peared, and sometimes even from the same quarter, not much calculated to
inspire a very favourable opinion of the sincerity or fair dealing of their
authors. The same persons who tell us in one breath, that the powers of the
federal government will be despotic and unlimited, inform us in the next,
that it has not authority sufficient even to call out the posse comitatus.
The latter, fortunately, is as much short of the truth, as the former exceeds it.
It would be as absurd to doubt, that a right to pass all laws necessary and
proper to execute its declared powers, would include that of requiring the
assistance of the citizens to the officers who may be intrusted with the execu-
tion of those laws; as it would be to believe, that a right to enact laws neces-
sary 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 ofabolishing the trial by jury in cases relating to it. It being therefore evi-
dent, that the supposition of a want of power to require the aid of the posse
comitatus is entirely destitute of colour, it will follow, that the conclusion
which has been drawn from it, in its application to the authority of the fed-
eral government over the militia, is as uncandid, as it is illogical. What rea-
son 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 neces-
sary? What shall we think ofthe motives which could induce men ofsense
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to reason in this extraordinary manner? How shall we prevent a conflict be-
tween charity and conviction?
By a curious refinement upon the spirit of republican jealousy, we are even
taught to apprehend danger from the militia itself, in the hands of the federal
government. It is observed, that select corps may be formed, composed of
the young and the 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 constition ratified, and were I to deliver my sentiments
to a member of the federal legislature on the subject of a militia establish-
ment, 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, nor a week, nor even a month, that will suffice
for the attainment ofit. To oblige the great body ofthe yeomanry, and of
the other classes of the citizens, to be under arms for the purpose of going
through military exercises and evolutions, as often as might be necessary to
acquire the degree of perfection which would entitle them to the character of
a well regulated militia, would be a real grievance to the people, and a serious
public inconvenience and loss. It would form an annual deduction from
the productive labour of the country, to an amount, which, calculating upon
the present numbers of the people, would not fall far short of a million of
pounds. To attempt a thing which would abridge the mass oflabour and
industry to so considerable an extent, would be unwise; and the experiment,
ifmade, could not succeed, because it would not long be endured. Little
more can reasonably be aimed at, with respect to the people at large, than to
have them properly armed and equipped; and in order to see that this be not
neglected, it will be necessary to assemble them once or twice in the course
of a year.
“But, though the scheme of disciplining the whole nation must be aban-
doned as mischievous or impracticable; yet it is a matter of the utmost im-
portance, 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 moder-
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No. 29
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ate size, upon such principles as will really fit it 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 for military establishments;
but if circumstances should at any time oblige the government to form an
army of any magnitude, that army can never be formidable to the liberties of
the people, while there is a large body of citizens, little, if at all, inferior to
them in discipline and the use of arms, who stand ready to defend their own
rights, and those of their fellow citizens. This appears to me the only substi-
tute 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 dan-
ger to liberty from the militia, that one is at a loss whether to treat it with grav-
ity or with raillery; whether to consider it as a mere trial of skill, like the para-
doxes 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 neighbours, 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 ofthe officers being in the appointment of
the states, ought at once to extinguish it. There can be no doubt, that this cir-
cumstance will always secure to them a preponderating influence over the
militia.
In reading many of the publications against the constitution, a man is apt
to imagine that he is perusing some ill written tale or romance; which, instead
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of natural and agreeable images, exhibits to the mind nothing but frightful
and distorted shapes. . . .
“Gorgons, Hydras, and Chimeras dire;”
discolouring 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 sug-
gestions which have taken place respecting the power of calling for the ser-
vices of the militia. That of New Hampshire is to be marched to Georgia, of
Georgia to New Hampshire, ofNew York to Kentucky, and ofKentucky to
Lake Champlain. Nay, the debts due to the French and Dutch, are to be paid
in militia men, instead ofLouis 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 ofMassachusetts; and that ofMas-
sachusetts is to be transported an equal distance, to subdue the refractory
haughtiness of the aristocratic Virginians. Do the persons, who rave at this
rate, imagine, that their art or their eloquence can impose any conceits or
absurdities upon the people of America for infallible truths?
If there should be an army to be made use of as the engine of despotism,
what need of the militia? If there should be no army, whither would the mili-
tia, irritated at being required to undertake a distant and distressing expedi-
tion, for the purpose of rivetting the chains of slavery upon a part of their
countrymen, direct their course, but to the seat of the tyrants, who had medi-
tated so foolish, as well as so wicked a project; to crush them in their imag-
ined entrenchments of power, and make them an example of the just ven-
geance 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 usurpa-
tions? Do they usually commence their career by wanton and disgustful acts
of power, calculated to answer no end, but to draw upon themselves univer-
sal hatred and execration? Are suppositions of this sort, the sober admoni-
tions of discerning patriots to a discerning people? Or are they the inflam-
matory ravings of chagrined incendiaries, or distempered enthusiasts? If we
were even to suppose the national rulers actuated by the most ungovernable
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ambition, it is impossible to believe that they would employ such preposter-
ous means to accomplish their designs.
In times ofinsurrection, or invasion, it would be natural and proper,
that the militia of a neighbouring state should be marched into another, to
resist a common enemy, or to guard the republic against the violences 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 succour 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 in-
attention to the dangers of a neighbour, till its near approach had superadded
the incitements of self-preservation, to the too feeble impulses of duty and
sympathy.
publius
No. 30
by Alexander Hamilton
Concerning taxation
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 necessar-
ily 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
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politic; as that which sustains its life and motion, and enables it to perform
its most essential functions. A complete power, therefore, to procure a regu-
lar and adequate supply of revenue, as far as the resources of the community
will permit, may be regarded as an indispensable ingredient in every consti-
tution. 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 im-
pose a new tax. The consequence is, that he permits the bashaws or governors
of provinces to pillage the people at discretion; 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 annihi-
lation. Who can doubt, that the happiness of the people in both countries
would be promoted by competent authorities in the proper hands, to provide
the revenues which the necessities of the public might require?
The present confederation, feeble as it is, intended to repose in the United
States an unlimited power of providing for the pecuniary wants of the union.
But proceeding upon an erroneous principle, it has been done in such a
manner as entirely to have frustrated the intention. Congress, by the articles
which compose that compact (as has been already 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 dis-
cretion beyond that of devising the ways and means of furnishing the sums
demanded. But though this be strictly and truly the case; though the as-
sumption 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 the system have been, is
within the knowledge of every man, the least conversant in our public affairs,
and has been abundantly unfolded in different parts of these inquiries. It is
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this which has chiefly contributed to reduce us to a situation, that affords
ample cause 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 de-
claim with plausibility on any subject; but no Luman ingenuity can point out
any other expedient to rescue us from the inconveniences and embarrass-
ments, 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 taxations. The former they would reserve
to the state governments; the latter, which they explain into commercial im-
posts, or rather duties on imported articles, they declare themselves willing
to concede to the federal head. This distinction, however, would violate that
fundamental maxim of good sense and sound policy, which dictates that
every power ought to be proportionate to its object; and would still leave
the general government in a kind of tutelage to the state governments, in-
consistent with every idea of vigour or efficiency. Who can pretend that com-
mercial imposts are, or would be, alone equal to the present and future exi-
gencies of the union? Taking into the account the existing debt, foreign and
domestic, upon any plan of extinguishment, which a man moderately im-
pressed with the importance of public justice and public credit could ap-
prove, 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 ne-
cessities. Its future necessities admit not of calculation or limitation; and
upon the principle more than once adverted to, the power of making provi-
sion for them as they arise ought to be equally unconfined. I believe it may
be regarded as a position, warranted by the history of mankind, that in the
usual progress of things, the necessities of a nation, in every stage of its existence,
will be found at least equal to its resources.
To say that deficiencies may be provided for by requisitions upon the
states, is on the one hand to acknowledge that this system cannot be de-
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pended upon; and on the other hand, to depend upon it for every thing
beyond a certain limit. Those who have carefully attended to its vices and
deformities, as they have been exhibited by experience, or delineated in the
course ofthese papers, must feel an invincible repugnancy to trusting the
national interests, in any degree to its operation. Whenever it is brought into
activity, its inevitable tendency 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 deficien-
cies would be better supplied in this mode, than the total wants of the union
have heretofore been supplied, in the same mode? It ought to be recollected,
that if less will be required from the states, they will have proportionably less
means to answer the demand. If the opinions of those who contend for the
distinction which has been mentioned, were to be received as evidence of
truth, one would be led to conclude, that there was some known point in the
economy of national affairs, at which it would be safe to stop, and to say: thus
far, the ends of public happiness will be promoted by supplying the wants
of government, and all beyond this is unworthy of our care or anxiety. How
is it possible that a government, half supplied and always necessitous, can
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 argu-
ment sake, that the revenue arising from the import duties answers the pur-
poses 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 ofthe 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 offresh 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 de-
fence 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
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No. 30
149
public credit at the very moment that it was become 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 opu-
lent 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 burthensome 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 sup-
posed, would exist; though the national government should possess an un-
restrained 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 com-
munity, 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, by its own authority, new funds from new objects
oftaxation, 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 under-
stood, would require a degree ofcredulity, not often to be met with in the
pecuniary transactions of mankind, and little reconcileable with the usual
sharp-sightedness of avarice.
Reflections of this kind may have trifling weight with men who hope to see
the halcyon scenes of the poetic or fabulous age realized in America; but to
those who believe we are likely to experience a common portion of the vicis-
situdes and calamities which have fallen to the lot of other nations, they must
appear entitled to serious attention. Such men must behold the actual situ-
ation of their country with painful solicitude, and deprecate the evils which
ambition or revenge might, with too much facility, inflict upon it.
publius
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150
No. 31
By Alexander Hamilton
The same subject continued
In disquisitions of every kind, there are certain primary truths, or first prin-
ciples, upon which all subsequent reasonings must depend. These contain an
internal evidence, which, antecedent to all reflection or combination, com-
mands the assent of the mind. Where it produces not this effect, it must pro-
ceed either from some disorder in the organs of perception, or from the
influence of some strong interest, or passion, or prejudice. Of this nature are
the maxims in geometry, that the whole is greater than its part; that things
equal to the same, are equal to one another; that two straight lines cannot
inclose a space; and that 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 in-
capable 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 such direct
inferences from them, and so obvious in themselves, and so agreeable to the
natural and unsophisticated dictates of common sense, that they challenge
the assent of a sound and unbiassed mind, with a degree of force and con-
viction 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 theo-
rems 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
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No. 31
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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 armour against error and imposition. But
this untractableness may be carried too far, and may degenerate into obsti-
nancy, 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 situa-
tions, we should be disposed to allow them. The obscurity is much oftener in
the passions and prejudices of the reasoner, than in the subject. Men, upon
too many occasions, do not give their own understandings fair play; but
yielding to some untoward bias, they entangle themselves in words, and con-
found themselves in subtleties.
How else could it happen (if we admit the objectors to be 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 posi-
tions have been elsewhere fully stated, they will perhaps not be improperly re-
capitulated 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 follow:
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 con-
trol 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 ca-
sualties 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 ofanswering the
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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 ofprocuring
revenue is unavailing, when exercised over the states in their collective ca-
pacities, the federal government must of necessity be invested with an un-
qualified 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, un-
assisted 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 analize the ar-
guments with which they combat it.
Those of them which have been most laboured with that view, seem in
substance to amount to this: “It is not true, because the exigencies of the
union may not be susceptible oflimitation, that its power of laying taxes
ought to be unconfined. Revenue is as requisite to the purposes of the local
administrations, as to those of the union; and the former are at least of equal
importance with the latter, to the happiness of the people. It is therefore as
necessary, that the state governments should be able to command the means
of supplying their wants, as that the national government should possess the
like faculty, in respect to the wants of the union. But an indefinite power of
taxation in the latter might, and probably would, in time, deprive the former
of the means of providing for their own necessities; and would subject them
entirely to the mercy of the national legislature. As the laws of the union are
to become the supreme law of the land; as it is to have power to pass all laws
that may be necessary for carrying into execution the authorities with
which it is proposed to vestit; the national government might at any time
abolish the taxes imposed for state objects, upon the pretence of an interfer-
ence 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.”
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This mode of reasoning appears sometimes to turn upon the supposition
of usurpation in the national government; at other times, it seems to be de-
signed 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 escape from the apparitions
which itself has raised. 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 ofabsolute scepticism and irresolution. I repeat here what I have
observed in substance in another place, that all observations, founded upon
the danger of usurpation, ought to be referred to the composition and struc-
ture of the government, not to the nature and extent of its powers. The state
governments, by their original constitutions, are invested with complete sov-
ereignty. In what does our security consist against usurpations from that
quarter? Doubtless in the manner of their formation, and in a due depend-
ence of those who are to administer them upon the people. If the proposed
construction of the federal government be found, upon an impartial exami-
nation of it, to be such as to afford, to a proper extent, the same species of se-
curity, 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 ofthe 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 re-
publics, strength is always on the side of the people; and as there are weighty
reasons to induce a belief, that the state governments will commonly possess
most influence over them, the natural conclusion is, that such contests will
be most apt to end to the disadvantage of the union; and that there is greater
probability of encroachments by the members upon the federal head, than by
the federal head upon the members. But it is evident, that all conjectures of
this kind must be extremely vague and fallible; and that it is by far the safest
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154
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
by Alexander Hamilton
The same subject continued
Although I am of opinion that there would be no real danger of the con-
sequences to the state governments, which seem to be apprehended 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 ofthe state governments, and a conviction ofthe utility and
necessity oflocal 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 uncontrolable 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 au-
thority 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 sover-
eignty, would imply an entire subordination of the parts; and whatever pow-
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No. 32
155
ers might remain in them, would be altogether dependent on the general will.
But as the plan of the convention aims only at a partial union or consolida-
tion, 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 ofoccasional interferences in the policy
of any branch of administration, but would not imply any direct contradic-
tion 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 impowers 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 exclu-
sive power in the union to lay duties on imports and exports, with the par-
ticular 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 dis-
tinct rule, there could be no 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 considera-
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tion. I mean the power of imposing taxes on all articles other than exports
and imports. This, I contend, is manifestly a concurrent and co-equal au-
thority 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 conclu-
sive argument to the contrary is deducible, 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 ofthe states remains undiminished. In any other view it would
be both unnecessary and dangerous. It would be unnecessary, because if the
grant to the union of the power of laying such duties, implied the exclusion
of the states, or even their subordination in this particular, there could be no
need of such a restriction: it would be dangerous, because the introduction of
it leads directly to the conclusion which has been mentioned, and which, if
the reasoning of the objectors be just, could not have been intended; I mean
that the states, in all cases to which the restriction did not apply, would have
a concurrent power of taxation with the union. The restriction in question
amounts to what lawyers call a negative pregnant; that is, a negation of
one thing, and an affirmance of another; a negation of the authority of the
states to impose taxes on imports and exports, and an affirmance of their
authority to impose them on all other articles. It would be mere sophistry to
argue that it was meant to exclude them absolutely from the imposition of
taxes of the former kind, and to leave them at liberty to lay others subject to
the control of the national legislature. The restraining or prohibitory clause
only says, that they shall not, without the consent of congress, lay such duties;
and if we are to understand this in the sense last mentioned, the constitution
would then be made to introduce a formal provision, for the sake of a very
absurd conclusion; which is, that the states, with the consent of the national
legislature, might tax imports and exports; and that they might tax every
other article, unless controled by the same body. If this was the intention,
why was it not left, in the first instance, to what is alleged to be the natural
operation of the original clause, conferring a general power of taxation upon
the union? It is evident that this could not have been the intention, and that
it will not bear a construction of the kind.
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As to a supposition of repugnancy between the power of taxation in the
states and in the union, it cannot be supported in that sense which would be
requisite to work an exclusion of the states. It is indeed possible that a tax
might be laid on a particular article by a state, which might render it inexpe-
dient that 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 ofthe imposition, the expediency or inexpediency ofan increase
on either side, would be mutually questions ofprudence; but there would
be involved no direct contradiction ofpower. The particular policy ofthe
national and of the state system 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 con-
stitutional repugnancy, that can by implication alienate and extinguish a pre-
existing right of sovereignty.
The necessity ofa concurrent jurisdiction in certain cases, results from
the division ofthe sovereign power; and the rule that all authorities, of
which the states are not explicitly divested in favour of the union, remain
with them in full vigour, is not only a theoretical consequence of that divi-
sion, but is clearly admitted by the whole tenor ofthe instrument which
contains the articles of the proposed constitution. We there find, that not-
withstanding 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 hy-
pothesis to the contrary.
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No. 33
by Alexander Hamilton
The same subject continued
The residue ofthe argument against the provisions ofthe constitution, in
respect to taxation, is ingrafted upon the following clauses: The last clause of
the eighth section of the first article, 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 sources of much virulent invective, and
petulant declamation, against the proposed constitution. They have been
held up to the people in all the exaggerated colours ofmisrepresentation;
as the pernicious engines by which their local governments were to be de-
stroyed, and their liberties exterminated; as the hideous monster whose de-
vouring 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 clamour, 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, ifthese clauses were
entirely obliterated, as ifthey were repeated in every article. They are only
declaratory of a truth, which would have resulted by necessary and unavoid-
able 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 copi-
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ously 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 execut-
ing such a power, but necessary and proper laws?
This simple train ofinquiry furnishes us at once with a test ofthe 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 collect-
ing 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 im-
mediate subject under consideration, and because it is the most important of
the authorities proposed to be conferred upon the union. But the same pro-
cess 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 be 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 cav-
illing 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 govern-
ments will finally sap the foundations of the union; and might therefore think
it necessary, in so cardinal a point, to leave nothing to construction. What-
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ever may have been the inducement to it, the wisdom of the precaution is evi-
dent 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 construction of its authority (which indeed cannot easily be imag-
ined) 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 the 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 ani-
mosity to the plan of the convention, have laboured to envelope 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. What inference can be drawn from this, or what would they amount to,
if they were not to be supreme? It is evident they would amount to nothing.
A law, by the very meaning of the term, includes supremacy. It is a rule,
which those to whom it is prescribed are bound to observe. This results from
every political association. If individuals enter into a state of society, the laws
of that society must be the supreme regulator of their conduct. If a number
ofpolitical societies enter into a larger political society, the laws which the
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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 ofthe residuary authorities
of the smaller societies, will become the supreme law of the land. These will
be merely acts ofusurpation, 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 limi-
tation 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 controled;
yet, a law abrogating or preventing the collection of a tax laid by the author-
ity of a state, (unless upon imports and exports) would not be the supreme
law of the land, but an usurpation of a 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 in-
convenience, 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 interests 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 inde-
pendent and uncontrolable 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 juris-
diction 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.
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162
No. 34
by Alexander Hamilton
The same subject continued
I flatter myself it has been clearly shown in my last number, that the particu-
lar states, under the proposed constitution, would have co-equal 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 com-
munity, there can be no colour 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 develope the inconsiderable share of
the public expenses, for which it will fall to the lot of the state governments
to provide.
To argue upon abstract principles, that this co-ordinate authority cannot
exist, would be to set up theory and supposition 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 leg-
islature, but as distinct and independent legislatures; in each ofwhich 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 re-
peal 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 readily
be understood, that I allude to the comitia centuriata and the comitia
tributia. 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
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which numbers prevailed, the Plebeian interest had an entire predominancy.
And yet these two legislatures co-existed for ages, and the Roman republic
attained to the pinnacle of human greatness.
In the case particularly under consideration, there is no such contradic-
tion 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 oftime, the wants ofthe states
will naturally reduce themselves within a very narrow compass: and in the in-
terim, 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 fed-
eral provision in respect to revenue, and those which will require a state pro-
vision. 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, ac-
cording 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 neces-
sities. There ought to be a capacity to provide for future contingencies, as
they may happen; and as these are illimitable in their nature, so it is impos-
sible 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 suf-
fice in time of peace. But would it be wise, or would it not rather be the ex-
treme 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 pro-
vide for the protection of the community, against future invasions of the
public peace, by foreign war or domestic convulsions? If we must be obliged
to exceed this point, where can we stop short of an indefinite power of pro-
viding for emergencies as they may arise? Though it be easy to assert, in gen-
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The Federalist
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eral terms, the possibility of forming a rational judgment of a due provision
against probable dangers; yet we may safely challenge those who make the
assertion, to bring forward their data, and may affirm, that they would be
found as vague and uncertain as any that could be produced to establish the
probable duration of the world. Observations, confined to the mere pros-
pects of internal attacks, can deserve no weight; though even these will admit
of no satisfactory calculations: 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 poli-
tics, of tying up the hands of government from offensive war, founded upon
reasons of state: yet, certainly, we ought not to disable it from guarding the
community against the ambition or enmity of other nations. A cloud has
been for some time hanging over the European world. If it should break forth
into a storm, who can insure us, that in its progress a part of its fury would
not be spent upon us? No reasonable man would hastily pronounce that we
are entirely out of its reach. Or if the combustible materials that now seem to
be collecting, should be dissipated without coming to maturity; or if a flame
should be kindled without extending to us; what security can we have that
our tranquillity will long remain undisturbed from some other cause, or
from some other quarter? Let us recollect, that peace or war will not always
be left to our option; that however moderate or unambitious we may be, we
cannot count upon the moderation, or hope to extinguish the ambition, of
others. Who could have imagined, at the conclusion of the last war, that
France and Britain, wearied and exhausted as they both were, would already
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 de-
structive passions of war reign in the human breast with much more power-
ful sway, than the mild and beneficent sentiments of peace; and that to model
our political systems upon speculations of lasting tranquillity, would be to
calculate on the weaker springs of the human character.
What are the chiefsources ofexpense 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 rebellious;
the support of those institutions which are necessary to guard the body
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No. 34
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politic against these two most mortal diseases of society. The expenses arising
from those institutions which relate to the mere domestic police of a state, to
the support of its legislative, executive, and judiciary departments, with their
different appendages, and to the encouragement of agriculture and manufac-
tures, (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 in-
come 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 am-
bitions enterprises and vain glorious 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 take a view of 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 expenditure. It is true,
that several of the states, separately, are incumbered with considerable debts,
which are an excresence 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 con-
tinue 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 a million of dollars.
If it cannot be denied to be a just principle, that in framing a constitution
of government for a nation, we ought, in those provisions which are designed
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to be permanent, to calculate, not on temporary, but on permanent causes of
expense; our attention would be directed to a provision in favour of the state
governments for an annual sum of about 1,000,000 dollars; while the exi-
gencies 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 reve-
nue for any sum beyond that which has been stated? To extend its power fur-
ther, in exclusion of the authority of the union, would be to take the resources
of the community out of those hands which stood in need of them for the
public welfare, in order to put them into other hands which could have no
just or proper occasion for them.
Suppose then, the convention had been inclined to proceed upon the
principle of a repartition of the objects of revenue, between the union and its
members in proportion to their comparative necessities; what particular fund
could have been selected for the use of the states, that would not either have
been too much or too little; too little for their present, too much for their fu-
ture 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 twenti-
eth of its expenses; and to the union, one third of the resources of the com-
munity 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 dis-
proportion 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 exist-
ing debts of the particular states, and would have left them dependent on the
union for a provision for this purpose.
The preceding train of observations will justify the position which has
been elsewhere laid down, that “a concurrent jurisdiction in the ar-
ticle of taxation, was the only admissible substitute for an entire subordi-
nation, 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
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167
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
by Alexander Hamilton
The same subject continued
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 propor-
tion of the public burthens to fall upon those objects. Two evils would spring
from this source . . . the oppression of particular branches of industry, and an
unequal distribution of the taxes, as well among the several states, as among
the citizens of the same state.
Suppose, as has been contended for, the federal power of taxation were to
be confined to duties on imports; it is evident that the government, for want
of being able to command other resources, would frequently be tempted to
extend these duties to an injurious excess. There are persons who imagine
that this can never be the case; since the higher they are, the more it is alleged
they will tend to discourage an extravagant consumption, to produce a fa-
vourable balance of trade, and to promote domestic manufactures. But all
extremes are pernicious in various ways. Exorbitant duties on imported ar-
ticles serve to 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 man-
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ufacturing classes, to whom they give a premature monopoly of the markets:
they sometimes force industry out of its most 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 some-
times not only exhausts his profits but breaks in upon his capital. I am apt to
think, that a division of the duty, between the seller and the buyer, more often
happens than is commonly imagined. It is not always possible to raise the
price of a commodity, in exact proportion to every additional imposition laid
upon it. The merchant, especially in a country ofsmall commercial capital,
is often under a necessity of keeping prices down in order to a more expedi-
tious 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 ofthe 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 im-
posts, would be attended with inequality, from a different cause, between the
manufacturing and the non-manufacturing states. The states which can go
furthest towards the supply of their own wants, by their own manufactures,
will not, according to their numbers or wealth, consume so great a propor-
tion of imported articles, as those states which are not in the same favourable
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 neces-
sary that recourse be had to excises; the proper objects of which are particu-
lar kinds of manufactures. New York is more deeply interested in these con-
siderations, 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 from a greater disproportion between her population and territory, is
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less likely, than some other states, speedily to become in any considerable de-
gree 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 ofthese papers, that the interest ofthe
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, might
beget experiments, fortified by rigorous precautions and additional penal-
ties; which, for a time, might have the intended effect, till there had been
leisure to contrive expedients to elude these new precautions. The first suc-
cess would be apt to inspire false opinions; which it might require a long
course of subsequent experience to correct. Necessity, especially in politics,
often occasions false hopes, false reasonings, and a system of measures cor-
respondently erroneous. But even if this supposed excess should not be a
consequence of the limitation of the federal power of taxation, the inequali-
ties 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 constitu-
ents. 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 ad-
dressed. But when we come to dissect it with attention, it will appear to be
made up ofnothing 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 num-
bers; and shall content myself with examining here the particular use which
has been made of a contrary supposition, in reference to the immediate sub-
ject of our inquiries.
The idea of an actual representation of all classes of the people, by persons
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of each class, is altogether visionary. Unless it were expressly provided in the
constitution, that each different occupation should send one or more mem-
bers, the thing would never take place in practice. Mechanics and manu-
facturers 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 of life have not been
such as to give them those acquired endowments, without which, in a delib-
erative assembly, the greatest natural abilities are for the most part useless;
and that the influence and weight, and superior acquirements of the mer-
chants, render them more equal to a contest with any spirit which might hap-
pen to infuse itself into the public councils, unfriendly to the manufacturing
and trading interests. These considerations, and many others that might be
mentioned, prove, and experience confirms it, that artizans and manufac-
turers 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 tal-
ents, 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 thousands of acres, as well as the pro-
prietor of a single acre. Every landholder will therefore have a common in-
terest to keep the taxes on land as low as possible; and common interest may
always be reckoned upon as the surest bond ofsympathy. But ifwe even
could suppose a distinction of interests 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
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last? If we take fact as our guide, and look into our own senate and assembly,
we shall find that moderate proprietors ofland prevail in both; nor is this
less the case in the senate, which consists ofa 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 ex-
ceptions to have any influence on the spirit of the government, will be com-
posed 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 injure
the interests 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 culti-
vate, as far as may be proper, the interests of the mechanic and manufactur-
ing 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 among the dif-
ferent 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 community?
If we take into the account the momentary humours or dispositions which
may happen to prevail in particular parts of the society, and to which a wise
administration will never be inattentive, is the man whose situation leads to
extensive inquiry and information less likely to be a competent judge of their
nature, extent, and foundation, than one whose observation does not travel
beyond the circle of his neighbours and acquaintances? Is it not natural that
a man who is a candidate for the favour of the people, and who is dependent
on the suffrages of his fellow citizens for the continuance of his public hon-
ours, should take care to inform himself of their dispositions and inclina-
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172
tions, and should be willing to allow them their proper degree of influence
upon his conduct? This dependence, and the necessity of being bound him-
self, 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 exten-
sive 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 offinance will
always be the least burthensome. 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 coun-
try. And this is all that can be reasonably meant by a knowledge of the in-
terests 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
by Alexander Hamilton
The same subject continued
We have seen that the result of the observations to which the foregoing num-
ber 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 al-
most entirely of proprietors of land, of merchants, and of members of the
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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 particu-
larly 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 be-
tween different branches of the mechanic or manufacturing arts, as there are
between any of the departments of labour 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 deliberation, 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 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, which
claims our attention. It has been asserted that a power of internal taxation in
the national legislature, could never be exercised with advantage, as well from
the want of a sufficient knowledge of local circumstances, as from an inter-
ference between the revenue laws of the union, and of the particular states.
The supposition of a want of proper knowledge, seems to be entirely desti-
tute of foundation. If any question is depending in a state legislature, re-
specting 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
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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 topo-
graphical acquaintance with all the mountains, rivers, streams, highways,
and bye-paths in each state? Or is it a general acquaintance with its situa-
tion, and resources . . . with the state of its agriculture, commerce, manu-
factures . . . 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 ofa few individuals, who digest and prepare, in the first
instance, the plans of taxation; which are afterwards passed into law by the
authority of the sovereign or legislature. Inquisitive and enlightened states-
men, are every where deemed 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 sub-divided 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 appre-
hended. 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 pro-
cured from any well informed man, especially of the mercantile class. The
circumstances that may distinguish its situation in one state, from its situ-
ation 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 of the several states.
The objection, when applied to real property, or to houses and lands, ap-
pears to have, at first sight, more foundation; but even in this view, it will not
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No. 36
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bear a close examination. Land taxes are commonly laid in one of two modes,
either by actual valuations, permanent or periodical, or by occasional assess-
ments, 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 confided to dis-
creet 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 gen-
eral outlines of ther powers and duties. And what is there in all this, that can-
not as well be performed by the national legislature, as by the 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 it 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 cir-
cumstance 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 taxa-
tion by the union, should be judged beforehand upon mature consideration,
or should be discovered on experiment to be really inconvenient, the federal
government may 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 re-
source? Two solid answers may be given; the first is, that the actual exercise
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176
ofthe power, may be found both convenient and necessary; for it is impos-
sible 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 supply itself without their agency, it will be a power-
ful motive for exertion on their part.
As to the interference of the revenue laws of the union, and of its mem-
bers, we have already seen that there can be no clashing or repugnancy of au-
thority. 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, mu-
tually 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 imme-
diate 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 burthens by double taxations, and the frightful forms
of odious and oppressive poll taxes, have been played off with all the inge-
nious 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 pre-occupied for
local purposes, or will make use ofthe 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 noth-
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177
*The New England states.
ing more can be required than to show, that evils predicted do not necessar-
ily 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 coun-
cils of the union, the most certain road to the accomplishment of its aim
would be, to employ the state officers as much as possible, and to attach them
to the union by an accumulation of their emoluments. This would serve to
turn the tide of state influence into the channels of the national government,
instead of making federal influence flow in an opposite and adverse current.
But all suppositions of this kind are invidious, and ought to be banished from
the consideration of the great question before the people. They can answer no
other end than to cast a mist over the truth.
As to the suggestion of double taxation, the answer is plain. The wants of
the union are to be supplied in one way or another; if by the authority of the
federal government, then it will not remain to be done by that of the state
governments. 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 burthens, 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,* which
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178
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 na-
tional 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 govern-
ment. There are certain emergencies of nations, in which expedients, that in
the ordinary state ofthings ought to be forborn, become essential to the
public weal. And the government, from the possibility of such emergencies,
ought ever to have the option ofmaking use ofthem. 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 tem-
pestuous conjunctures of the state, in which a poll tax may become an in-
estimable 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 those powers, proposed to be
conferred upon the federal government, which relate more peculiarly to its
energy, and to its efficiency for answering the great and primary objects of
union. There are others which, though omitted here, will, in order to render
the view of the subject more complete, be taken notice of under the next head
of our inquiries. I flatter myself the progress already made, will have sufficed
to satisfy the candid and judicious part of the community, that some of the
objections which have been most strenuously urged against the constitution,
and which were most formidable in their first appearance, are not only des-
titute of substance, but if they had operated in the formation of the plan,
would have rendered it incompetent to the great ends of public happiness
and national prosperity. I equally flatter myself, that a further and more criti-
cal investigation of the system, will serve to recommend it still more to every
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179
sincere and disinterested advocate for good government; and will leave no
doubt with men of this character, of the propriety and expediency of adopt-
ing it. Happy will it be for ourselves, and most honourable for human nature,
if we have wisdom and virtue enough, to set so glorious an example to
mankind.
publius
No. 37
by James Madison
Concerning the difficulties which the convention must
have experienced in the formation of a proper plan
In reviewing the defects of the existing confederation, and showing that they
cannot be supplied by a government ofless energy than that before the pub-
lic, 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 adopt-
ing it, our plan cannot be completed without taking a more critical and thor-
ough 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
candour 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 ofit. To those who have been
led by experience to attend to this consideration, it could not appear surpris-
ing, that the act of the convention which recommends so many important
changes and innovations; which may be viewed in so many lights and rela-
tions, and which touches the springs of so many passions and interests,
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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 op-
posite 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 insinu-
ate that there may not be a material difference in the purity of their inten-
tions. It is but just to remark in favour of the latter description, that as our
situation is universally admitted to be peculiarly critical, and to require in-
dispensably, 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 ofthese considerations, as well as from considerations ofa sinister
nature. The predetermined adversary, on the other hand, can have been gov-
erned by no venial motive whatever. The intentions of the first may be up-
right, as they may on the contrary be culpable. The views of the last cannot
be upright, and must be culpable. But the truth is, that these papers are not
addressed to persons falling under 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 favourable to a just estimate of the means of promoting it.
Persons of this character will proceed to an examination of the plan sub-
mitted by the convention, not only without a disposition to find or to mag-
nify 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
ofmen, 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 candour, 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 ofthese 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
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shown, that the other confederacies which could be consulted as precedents,
have been vitiated by the same erroneous principles, and can therefore fur-
nish no other light than that ofbeacons, which give warning ofthe 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 ofother countries, as well as ofour own;
and to provide a convenient mode ofrectifying 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 gov-
ernment, 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 sub-
ject. 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 chiefblessings 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 pro-
nounced with assurance, that the people of this country, enlightened as they
are, with regard to the nature, and interested, as the great body of them are,
in the effects of good government, will never be satisfied, till some remedy be
applied to the vicissitudes and uncertainties, which characterize the state ad-
ministrations. 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 in 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 electors; and a frequent change
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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 govern-
ments. 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, judg-
ment, 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 inge-
nious disquisition and controversy. The boundaries between the great king-
doms 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 dis-
trict of vegetable life, from the neighbouring 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 obscu-
rity arises as well from the object itself, as from the organ by which it is con-
templated; we must perceive the necessity ofmoderating still further our
expectations and hopes from the efforts of human sagacity. Experience has
instructed us, that no skill in the science of government has yet been able to
discriminate and define, with sufficient certainty, its three great provinces,
the legislative, executive, and judiciary; or even the privileges and powers of
the different legislative branches. Questions daily occur in the course of prac-
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tice, 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 labours of the
most enlightened legislators and jurists, have been equally unsuccessful in
delineating the several objects and limits of different codes of laws, and dif-
ferent tribunals of justice. The precise extent of the common law, the statute
law, the maritime law, the ecclesiastical law, the law of corporations, and
other local laws and customs, remain 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, &c. is not less a
source of frequent and intricate discussions, sufficiently denoting the in-
determinate 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 appropri-
ated 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 dis-
crimination may be conceived, the definition of them may be rendered in-
accurate, by the inaccuracy of the terms in which it is delivered. And this un-
avoidable 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; indistinct-
ness ofthe object, imperfection ofthe organ ofperception, inadequateness
ofthe vehicle ofideas. Any one ofthese must produce a certain degree of
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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 pre-
tensions of the larger and smaller states. We cannot err, in supposing that the
former would contend for a participation in the government, fully propor-
tioned to their superior wealth and importance; and that the latter would not
be less tenacious of the equality at present enjoyed by them. We may well sup-
pose, 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 par-
ties, to give such a turn to the organization of the government, and to the dis-
tribution 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 supposi-
tions; and as far as either of them is well founded, it shows that the conven-
tion 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 mar-
shal themselves in opposition to each other on various points. Other combi-
nations, 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 rea-
sons 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
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have been surmounted; and surmounted with an unanimity almost as un-
precedented, as it must have been unexpected. It is impossible for any man
of candour to reflect on this circumstance, without partaking of the aston-
ishment. 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 re-
forming the baneful and notorious vices of their constitution. The history of
almost all the great councils and consultations, held among mankind for rec-
onciling 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 degrading
pictures, which display the infirmities and depravities of the human charac-
ter. 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 ofthe adverse prospect to which they are contrasted. In
revolving the causes from which these exceptions result, and applying them
to the particular instance 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 ani-
mosities; the diseases most incident to deliberative bodies, and most apt to
contaminate their proceedings. The second conclusion is, that all the depu-
tations composing the convention, were either 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
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No. 38
by James Madison
The subject continued, and the incoherence
of the objections to the plan, exposed
It is not a little remarkable, that in every case reported by ancient history, in
which government has been established with deliberation and consent, the
task of framing it has not been committed to an assembly of men; but has
been performed by some individual citizen, of pre-eminent wisdom and ap-
proved integrity.
Minos, we learn, was the primitive founder ofthe government ofCrete;
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 ofhis elective successors, Numa,
and Tullus Hostilius. On the abolition of royalty, the consular administration
was substituted by Brutus, who stepped forward with a project for such a re-
form, which he alleged had been prepared by Servius Tullius, and to which
his address obtained the assent and ratification of the senate and people. This
remark is applicable to confederate governments also. Amphyction, we are
told, was the author of that which bore his name. The Achaean league re-
ceived its first birth from Achaeus, and its second from Aratus.
What degree of agency these reputed lawgivers might have in their re-
spective 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 gov-
ernment and laws. And Solon, according to Plutarch, was in a manner com-
pelled, by the universal suffrage of his fellow citizens, to take upon him the
sole and absolute power of new modelling the constitution. The proceedings
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under Lycurgus were less regular: but as far as the advocates for a regular re-
form 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 despository of the fortunes of themselves
and their posterity, than a select body of citizens, from whose common de-
liberations more wisdom, as well as more safety, might have been expected?
These questions cannot be fully answered, without supposing that the fears
of discord and disunion among a number of counsellors, exceeded the ap-
prehension of treachery or incapacity in a single individual. History informs
us likewise, of the difficulties with which these celebrated reformers had to
contend; as well as of 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 secur-
ing 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 haz-
ards and difficulties incident to such experiments, and of the great impru-
dence of unnecessarily multiplying them.
Is it an unreasonable conjecture, that the errors which may be con-
tained in the plan of the convention, are such as have resulted, rather from
the defect of antecedent experience on this complicated and difficult sub-
ject, than from a want of accuracy or care in the investigation of it; and con-
sequently, such as will not be ascertained until an actual trial shall have
pointed them out? This conjecture is rendered probable, not only by many
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188
considerations ofa general nature, but by the particular case ofthe 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 rea-
son 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 re-
member, 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 en-
dangering 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 effica-
cious 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 re-
lief, is so far from being desperate, that it may be made to issue in an im-
provement 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 ofcertain death, to make use ofit. 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 sub-
stituted? And if he found them differing as much from one another, as from
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No. 38
189
his first counsellors, would he not act prudently, in trying the experiment
unanimously recommended by the latter, rather than in hearkening to those
who could neither deny the necessity of a speedy remedy, nor agree in pro-
posing one.
Such a patient, and in such a situation, is America at this moment. She
has been sensible ofher 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 ofher 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, be-
cause it is not a confederation of the states, but a government over individ-
uals. 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 ob-
ject 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 capac-
ity. 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 admin-
ister the new government. From another quarter, and sometimes from the
same quarter, on another occasion, the cry is, that the congress will be but
the shadow of a representation, and that the government would be far less ob-
jectionable, 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 burthen of taxes may be
thrown on consumption. This politician discovers in the constitution a di-
rect and irresistible tendency to monarchy: that, is equally sure, it will end in
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190
aristocracy. Another is puzzled to say which of these shapes it will ultimately
assume, but sees clearly it must be one or other of them. Whilst a fourth is
not wanting, who with no less confidence affirms, that the constitution is so
far from having a bias towards either of these dangers, that the weight on that
side will not be sufficient to keep it upright and firm against its opposite
propensities. With another class of adversaries to the constitution, the lan-
guage is, that the legislative, executive, and judiciary departments, are inter-
mixed in such a manner, as to contradiet 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 not a few who lend their
sanction to it. Let each one come forward with his particular explanation,
and scarcely any two are exactly agreed on the subject. In the eyes of one, the
junction of the senate with the president, in the responsible function of ap-
pointing to offices, instead of vesting this executive power in the executive
alone, is the vicious part ofthe 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 jeal-
ousy. 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 evi-
dently 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 refer-
ence 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 irreconcileable variance is discovered, con-
cerning 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 ap-
pointed by the most numerous branch ofthe 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 ofthe federal
constitution, let us suppose, that as they are the most zealous, so they are also
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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 favourable opinion of their merits, and in their unfavourable opinion
of the convention; and should accordingly proceed to form them into a sec-
ond 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 requires 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 pub-
lic, 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 oflawgivers.
It is a matter both of wonder and regret, that those who raise so many ob-
jections 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 re-
fuse 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 cieling a little
higher or lower than his fancy would have planned them. But wa[i]ving
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 con-
federation? Is an indefinite power to raise money, dangerous in the hands of
a 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 con-
gress that power also; and they have already begun to make use ofit. Is it
improper and unsafe to intermix the different powers of government in the
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192
same body ofmen? Congress, a single body ofmen, are the sole depository
of all the federal powers. Is it particularly dangerous to give the keys of the
treasury, and the command of the army, into the same hands? The confeder-
ation 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 for ever.
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 ofthe supreme government ofthe 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 ofsuch a nature as to extri-
cate 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 indi-
vidual 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 ofthis stock. They have
begun to render it productive. Congress have undertaken to do more:... they
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have proceeded to form new states; to erect temporary governments; to ap-
point 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 colour 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 ofthe latter, as no less necessary
to guard the union against the future powers and resources of a body con-
structed 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 ofoverleaping 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
by James Madison
The conformity of the plan to republican principles: an
objection in respect to the powers of the convention, examined
The last paper having concluded the observations, which were meant to in-
troduce a candid survey of the plan of government reported by the conven-
tion, 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
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of the government be strictly republican? It is evident that no other form
would be reconcileable with the genius of the people of America; with the
fundamental principles of the revolution; or with that honourable determi-
nation which animates every votary of freedom, to rest all our political ex-
periments 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 uni-
versally under the denomination of a republic. The same title has been be-
stowed on Venice, where absolute power over the great body ofthe people
is exercised, in the most absolute manner, by a small body ofhereditary
nobles. Poland, which is a mixture of aristocracy and of monarchy in their
worst forms, has been dignified with the same appellation. The government
ofEngland, which has one republican branch only, combined with a heredi-
tary aristocracy and monarchy, has, with equal impropriety, been frequently
placed on the list of republics. These examples, which are nearly as dissimi-
lar 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 dur-
ing good behaviour. 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 favoured 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 honourable 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 gov-
ernment in the United States, as well as every other popular government that
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No. 39
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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 ofthe co-ordinate branches ofthe 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 de-
partments, 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 re-
tain their offices by the firm tenure of good behaviour.
On comparing the constitution planned by the convention, with the stan-
dard here fixed, we perceive at once, that it is, in the most rigid sense, con-
formable to it. The house ofrepresentatives, like that ofone 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 ofMaryland,
derives its appointment indirectly from the people. The president is indi-
rectly 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 the state constitutions. The house
ofrepresentatives 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 ofMaryland; and but two more than that of the senates ofNew 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 ofthe states, however, no explicit provision is made for
the impeachment ofthe chiefmagistrate. And in Delaware and Virginia, he
is not impeachable till out ofoffice. The president ofthe 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 ofgood behaviour. The tenure ofthe ministerial offices generally,
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196
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 guarantee 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 confed-
eracy of sovereign states; instead of which, they have framed a national gov-
ernment, 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 ob-
jection 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 in-
quire 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 consti-
tution is to be founded on the assent and ratification of the people of Amer-
ica, 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 con-
stitution, will not be a national, but a federal act.
That it will be a federal, and not a national act, as these terms are under-
stood by the objectors, the act of the people, as forming so many independent
The Federalist
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No. 39
197
states, not as forming one aggregate nation, is obvious from this single con-
sideration, 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 co-
equal 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 alloted to them are in a com-
pound ratio, which considers them partly as distinct and co-equal 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 co-equal 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, by the adversaries of the plan of the con-
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The Federalist
198
vention, supposed to consist in this, that in the former, the powers operate
on the political bodies composing the confederacy, in their political capaci-
ties; in the latter, on the individual citizens composing the nation, in their in-
dividual 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 contro-
versies to which states may be parties, they must be viewed and proceeded
against in their collective and political capacities only. But the operation of
the government on the people in their individual capacities, in its ordinary
and most essential proceedings, will, on the whole, in the sense of its oppo-
nents, designate it in this relation, a national government.
But if the government be national, with regard to the operation of its pow-
ers, it changes its aspect again, when we contemplate it in relation to the ex-
tent 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 controled, directed, or abolished by it at pleasure. In the latter, the local
or municipal authorities form distinct and independent portions of the su-
premacy, no more subject, within their respective spheres, to the general au-
thority, 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 be-
tween 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 ofthe 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.
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No. 40
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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 ofthe people ofthe 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 num-
ber of states sufficient, it loses again the federal, and partakes of the national
character.
The proposed constitution, therefore, even when tested by the rules laid
down by its antagonists, 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
by James Madison
The same objection further examined
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 con-
stituents. As all of these, however, had reference, either to the recommenda-
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The Federalist
200
tion from the meeting at Annapolis, in September, 1786, or to that from con-
gress, in February, 1787, it will be sufficient to recur to these particular acts.
The act from Annapolis recommends the “appointment of commis-
sioners to take into consideration the situation of the United States; to devise
such further provisions, as shall appear to them necessary to render the con-
stitution 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 leg-
islature 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 rem-
edy which, several of the states, and particularly the state of New York, by ex-
press 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 ofcongress, it is expedient, that on the
2d Monday in May next, a convention ofdelegates, who shall have been
appointed by the several states, be held at Philadelphia, for the sole and ex-
press purpose of revising the articles of confederation, and reporting to con-
gress and the several legislatures, such alterations and provisions therein, as
shall, when agreed to in congress, and confirmed by the states, render the fed-
eral constitution adequate to the exigencies of government, and the preservation
of the union.”
From these two acts, it appears, 1st, that the object of the convention was
to establish, in these states, a firm national government; 2d, that this govern-
ment was to be such as would be adequate to the exigencies of government, and
the preservation of the union; 3d, that these purposes were to be effected by
alterations and provisions in the articles of confederation, as it is expressed in
the act ofcongress; or by such further provisions as should appear necessary,
as it stands in the recommendatory act from Annapolis; 4th. that the alter-
ations 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.
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No. 40
201
From a comparison, and fair construction, of these several modes of ex-
pression, is to be deduced the authority under which the convention acted.
They were to frame a national government, adequate to the exigencies of gov-
ernment, 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 conven-
tion, were irreconcileably at variance with each other; that a national and
adequate government could not possibly, in the judgment of the convention,
be effected by alterations and provisions in the articles of confederation; which
part of the definition ought to have been embraced, and which rejected?
Which was the more important; which the less important part? Which the
end; which the means? Let the most scrupulous expositors ofdelegated
powers; let the most inveterate objectors against those exercised by the con-
vention, answer these questions. Let them declare, whether it was ofmost
importance to the happiness of the people of America, that the articles of
confederation should be disregarded, and an adequate government be pro-
vided, and the union preserved; or that an adequate government should be
omitted, and the articles of confederation preserved. Let them declare,
whether the preservation of these articles was the end, for securing which a
reform of the government was to be introduced as the means; or whether
the establishment of a government, adequate to the national happiness, was
the end at which these articles themselves originally aimed, and to which they
ought, as insufficient means, to have been sacrificed.
But is it necessary to suppose, that these expressions are absolutely irrec-
oncileable to each other; that no alterations or provisions in the articles of the
confederation, could possibly mould them into a national and adequate gov-
ernment; into such a government as has been proposed by the convention?
No stress, it is presumed, will, in this case, be laid on the title; a change of
that could never be deemed an exercise of ungranted power. Alterations in
the body of the instrument are expressly authorized. New provisions therein
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The Federalist
202
are also expressly authorized. Here then is a power to change the title; to
insert new articles; to alter old ones. Must it ofnecessity be admitted, that
this power is infringed, so long as a part of the old articles remain? Those
who maintain the affirmative, ought at least to mark the boundary between
authorized and usurped innovations; between that degree of change which
lies within the compass of alterations and further provisions, and that which
amounts to a transmutation of the government. Will it be said, that the alter-
ations ought not to have touched the substance of the confederation? The
states would never have appointed a convention with so much solemnity, nor
described its objects with so much latitude, if some substantial reform had
not been in contemplation. Will it be said, that the fundamental principles of
the confederation were not within the purview of the convention, and ought
not to have been varied? I ask, what are these principles? Do they require, that
in the establishment ofthe constitution, the states should be regarded as
distinct and independent sovereigns? They are so regarded by the constitu-
tion 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 legis-
latures; and under the confederation, the delegates to congress may all be
appointed immediately by the people; and in two states* are actually so ap-
pointed. 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 govern-
ment 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 ofland, 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,
*Connecticut and Rhode Island.
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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 recom-
mended 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 in-
novation? 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 ofenlargement, which gives to the new
system the aspect of an entire transformation of the old.
In one particular, it is admitted, that the convention have departed from
the tenor of their commission. Instead of reporting a plan requiring the
confirmation of all the states, they have reported a plan, which is to be con-
firmed, 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 cor-
ruption 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 honour and prosperity of his country. As this
objection, therefore, has been in a manner waved by those who have criti-
cised the powers of the convention, I dismiss it without further observation.
No. 40
203
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The Federalist
204
The third point to be inquired into is, how far considerations of duty aris-
ing out of the case itself, could have supplied any defect of regular authority.
In the preceding inquiries, the powers of the convention have been ana-
lyzed and tried with the same rigour, 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 ab-
solutely 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 ofevery 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
ofthe 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, ofrecommending 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 va-
riety of instances, assumptions by congress, not only of recommendatory,
but ofoperative powers, warranted in the public estimation, by occasions
and objects infinitely less urgent than those by which their conduct was to be
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*Declaration ofIndependence.
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 transcen-
dent and precious right of the people to “abolish or alter their governments
as to them shall seem most likely to effect their safety and happiness;”* since
it is impossible for the people spontaneously and universally, to move in
concert towards their object: and it is therefore essential, that such changes
be instituted by some informal and unauthorized propositions, made by some
patriotic and respectable citizen, or number of citizens. They must have rec-
ollected, that it was by this irregular and assumed privilege, ofproposing
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 illtimed scruples,
no zeal for adhering to ordinary forms, were any where seen, except in those
who wished to indulge, under these masks, their secret enmity to the sub-
stance 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 dis-
approbation of this supreme authority would destroy it for ever: its appro-
bation blot out all 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 recommen-
dation 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 coun-
try, 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 ofdelay, and the hazard ofevents; let me ask
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The Federalist
206
the man, who can raise his mind to one elevated conception, who can
awaken in his bosom one patriotic emotion, what judgment ought to have
been pronounced by the impartial world, by the friends of mankind, by every
virtuous citizen, on the conduct and character of this assembly? Or if there
be a man whose propensity to condemn is susceptible of no control, let me
then ask what sentence he has in reserve for the twelve states who usurped the
power of sending deputies to the convention, a body utterly unknown to their
constitutions; for congress, who recommended the appointment of this
body, equally unknown to the confederation; and for the state of New York,
in particular, who 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 commis-
sion, 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 ad-
vice 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 ex-
ceeded 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, ifit 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
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207
No. 41
by James Madison
General view of the powers proposed to be vested in the union
The constitution proposed by the convention, may be considered under
two general points ofview. 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 ofthe 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 ofthem be danger-
ous 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 candour to the ar-
guments employed against the extensive powers of the government, that the
authors of them have very little considered how far these powers were neces-
sary means of attaining a necessary end. They have chosen rather to dwell on
the inconveniencies which must be unavoidably blended with all political ad-
vantages; 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 ofthe 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, ifnot ofthe lesser evil,
at least of the greater, not the perfect good; and that in every political
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The Federalist
208
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. Cer-
tain 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 so-
ciety. 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 in-
volved 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 in-
deed seems to be so obvious and conclusive, as scarcely to justify such a dis-
cussion in any place. With what colour 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.
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No. 41
209
How could a readiness for war in time of peace be safely prohibited, un-
less we could prohibit in like manner, the preparations and establishments of
every hostile nation? The means of security can only be regulated by the
means and the danger of attack. They will in fact be ever determined by these
rules, and by no others. It is in vain to oppose constitutional barriers to the
impulse of self-preservation. It is worse than in vain: because it plants in the
constitution itself necessary usurpations of power, every precedent of which
is a germ of unnecessary and multiplied repetitions. If one nation maintains
constantly a disciplined army, ready for the service of ambition or revenge, it
obliges the most pacific nations, who may be within the reach of its enter-
prises, to take corresponding precautions. The fifteenth century was the un-
happy epoch of military establishments in time of peace. They were intro-
duced 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 na-
tion, except France, now to disband its peace establishment, the same event
might follow. The veteran legions of Rome were an overmatch for the undis-
ciplined valour of all other nations, and rendered her mistress of the world.
Not less true is it, that the liberties ofRome proved the final victim to her
military triumphs, and that the liberties ofEurope, as far as they ever existed,
have, with few exceptions, been the price of her military establishments. A
standing force, therefore, is a dangerous, at the same time that it may be a
necessary, provision. On the smallest scale, it has its inconveniencies. On an
extensive scale, its consequences may be fatal. On any scale, it is an object of
laudable circumspection and precaution. A wise nation will combine all these
considerations; and whilst it does not rashly preclude itself from any resource
which may become essential to its safety, will exert all its prudence in dimin-
ishing both the necessity and the danger of resorting to one, which may be
inauspicious to its liberties.
The clearest marks of this prudence are stamped on the proposed consti-
tution. The union itself, which it cements and secures, destroys every pretext
for a military establishment which could be dangerous. America united, with
a handful of troops, or without a single soldier, exhibits a more forbidding
posture to foreign ambition, than America disunited, with a hundred thou-
sand 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. Be-
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The Federalist
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ing rendered, by her insular situation, and her maritime resources, impreg-
nable to the armies of her neighbours, 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 ofthe United States from the powerful
nations ofthe world, gives them the same happy security. A dangerous es-
tablishment 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 in-
debted for this advantage to their union alone. The moment of its dissolution
will be the date of a new order of things. The fears of the weaker, or the am-
bition 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 conti-
nent of Europe. It will present liberty every w[h]ere crushed between stand-
ing 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 quar-
ter 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 col-
oured, 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 precau-
tion 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
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No. 41
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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 dis-
cretion to one year? Does the American impose on the congress appropri-
ations 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 leg-
islature 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 pro-
portion of the people; where the electors are so corrupted by the representa-
tives, and the representatives so corrupted by the crown, the representative
body can possess a power to make appropriations to the army for an in-
definite term, without desiring, or without daring, to extend the term be-
yond 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 a dis-
cretion 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 at-
tention to that important subject; and has led to investigations which must
terminate in a thorough and universal conviction, not only that the constitu-
tion has provided the most effectual guards against danger from that quarter,
but that nothing short of a constitution fully adequate to the national de-
fence, and the preservation of the union, can save America from as many
standing armies, as it may be split into states or confederacies; and from such
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The Federalist
212
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 ofthe 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 mari-
time 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 insu-
lar 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 per-
fidious government against our liberties.
The inhabitants of the Atlantic frontier, are all of them deeply interested
in this provision for naval protection. 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 govern-
ment 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 ofa general government which now exists; and iftheir single
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No. 41
213
resources were equal to the task of fortifying themselves against the danger,
the objects to be protected would be almost consumed by the means of pro-
tecting them.
The power of regulating and calling forth the militia, has been already
sufficiently vindicated and explained.
The power oflevying and borrowing money, being the sinew of that which
is to be exerted in the national defence, is properly thrown into the same class
with it. This power, also, has been examined already with much attention,
and has, I trust, been clearly shown to be necessary, both in the extent and
form given to it by the constitution. I will 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, ifwe do not call to mind in our calculations, that the
extent of revenue drawn from foreign commerce, must vary with the varia-
tions, both in the extent and the kind of imports; and that these variations do
not correspond with the progress of population, which must be the general
measure of the public wants. As long as agriculture continues the sole field of
labour, 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 boun-
ties, 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
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The Federalist
214
could be given of the distress under which these writers labour 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 colour 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 colour can the objection have, when a specification of the objects
alluded to by these general terms, immediately follows; and is not even sepa-
rated by a longer pause than a semicolon? If the different parts of the same in-
strument ought to be so expounded, as to give meaning to every part which
will bear it; shall one part of the same sentence be excluded altogether from
a share in the meaning; and shall the more doubtful and indefinite terms be
retained in their full extent, and the clear and precise expressions be denied
any signification whatsoever? For what purpose could the enumeration of
particular powers be inserted, if these and all others were meant to be in-
cluded in the preceding general power? Nothing is more natural or 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 lan-
guage used by the convention, is a copy from the articles of confederation.
The objects of the union among the states, as described in article 3d, are,
“their common defence, security of their liberties, and mutual and general
welfare.” The terms of article 8th, are still more identical: “All charges of war,
and all other expenses, that shall be incurred for the common defence or gen-
eral welfare, and allowed by the United States in congress, shall be defrayed
out of a common treasury, &c.” A similar language again occurs in article 9.
Construe either of these articles by the rules which would justify the con-
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No. 42
215
struction 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 expres-
sions, and disregarding the specifications which ascertain and limit their im-
port, 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
by James Madison
The same view continued
The second class of powers lodged in the general government, consists of
those which regulate the intercourse with foreign nations, to wit: to make
treaties; to send and receive ambassadors, other public ministers, and con-
suls; to define and punish piracies and felonies committed on the high seas,
and offences against the law of nations; to regulate foreign commerce, in-
cluding 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 confeder-
ation; with this difference only, that the former is disembarrassed by the plan
of the convention of an exception, under which treaties might be substan-
tially frustrated by regulations of the states; and that a power of appointing
and receiving “other public ministers and consuls,” is expressly and very
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The Federalist
216
properly added to the former provision concerning ambassadors. The term
ambassador, if taken strictly, as seems to be required by the second of the ar-
ticles of confederation, comprehends the highest grade only of public minis-
ters; 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 expe-
dient, 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 ap-
pointment of consuls, whose functions are connected with commerce, the
admission of foreign consuls may fall within the power of making commer-
cial 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 9th 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 no where provided for. A supply of the omis-
sion, 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 unob-
served 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 favour
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 propri-
ety to the general government; and is a still greater improvement on the ar-
ticles 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 farther than to the establishment of courts for the trial of these of-
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fences. The definition of piracies might, perhaps, without inconveniency, be
left to the law of nations; though a legislative definition of them is found in
most municipal codes. A definition of felonies on the high seas, is evidently
requisite. Felony is a term of loose signification, even in the common law of
England; and of various import in the statute law of that kingdom. But nei-
ther the common, nor the statute law ofthat, or ofany 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 dis-
honourable 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 ofthis 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 importa-
tion ofslaves, had not been postponed until the year 1808, or rather, that
it had been suffered to have immediate operation. But it is not difficult to
account, either for this restriction on the general government, or for the
manner in which the whole clause is expressed. It ought to be considered as
a great point gained in favour of humanity, that a period of twenty years may
terminate for ever within these states, a traffic which has so long and so loudly
upbraided the barbarism of modern policy; that within that period, it will re-
ceive a considerable discouragement from the federal government, and may
be totally abolished, by a concurrence of the few states which continue the
unnatural traffic, in the prohibitory example which has been given by so great
a majority of the union. Happy would it be for the unfortunate Africans, if
an equal prospect lay before them, of being redeemed from the oppressions
of their European brethren!
Attempts have been made to pervert this clause into an objection against
the constitution, by representing it on one side, as a criminal toleration of an
illicit practice; and on another, as calculated to prevent voluntary and bene-
ficial emigrations from Europe to America. I mention these misconstruc-
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218
tions, 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 con-
duct their opposition to the proposed government.
The powers included in the third class, are those which provide for the
harmony and proper intercourse among the states.
Under this head, might be included the particular restraints imposed
on the authority of the states, and certain powers of the judicial department;
but the former are reserved for a distinct class, and the latter will be par-
ticularly examined, when we arrive at the structure and organization of the
government.
I shall confine myself to a cursory review of the remaining powers com-
prehended under this third description, to wit: to 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 an uniform rule of naturalization, and
uniform laws of bankruptcy; to prescribe the manner in which the public
acts, records, and judicial proceedings ofeach 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 these 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 with-
out 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 ex-
port 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,
as 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 for-
mer. We may be assured, by past experience, that such a practice would be
introduced by future contrivances: and both by that and a common knowl-
edge of human affairs, that it would nourish unceasing animosities, and not
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improbably terminate in serious interruptions of the public tranquillity. To
those who do not view the question through the medium ofpassion or of
interest, the desire ofthe commercial states to collect in any form, an indi-
rect revenue from their uncommercial neighbours, must appear not less im-
politic than it is unfair; since it would stimulate the injured party, by re-
sentment 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 clamours of an impatient avidity for immediate
and immoderate gain.
The necessity of a superintending authority over the reciprocal trade of
confederated states, has been illustrated by other examples as well as our own.
In Switzerland, where the union is so very slight, each canton is obliged to
allow to merchandises, a passage through its jurisdiction into other cantons,
without an augmentation of the tolls. In Germany, it is a law of the empire,
that the princes and states shall not lay tolls or customs on bridges, rivers, or
passages, without the consent of the emperor and 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 pro-
duced there the mischiefs which have been foreseen here. Among the re-
straints imposed by the union of the Netherlands, on its members, one is,
that they shall not establish imposts disadvantageous to their neighbours,
without the general permission.
The regulation of commerce with the Indian tribes, is very properly un-
fettered from two limitations in the articles of confederation, which render
the provision obscure and contradictory. The power is there restrained to
Indians, not members of any of the states, and is not to violate or infringe the
legislative right of any state within its own limits. What description of Indi-
ans 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 anthority,
without so far intruding on the internal rights of legislation, is absolutely
incomprehensible. This is not the only case, in which the articles of confed-
eration have inconsiderately endeavored to accomplish impossibilities; to
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220
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 con-
stitution 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 cur-
rent coin, is submitted of course to that authority which is to secure the value
ofboth.
The regulation ofweights 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 4th 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, &c.” There is a confusion of
language here, which is remarkable. Why the terms free inhabitants, are used
in one part of the article; free citizens in another, and people in another; or
what was meant by superadding “to all privileges and immunities offree
citizens,” . . . “all the privileges of trade and commerce,” cannot easily be de-
termined. It seems to be a construction scarcely avoidable, however, that
those who come under the denomination of free inhabitants of a state, al-
though 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 par-
ticular 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
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221
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 confers all the rights of citizenship; in an-
other, qualifications of greater importance are required. An alien, therefore,
legally incapacitated for certain rights in the latter, may, by previous resi-
dence 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 ju-
risdiction of the other.
We owe it to mere casualty, that very serious embarrassments on this sub-
ject have been hitherto escaped. By the laws of several states, certain descrip-
tions ofaliens, who had rendered themselves obnoxious, were laid under
interdicts inconsistent, not only with the rights of citizenship, but with the
privileges of residence. What would have been the consequence, if such per-
sons, by residence, or otherwise, had acquired the character of citizens under
the laws of another state, and then asserted their rights as such, both to resi-
dence and citizenship, within the state proscribing them? Whatever the legal
consequences might have been, other consequences would probably have re-
sulted of too serious a nature, not to be provided against. The new constitu-
tion 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 an uniform rule of natural-
ization throughout the United States.
The power of establishing uniform laws of bankruptcy, is so intimately
connected with the regulation of commerce, and will prevent so many frauds
where the parties or their property may lie, or be removed into different
states, that the expediency of it seems not likely to be drawn into question.
The power of prescribing, by general laws, the manner in which the pub-
lic 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 improve-
ment 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 impor-
tance 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 jus-
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The Federalist
222
tice, may be suddenly and secretely 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
by James Madison
The same view continued
The fourth class comprises the following miscellaneous powers:
1. A power to “promote the progress of science and useful arts, by secur-
ing 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 copy-right of au-
thors has been solemnly adjudged in Great Britain, to be a right at common
law. The right to useful inventions, seems with equal reason to belong to the
inventors. The public good fully coincides in both cases with the claims of
individuals. The states cannot separately make effectual provision for either
of the cases, and most of them have anticipated the decision of this point, by
laws passed at the instance of congress.
2. “To exercise exclusive legislation in all cases whatsoever, over such dis-
trict (not exceeding ten miles square) as may by cession of particular states,
and the acceptance of congress, become the seat of the government of the
United States; and to exercise like authority over all places purchased by the
consent of the legislature of the state, in which the same shall be, for the erec-
tion of forts, magazines, arsenals, dock yards, and other needful buildings.”
The indispensable necessity of complete authority at the seat of govern-
ment, carries its own evidence with it. It is a power exercised by every legis-
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lature of the union, I might say of the world, by virtue of its general su-
premacy. Without it, not only the public authority might be insulted, and its
proceedings be interrupted with impunity, but a dependence of the members
of the general government on the state comprehending the seat of the gov-
ernment, for protection in the exercise of their duty, might bring on the na-
tional councils an imputation of awe or influence, equally dishonourable to
the government and dissatisfactory to the other members of the confederacy.
This consideration has the more weight, as the gradual accumulation of
public improvements at the stationary residence of the government, would
be both too great a public pledge to be left in the hands of a single state, and
would create so many obstacles to a removal of the government, as still fur-
ther to abridge its necessary independence. The extent of this federal district,
is sufficiently circumscribed to satisfy every jealousy of an opposite nature.
And as it is to be appropriated to this use, with the consent of the state ced-
ing 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 in-
ducements 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 author-
ity 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, &c. 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.
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.”
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224
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 governments, 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 con-
gress, even in punishing it, from extending the consequences of guilt beyond
the person of its author.
4. “To admit new states into the union; but no new state shall be formed
or erected within the jurisdiction ofany other state; nor any state be
formed by the junction of two or more states, or parts of states, without the
consent of the legislatures of the states concerned, as well as of the congress.”
In the articles of confederation, no provision is found on this important
subject. Canada was to be admitted of right, on her joining in the measures
of the United States; and the other colonies, by which were evidently meant,
the other British colonies, at the discretion of nine states. The eventual estab-
lishment 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 pro-
priety, therefore, has the new system supplied the defect. The general pre-
caution, that no new states shall be formed, without the concurrence of the
federal authority, and that of the states concerned, is consonant to the prin-
ciples which ought to govern such transactions. The particular precaution
against the erection of new states, by the partition of a state without its con-
sent, quiets the jealousy of the larger states; as that of the smaller is quieted by
a like precaution, against a junction of states without their consent.
5. “To dispose of, and make all needful rules and regulations, respecting
the territory or other property, belonging to the United States, with a proviso,
that nothing in the constitution shall be so construed, as to prejudice any
claims of the United States, or of any particular state.”
This is a power of very great importance, and required by considerations,
similar to those which show the propriety of the former. The proviso an-
nexed, 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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No. 43
225
6. “To guarantee to every state in the union a republican form of gov-
ernment; to protect each ofthem 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 re-
publican members, the superintending government ought clearly to possess
authority to defend the system against aristocratic or monarchical innova-
tions. The more intimate the nature of such an union may be, the greater in-
terest have the members in the political institutions of each other; and the
greater right to insist, that the forms of government under which the com-
pact was entered into, should be substantially maintained.
But a right implies a remedy; and where else could the remedy be de-
posited, than where it is deposited by the constitution? Governments of dis-
similar principles and forms, have been found less adapted to a federal coali-
tion of any sort, than those of a kindred nature. “As the confederate republic
of Germany,” says Montesquieu, “consists of free cities and petty states, sub-
ject 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 Amphyctions.” 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 govern-
ments, without the concurrence ofthe 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 su-
perfluity 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 inter-
pose by virtue of this constitutional authority, it will be of course bound to
pursue the authority. But the authority extends no farther than to a guaran-
tee of a republican form of government, which supposes a pre-existing gov-
ernment 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
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The Federalist
226
republican forms, they have a right to do so, and to claim the federal guaran-
tee 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 com-
posing it. The latitude of the expression here used, seems to secure each state
not only against foreign hostility, but against ambitious or vindictive enter-
prises of its more powerful neighbours. 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 speak-
ing, 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 re-
cent and well known event among ourselves has warned us to be prepared for
emergencies of a like nature.
At first view, it might seem not to square with the republican theory, to
suppose, either that a majority have not the right, or that a minority will have
the force to subvert a government; and consequently, that the federal inter-
position 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 major-
ity 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 cer-
tain parts of the state constitutions, which are so interwoven with the federal
constitution, that a violent blow cannot be given to the one, without com-
municating 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 vio-
lence 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 ob-
stinate contest. The existence of a right to interpose, will generally prevent the
necessity of exerting it.
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Is it true, that force and right are necessarily on the same side in repub-
lican governments? May not the minor party possess such a superiority of
pecuniary resources, of military talents and experience, or of secret succours
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 chimeri-
cal 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 ofsuffrage? I take no notice ofan un-
happy 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 estab-
lished for the universal peace of mankind.
Should it be asked, what is to be the redress for an insurrection pervading
all the states, and comprising a superiority of the entire force, though not a
constitutional right? The answer must be, that such a case, as it would be
without the compass of human remedies, so it is fortunately not within the
compass of human probability; and that it is a sufficient recommendation of
the federal constitution, that it diminishes the risk of a calamity, for which no
possible constitution can provide a cure.
Among the advantages of a confederate republic, enumerated by Montes-
quieu, an important one is, “that should a popular insurrection happen in
one of the states, the others are able to quell it. Should abuses creep into one
part, they are reformed by those that remain sound.”
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7. “To consider all debts contracted, and engagements entered into, before
the adoption of this constitution, as being no less valid against the United
States under this constitution, than under the confederation.”
This can only be considered as a declaratory proposition; and may have
been inserted, among other reasons, for the satisfaction of the foreign credi-
tors 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 dis-
solving its moral obligations.
Among the lesser criticisms which have been exercised on the constitu-
tion, it has been remarked, that the validity of engagements ought to have
been asserted in favour 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 au-
thors of this discovery may be told, what few others need 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 ar-
ticle is merely declaratory, the establishment of the principle in one case, is
sufficient for every case. They may be further told, that every constitution
must limit its precautions to dangers that are not altogether imaginary; and
that no real danger can exist that the government would dare, with, or even
without, this constitutional declaration before it, to remit the debts justly due
to the public, on the pretext here condemned.
8. “To provide for amendments to be ratified by three-fourths of the states,
under two exceptions only.”
That useful alterations will be suggested by experience, could not but be
foreseen. It was requisite, therefore, that a mode for introducing them should
be provided. The mode preferred by the convention, seems to be stamped
with every mark of propriety. It guards equally against that extreme facility,
which would render the constitution too mutable; and that extreme diffi-
culty, which might perpetuate its discovered faults. It moreover equally en-
ables 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 favour of the equality of suffrage in the senate, was
probably meant as a palladium to the residuary sovereignty of the states, im-
plied and secured by that principle ofrepresentation in one branch ofthe
legislature; and was probably insisted on by the states particularly attached to
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that equality. The other exception must have been admitted on the same con-
siderations which produced the privilege defended by it.
9. “The ratification of the conventions of nine states, shall be sufficient for
the establishment of this constitution between the states ratifying the same.”
This article speaks for itself. The express authority of the people alone,
could give due validity to the constitution. To have required the unanimous
ratification of the thirteen states, would have subjected the essential interests
of the whole, to the caprice or corruption of a single member. It would have
marked a want of foresight in the convention, which our own experience
would have rendered inexcusable.
Two questions of a very delicate nature present themselves on this occa-
sion. 1. On what principle the confederation, which stands in the solemn
form of a compact among the states, can be superseded without the unani-
mous 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 neces-
sity 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 happi-
ness of society, are the objects at which all political institutions aim, and to
which all such institutions must be sacrificed. Perhaps also an answer may be
found without searching beyond the principles of the compact itself. It has
been heretofore noted among the defects of the confederation, that in many
of the states, it had received no higher sanction than a mere legislative ratifi-
cation. The principle of reciprocality seems to require, that its obligation on
the other states should be reduced to the same standard. A compact between
independent sovereigns, founded on acts of legislative authority, can pretend
to no higher validity than a league or treaty between the parties. It is an es-
tablished 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 deli-
cate truths, for a justification for dispensing with the consent of particular
states to a dissolution ofthe federal pact, will not the complaining parties
find it a difficult task to answer the multiplied and important infractions, with
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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 assent-
ing 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 ofa 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 re-union, will, it is hoped, not urge in
vain moderation on one side, and prudence on the other.
publius
No. 44
by James Madison
The same view continued and concluded
A fifth class of provisions in favour 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 ofthe existing articles ofunion; and for reasons which need no expla-
nation, is copied into the new constitution. The prohibition ofletters 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
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states after a declaration of war; according to the latter, these licenses must
be obtained, as well during the war, as previous to its declaration, from the
government of the United States. This alteration is fully justified, by the ad-
vantage 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 favour 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 circu-
lating 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 con-
fidence between man and man; on the necessary confidence in the public
councils; on the industry and morals of the people, and on the character of
republican government, constitutes an enormous debt against the states,
chargeable with this unadvised measure, which must long remain unsatis-
fied; 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
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The Federalist
232
states themselves. The subjects of foreign powers might suffer from the same
cause, and hence the union be discredited and embroiled by the indiscre-
tion 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 ofdebts, 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 ofthe 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 favour of personal secu-
rity 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
with indignation, that sudden changes, and legislative interferences, in cases
affecting personal rights, become jobs in the hands of enterprising and in-
fluential 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 inter-
ference 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 in-
dustry, 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 ex-
ecuting its inspection laws, and the neat 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 con-
trol of the congress. No state shall, without the consent of congress, lay any
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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 en-
forced by all the arguments which prove the necessity of submitting the
regulation of trade to the federal councils. It is needless, therefore, to remark
further on this head, than that the manner in which the restraint is qualified,
seems well calculated at once to secure to the states a reasonable discretion
in providing for the conveniency of their imports and exports, and to the
United States, a reasonable check against the abuse ofthis discretion. The
remaining particulars ofthis 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 neces-
sary and proper for carrying into execution the foregoing powers, and all
other powers vested by this constitution in the government of the United
States or in any department or officer thereof.”
Few parts of the constitution have been assailed with more intemperance
than this; yet on a fair investigation of it, as has been elsewhere shown, 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 convention might have
taken on this subject. They might have copied the second article of the exist-
ing 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 ofthem, by specifying
the powers excepted from the general definition: they might have been alto-
gether silent on the subject; leaving these necessary and proper powers, to
construction and inference.
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The Federalist
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Had the convention taken the first method of adopting the second article
of confederation, it is evident that the new congress would be continually ex-
posed, as their predecessors have been, to the alternative of construing the
term “expressly” with so much rigour, 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 it-
self still more distressed with the alternative of betraying the public interest
by doing nothing; or of violating the constitution by exercising powers in-
dispensably necessary and proper; but at the same time, not expressly granted.
Had the convention attempted a positive enumeration ofthe 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 fur-
ther objection; that every defect in the enumeration, would have been equiva-
lent to a positive grant ofauthority. 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, be-
cause the enumeration would of course select such as would be least neces-
sary 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
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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 mis-
construe this part ofthe constitution, and exercise powers not warranted
by its true meaning? I answer, the same as if they should misconstrue or en-
large any other power vested in them; as if the general power had been re-
duced 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 ef-
fect 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 in-
novation, to sound the alarm to the people, and to exert their local influence
in effecting a change of federal representatives. There being no such inter-
mediate body between the state legislatures and the people, interested in
watching the conduct of the former, violations of the state constitution are
more likely to remain unnoticed and unredressed.
2. “This constitution, and the laws of the United States which shall be
made in pursuance thereof, and all treaties made, or which shall be made,
under the authority of the United States, shall be the supreme law of the land,
and the judges in every state shall be bound thereby, any thing in the consti-
tution 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
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The Federalist
236
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 favour.
In the first place, as these constitutions invest the state legislatures with
absolute sovereignty, in all cases not excepted by the existing articles of con-
federation, all the authorities contained in the proposed constitution, so far
as they exceed those enumerated in the confederation, would have been an-
nulled, 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 ex-
pressly 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 impor-
tance to the states, would interfere with some, and not with other constitu-
tions, 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 govern-
ment founded on an inversion ofthe fundamental principles ofall gov-
ernment; it would have seen the authority of the whole society every where
subordinate to the authority of the parts; it would have seen a monster, in
which the head was under the direction of the members.
3. “The senators and representatives, and the members of the several state
legislatures; and all executive and judicial officers, both of the United States
and the several states, shall be bound by oath or affirmation, to support this
constitution.”
It has been asked, why it was thought necessary, that the state magistracy
should be bound to support the federal constitution, and unnecessary that a
like oath should be imposed on the officers of the United States, in favour of
the state constitutions?
Several reasons might be assigned for the distinctions. I content myself
with one, which is obvious and conclusive. The members of the federal gov-
ernment 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 elec-
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237
tion ofthe 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,
for ever 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 gov-
ernment; and are brought to this undeniable conclusion, that no part of the
power is unnecessary or improper, for accomplishing the necessary objects
ofthe union. The question, therefore, whether this amount ofpower shall
be granted or not, resolves itself into another question, whether or not a gov-
ernment commensurate to the exigencies of the union, shall be established;
or, in other words, whether the union itself shall be preserved.
publius
No. 45
by James Madison
A further discussion of the supposed danger from
the powers of the union, to the state governments
Having shown, that no one of the powers transferred to the federal govern-
ment is unnecessary or improper, the next question to be considered is,
whether the whole mass of them will be dangerous to the portion of author-
ity left in the several states.
The adversaries to the plan of the convention, instead of considering in
the first place, what degree of power was absolutely necessary for the pur-
poses 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,
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The Federalist
238
be essential to the security ofthe people ofAmerica against foreign danger;
ifit be essential to their security against contentions and wars among the
different states; if it be essential to guard them against those violent and op-
pressive factions, which imbitter 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 ofthe people ofAmerica, 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 governments of the individual states,
that particular municipal establishments, might enjoy a certain extent of
power, and be arrayed with certain dignities and attributes of sovereignty?
We have heard of the impious doctrine in the old world, that the people were
made for kings, not kings for the people. Is the same doctrine to be revived
in the new, in another shape, that the solid happiness of the people is to be
sacrificed to the views of political institutions of a different form? It is too
early for politicians to presume on our forgetting that the public good, the
real welfare of the great body of the people, is the supreme object to be pur-
sued; 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 con-
vention adverse to the public happiness, my voice would be, reject the plan.
Were the union itself inconsistent with the public happiness, it would be,
abolish the union. In like manner, as far as the sovereignty of the states can-
not be reconciled to the happiness of the people, the voice of every good citi-
zen must be, let the former be sacrificed to the latter. How far the sacrifice is
necessary, has been shown. How far the unsacrificed residue will be endan-
gered, is the question before us.
Several important considerations have been touched in the course of these
papers, which discountenance the supposition, that the operation of the fed-
eral 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.
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We have seen in all the examples ofancient and modern confederacies,
the strongest tendency continually betraying itself in the members, to despoil
the general government ofits 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 consider-
ation, 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 degen-
erated, or tended to degenerate, into one consolidated government. On the
contrary, we know that the ruin ofone ofthem proceeded from the inca-
pacity of the federal authority to prevent the dissentions, and finally the dis-
union of the subordinate authorities. These cases are the more worthy of our
attention, as the external causes by which the component parts were pressed
together, were much more numerous and powerful than in our case: and,
consequently, less powerful ligaments within would be sufficient to bind the
members to the head, and to each other.
In the feudal system, we have seen a similar propensity exemplified.
Notwithstanding the want of proper sympathy in every instance between the
local sovereigns and the people, and the sympathy in some instances between
the general sovereign and the latter; it usually happened, that the local sover-
eigns 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 Eu-
rope 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 measures of each other.
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The state governments may be regarded as constituent and essential parts
of the federal government; whilst the latter is no wise essential to the opera-
tion or organization of the former. Without the intervention of the state leg-
islatures, 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
favour of the state governments, and must consequently feel a dependence,
which is much more likely to beget a disposition too obsequious, than too
overbearing towards them. On the other side, the component parts of the
state governments will in no instance be indebted for their appointment to
the direct agency of the federal government, and very little, if at all, to the
local influence of its members.
The number of individuals employed under the constitution of the United
States, will be much smaller than the number employed under the particular
states. There will consequently be less of personal influence on the side of the
former than of the latter. The members of the legislative, executive, and judi-
ciary 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 ofpeople, must exceed
beyond all proportion, both in number and influence, those of every de-
scription 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 mili-
tary 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 pro-
nounce the advantage ofthe states to be decisive. Ifthe 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 coun-
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No. 45
241
try, 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 supple-
mental purposes of revenue; that an option will then be given to the states to
supply their quotas by previous collections of their own; and that the even-
tual 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 in-
fluence would lie on the side of the state.
The powers delegated by the proposed constitution to the federal govern-
ment, are few and defined. Those which are to remain in the state gov-
ernments, are numerous and indefinite. The former will be exercised princi-
pally 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 im-
portant 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 pro-
portion 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 favour their ascendancy over the governments of the
particular states.
Ifthe new constitution be examined with accuracy and candour, it will
be found that the change which it proposes, consists much less in the addi-
tion of new powers to the union, than in the invigoration of its original
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The Federalist
242
powers. The regulation of commerce, it is true, is a new power; but that
seems to be an addition which few oppose, and from which no apprehen-
sions 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 re-
garded 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 re-
quire them of individual citizens; and the latter will be no more bound than
the states themselves have been, to pay the quotas respectively taxed on them.
Had the states complied punctually with the articles of confederation, or
could their compliance have been enforced by as peaceable means as may be
used with success towards single persons, our past experience is very far from
countenancing an opinion, that the state governments would have lost their
constitutional powers, and have gradually undergone an entire consolida-
tion. 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
by James Madison
The subject of the last paper resumed; with an examination
of the comparative means of influence of the federal
and state governments
Resuming the subject ofthe 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
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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 govern-
ments are in fact but different agents and trustees of the people, instituted
with different powers, and designated 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 uncontroled by any common
superior, in their efforts to usurp the authorities of each other. These gentle-
men must here be reminded of their error. They must be told, that the ulti-
mate authority, wherever the derivative may be found, resides in the people
alone; and that it will not depend merely on the comparative ambition or ad-
dress of the different governments, whether either, or which of them, will be
able to enlarge its sphere of jurisdiction at the expense of the other. Truth, no
less than decency, requires, that the event in every case, should be supposed
to depend on the sentiments and sanction of their common constituents.
Many considerations, besides those suggested on a former occasion, seem
to place it beyond doubt, that the first and most natural attachment of the
people, will be to the governments of their respective states. Into the admin-
istration ofthese, a greater number ofindividuals will expect to rise. From
the gift of these, a greater number of offices and emoluments will flow. By the
superintending care of these, all the more domestic and personal interests of
the people will be regulated and provided for. With the affairs of these, the
people will be more familiarly and minutely conversant: and with the mem-
bers 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 administra-
tion, though hitherto very defective, in comparison with what may be hoped
under a better system, had, during the war, and particularly whilst the inde-
pendent fund of paper emissions was in credit, an activity and importance as
great as it can well have, in any future circumstances whatever. It was engaged
too in a course of measures which had for their object the protection of every
thing that was dear, and the acquisition ofevery thing that could be desir-
able to the people at large. It was, nevertheless, invariably found, after the
No. 46
243
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The Federalist
244
transient enthusiasm for the early congresses was over, that the attention and
attachment of the people were turned anew to their own particular govern-
ments; that the federal council was at no time the idol of popular favour; 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 conse-
quence 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 admin-
istration, as will overcome all their antecedent propensities. And in that case,
the people ought not surely to be precluded from giving most of their con-
fidence 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 advan-
tageously administered.
The remaining points on which I propose to compare the federal and state
governments, are the disposition and the faculty they may respectively pos-
sess, 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 favour-
able to the states; whilst it will rarely happen, that the members of the state
governments will carry into the public councils, a bias in favour of the gen-
eral government. A local spirit will infallibly prevail much more in the mem-
bers of the congress, than a national spirit will prevail in the legislatures of the
particular states. Every one knows, that a great proportion of the errors com-
mitted by the state legislatures, proceeds from the disposition of the mem-
bers to sacrifice the comprehensive and permanent interests of the state, to
the particular and separate views ofthe counties or districts in which they
reside. And ifthey do not sufficiently enlarge their policy, to embrace the
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No. 46
245
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 respect-
ability 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 fed-
eral 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 acknowledgements of such as have had
a seat in that assembly, will inform us, that the members have but too fre-
quently displayed the character, rather of partizans of their respective states,
than of impartial guardians of a common interest; that where, on one occa-
sion, improper sacrifices have been made of local considerations to the ag-
grandizement of the federal government; the great interests of the nation
have suffered on an hundred, from an undue attention to the local preju-
dices, interests, and views of the particular states. I mean not by these reflec-
tions to insinuate, that the new federal government will not embrace a more
enlarged plan of policy, than the 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 gov-
ernments. The motives on the part of the state governments, to augment
their prerogatives by defalcations from the federal government, will be over-
ruled 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 na-
tional 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 op-
position 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
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The Federalist
246
could not be prevented or repaired, if at all, without the employment of
means which must always be resorted to with reluctance and difficulty. On
the other hand, should an unwarrantable measure of the federal government
be unpopular in particular states, which would seldom fail to be the case,
or even a warrantable measure be so, which may sometimes be the case, the
means of opposition to it are powerful and at hand. The disquietude of the
people; their repugnance, and perhaps refusal, to co-operate with the officers
of the union; the frowns of the executive magistracy of the state; the embar-
rassments created by legislative devices, which would often be added on such
occasions, would oppose, in any state, difficulties not to be despised; would
form, in a large state, very serious impediments; and where the sentiments of
several adjoining states happened to be in unison, would present obstruc-
tions which the federal government would hardly be willing to encounter.
But ambitious encroachments of the federal government, on the author-
ity ofthe state governments, would not excite the opposition ofa 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 combination, 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 offorce 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
ofthe 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 ofrepresentatives 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 prophecy the downfal of the state gov-
ernments, 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
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No. 46
247
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 trai-
tors 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 com-
putation, a standing army can be carried in any country, does not exceed one
hundredth part of the whole number of souls; or one twenty-fifth part of the
number able to bear arms. This proportion would not yield, in the United
States, an army of more than twenty-five or thirty thousand men. To these
would be opposed a militia amounting to near half a million of citizens with
arms in their hands, officered by men chosen from among themselves, fight-
ing 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 late successful re-
sistance 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 Ameri-
cans 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 sev-
eral 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 oflocal
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The Federalist
248
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 af-
firmed with the greatest assurance, that the throne of every tyranny in Europe
would be speedily overturned in spite ofthe legions which surround it. Let
us not insult the free and gallant citizens of America with the suspicion, that
they would be less able to defend the rights of which they would be in actual
possession, than the debased subjects of arbitrary power would be to rescue
theirs from the hands of their oppressors. Let us rather no longer insult them
with the supposition, that they can ever reduce themselves to the necessity of
making the experiment, by a blind and tame submission to the long train of
insidious measures which must precede and produce it.
The argument under the present head may be put into a very concise
form, which appears altogether conclusive. Either the mode in which the fed-
eral 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; which
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 re-
served to the individual states, as they are indispensably necessary to accom-
plish the purposes of the union; and that all those alarms which have been
sounded, of a meditated and consequential annihilation of the state govern-
ments, must, on the most favourable interpretation, be ascribed to the chi-
merical fears of the authors of them.
publius
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249
No. 47
by James Madison
The meaning of the maxim, which requires a separation
of the departments of power, examined and ascertained
Having reviewed the general form of the proposed government, and the gen-
eral mass of power allotted to it; I proceed to examine the particular struc-
ture 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 ad-
versaries 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 favour 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 dispro-
portionate weight of other parts.
No political truth is certainly of greater intrinsic value, or is stamped with
the authority ofmore enlightened patrons of liberty, than that on which
the objection is founded. The accumulation of all powers, legislative, execu-
tive, 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 this accumulation of power, or with a mixture of powers,
having a dangerous tendency to such an accumulation, no further arguments
would be necessary to inspire a universal reprobation of the system. I per-
suade myself, however, that it will be made apparent to every one, that the
charge cannot be supported, and that the maxim on which it relies has been
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The Federalist
250
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 ofliberty 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 cele-
brated Montesquieu. Ifhe 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 endeavour, 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 po-
litical liberty; and to have delivered, in the form of elementary truths, the sev-
eral 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 ofthe 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 in-
tegral part ofthe legislative authority. He alone has the prerogative ofmak-
ing treaties with foreign sovereigns, which, when made, have, under certain
limitations, the force of legislative acts. All the members of the judiciary de-
partment 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 ofhis 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 depository 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 legisla-
tive vote.
From these facts, by which Montesquieu was guided, it may clearly be
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No. 47
251
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 ofone
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 constitu-
tion. The magistrate, in whom the whole executive power resides, cannot of
himself make a law, though he can put a negative on every law; nor adminis-
ter justice in person, though he has the appointment of those who do ad-
minister 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* con-
stitutes 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, be-
cause 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
*The King.
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would be exposed to arbitrary control, for the judge would then be the legis-
lator. 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, notwith-
standing 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 ofpower 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 de-
claring, “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 gov-
ernment will admit; or as is consistent with that chain of connexion, 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 depart-
ment. Several ofthe officers ofstate are also appointed by the legislature.
And the members of the judiciary department are appointed by the executive
department.
The constitution ofMassachusetts has observed a sufficient, though less
pointed caution, in expressing this fundamental article of liberty. It declares,
“that the legislative department shall never exercise the executive and judicial
powers, or either of them: the executive shall never exercise the legislative and
judicial powers, or either of them: the judicial shall never exercise the legis-
lative and executive powers, or either of them.” This declaration corresponds
precisely with the doctrine ofMontesquieu, as it has been explained, and is
not in a single point violated by the plan of the convention. It goes no farther
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than to prohibit any one of the entire departments from exercising the pow-
ers ofanother 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 removeable 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 depart-
ment. 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 ofRhode 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 ofNew 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 ju-
diciary. And its court for the trial of impeachments and correction of errors,
is to consist ofone branch ofthe legislature and the principal members of
the judiciary department.
The constitution ofNew Jersey has blended the different powers of gov-
ernment more than any ofthe preceding. The governor, who is the execu-
tive 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 presi-
dent with a casting vote ofone ofthe legislative branches. The same legis-
lative 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 removeable by one branch
of it on the impeachment of the other.
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According to the constitution ofPennsylvania,* the president, who is head
of the executive department, is annually elected by a vote in which the legis-
lative department predominates. In conjunction with an executive council,
he appoints the members of the judiciary department, and forms a court of
impeachments 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 re-
moveable 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 chiefexecutive 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, constitute the supreme
court of appeals: he is joined with the legislative department in the appoint-
ment ofthe other judges. Throughout the states, it appears that the mem-
bers of the legislature may at the same time be justices of the peace. In this
state, the members of one branch of it are ex officio justices of the peace;
as are also the members ofthe 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; declar-
ing that the legislative, executive, and judicial powers of government, ought
to be for ever separate and distinct from each other. Her constitution, not-
withstanding, makes the executive magistrate appointable by the legislative
department; and the members of the judiciary, by the executive department.
The language ofVirginia is still more pointed on this subject. Her con-
stitution 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 ex-
ception, with respect to the members of the inferior courts; but that the chief
magistrate, with his executive council, are appointable by the legislature; that
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*The constitutions of these states have been since altered.
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two members of the latter, are triennially displaced at the pleasure of the leg-
islature; and that all the principal officers, both executive and judiciary, are
filled by the same department. The executive prerogative of pardoning, 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 legisla-
tive 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 eli-
gible 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 depart-
ment, down to captains in the army and navy of the state.
In the constitution ofGeorgia, 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 pardoning, to be finally exercised by the same au-
thority. Even justices of the peace are to be appointed by the legislature.
In citing these cases in which the legislative, executive, and judiciary de-
partments, 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 con-
stitution, of violating a sacred maxim of free government, is warranted nei-
ther 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.
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No. 48
by James Madison
The same subject continued, with a view to the means
of giving efficacy in practice to that maxim
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 neither 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 se-
curity 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 de-
partments, in the constitution of the government, and to trust to these parch-
ment 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 every where ex-
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tending 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 preroga-
tive 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 ofa 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 ex-
posed, by their incapacity for regular deliberation and concerted measures,
to the ambitious intrigues of their executive magistrates, tyranny may well be
apprehended, on some favourable emergency, to start up in the same quar-
ter. But in a representative republic, where the executive magistracy is care-
fully 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 multi-
tude; yet not so numerous as to be incapable of pursuing the objects of its
passions, by means which reason prescribes; it is against the enterprising am-
bition 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 exten-
sive, and less susceptible of precise limits, it can, with the greater facility,
mask under complicated and indirect measures, the encroachments which
it makes on the co-ordinate departments. It is not unfrequently a question of
real nicety in legislative bodies, whether the operation of a particular measure
will, or will not extend beyond the legislative sphere. On the other side, the
executive power being restrained within a narrower compass, and being
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more simple in its nature; and the judiciary being described by land-marks,
still less uncertain, projects of usurpation by either of these departments,
would immediately betray and defeat themselves. Nor is this all: as the legis-
lative 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 collect vouchers in abundance
from the records and archives of every state in the union. But as a more con-
cise, 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 ofVirginia, a state which, as we have seen, has ex-
pressly declared in its constitution, that the three great departments ought
not to be intermixed. The authority in support of it is Mr. Jefferson, who, be-
sides his other advantages for remarking the operation of the government,
was himself the chief magistrate of it. In order to convey fully the ideas with
which his experience 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 ofVirginia,” (p. 195.) “All the powers of government, legislative, execu-
tive, 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
ofVenice. 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 ofgovernment, 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
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them at the same time. But no barrier was provided between these several
powers. The judiciary and executive members were left dependent on the leg-
islative 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 proceeding into the form of an act of assembly,
which will render them obligatory on the other branches. They have accord-
ingly, in many instances, decided rights which should have been left to judi-
ciary 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 ofthe duty ofthis body, as marked out by the constitu-
tion, was “to inquire whether the constitution had been preserved inviolate
in every part; and whether the legislative and executive branches of govern-
ment, had performed their duty as guardians of the people, or assumed to
themselves, or exercised other or greater powers than they are entitled to by
the constitution.” In the execution of this trust, the council were necessarily
led to a comparison of both the legislative and executive proceedings, with
the constitutional powers of these departments: and from the facts enumer-
ated, and to the truth of most of which both sides in the council subscribed,
it appears that the constitution had been flagrantly violated by the legislature
in a variety of important instances.
A great number of laws had been passed violating, without any apparent
necessity, the rule requiring that all bills ofa public nature shall be previ-
ously 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 de-
partment, 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
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them, it will be found, may be imputable to peculiar circumstances con-
nected 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 in-
stances, were either immedietely produced by the necessities of the war, or
recommended by congress or the commander in chief. Second. In most of
the other instances, they conformed either to the declared or the known
sentiments of the legislative department. Third. 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 re-
straint of an individual responsibility for the acts of the body, and deriving
confidence from mutual example and joint influence; unauthorized mea-
sures would of course be more freely hazarded, than where the executive de-
partment 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 demarkation 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
by James Madison
The same subject continued, with the same view
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
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of thinking original, comprehensive, and accurate; and is the more worthy of
attention, as it equally displays a fervent attachment to republican govern-
ment, 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 gov-
ernment 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 when-
ever it may be necessary to enlarge, diminish, or new model the powers of
government; but also whenever any one of the departments may commit en-
croachments on the chartered authorities of the others. The several depart-
ments being perfectly co-ordinate by the terms of their common commis-
sion, neither of them, it is evident, can pretend to an exclusive or superior
right ofsettling 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 en-
force 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 a third. If the legislative authority, which
possesses so many means of operating on the motives of the other depart-
ments, 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
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from this remedial provision. I do not dwell, however, on this objection, be-
cause it may be thought to lie rather against the modification of the principle,
than against the principle itself.
In the next place, it may be considered as an objection inherent in the
principle, that, as every appeal to the people would carry an implication of
some defect in the government, frequent appeals would, in a great measure,
deprive the government of that veneration which time bestows on every
thing, and without which perhaps the wisest and freest governments would
not possess the requisite stability. If it be true that all governments rest on
opinion, it is no less true, that the strength ofopinion in each individual,
and its practical influence on his conduct, depend much on the number
which he supposes to have entertained the same opinion. The reason of man,
like man himself, is timid and cautious when left alone; and acquires firmness
and confidence, in proportion to the number with which it is associated.
When the examples which fortify opinion, are ancient, as well as numerous,
they are known to have a double effect. In a nation of philosophers, this con-
sideration ought to be disregarded. A reverence for the laws would be
sufficiently inculcated by the voice of an enlightened reason. But a nation of
philosophers is as little to be expected, as the philosophical race of kings
wished for by Plato. And in every other nation, the most rational government
will not find it a superfluous advantage to have the prejudices of the com-
munity 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 fre-
quent reference of constitutional questions to the decision of the whole soci-
ety. Notwithstanding the success which has attended the revisions ofour
established forms of government, and which does so much honour 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 ardour for new and opposite forms, produced by a universal re-
sentment and indignation against the ancient government; and whilst no
spirit ofparty, connected with the changes to be made, or the abuses to be
reformed, could mingle its leaven in the operation. The future situations
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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 proba-
bly result from such appeals, would not answer the purpose of maintaining
the constitutional equilibrium of the government. We have seen that the ten-
dency of republican governments is, to an aggrandizement of the legislative,
at the expense of the other departments. The appeals to the people, therefore,
would usually be made by the executive and judiciary departments. But
whether made by one side or the other, would each side enjoy equal advan-
tages on the trial? Let us view their different situations. The members of the
executive and judiciary departments, are few in number, and can be person-
ally known to a small part only of the people. The latter, by the mode of their
appointment, as well as by the nature and permanency of it, are too far re-
moved 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 discoloured 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 connexions 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 oftheir rights and liberties. With these advantages, it can hardly
be supposed, that the adverse party would have an equal chance for a favour-
able 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. Ifthis should not be
the case with all, it would probably be the case with many, and pretty cer-
tainly 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 depart-
ment 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
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of no specious colouring. A strong party among themselves might take side
with the other branches. The executive power might be in the hands of a pe-
culiar favourite of the people. In such a posture of things, the public decision
might be less swayed by prepossessions in favour of the legislative party. But
still it could never be expected to turn on the true merits of the question. It
would inevitably be connected with the spirit of pre-existing parties, or of
parties springing out of the question itself. It would be connected with per-
sons ofdistinguished character, and extensive influence in the community.
It would be pronounced by the very men who had been agents in, or oppo-
nents 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 of the public alone, that ought to control and regulate the govern-
ment. The passions ought to be controled and regulated by the government.
We found in the last paper, that mere declarations in the written constitu-
tion, are not sufficient to restrain the several departments within their legal
limits. 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 ofa different nature contained in the plan above quoted, might
be adequate, I do not examine. Some of them are unquestionably founded on
sound political principles, and all of them are framed with singular ingenu-
ity and precision.
publius
No. 50
by James Madison
The same subject continued, with the same view
It may be contended, perhaps, that instead of occasional appeals to the
people, which are liable to the objections urged against them, periodical ap-
peals are the proper and adequate means of preventing and correcting infrac-
tions of the constitution.
It will be attended to, that in the examination of these expedients, I confine
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myself to their aptitude for enforcing the constitution, by keeping the several
departments of power within their due bounds; without particularly consid-
ering them, as provisions for altering the constitution itself. In the first view,
appeals to the people at fixed periods, appear to be nearly as ineligible, as ap-
peals 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 favour 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 cen-
sure 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 favourite object, and breaking through the restraints
of the constitution in pursuit of it, would be arrested in their career, by con-
siderations drawn from a censorial revision of their 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 provi-
sion would be applied. And in the last place, where this might not be the
case, they would be oflong 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 Penn-
sylvania, in 1783 and 1784, was, as we have seen, to inquire “whether the con-
stitution had been violated; and whether the legislative and executive depart-
ments had encroached on each other.” This important and novel experiment
in politics, merits, in several points of view, very particular attention. In some
of them it may, perhaps, as a single experiment, made under circumstances
somewhat peculiar, be thought to be not absolutely conclusive. But, as ap-
plied 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, ofits most active and leading members, had
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also been active and leading characters in the parties which pre-existed in
the state.
Second. It appears that the same active and leading members of the coun-
cil, 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 ofthe 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.
Third. Every page of their proceedings witnesses the effect of all these cir-
cumstances on the temper of their deliberations. Throughout the continu-
ance 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 exhibit 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 un-
biassed 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 deci-
sions. When men exercise their reason coolly and freely on a variety of dis-
tinct 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.
Fourth. 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.
Fifth. I have never understood that the decisions of the council on con-
stitutional questions, whether rightly or erroneously formed, have had any
effect in varying the practice founded on legislative constructions. It even
appears, ifI mistake not, that in one instance, the cotemporary 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
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the experiment was made, was at that crisis, and had been for a long time be-
fore, 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 pe-
riod, will be exempt from them? Such an event ought to be neither presumed
nor desired; because an extinction of parties necessarily implies either a uni-
versal 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 in 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 con-
cerned 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
by James Madison
The same subject continued, with the
same view, and concluded
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 exte-
rior provisions are found to be inadequate, the defect must be supplied, by so
contriving the interior structure of the government, as that its several con-
stituent parts may, by their mutual relations, be the means of keeping each
other in their proper places. Without presuming to undertake a full devel-
opement of this important idea, I will hazard a few general observations,
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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 ofits own; and consequently should be so
constituted, that the members ofeach should have as little agency as pos-
sible 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 con-
structing the several departments, would be less difficult in practice, than it
may in contemplation appear. Some difficulties, however, and some addi-
tional 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 mem-
bers, 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 ofeach department should be
as little dependent as possible on those ofthe others, for the emoluments
annexed to their offices. Were the executive magistrate, or the judges, not in-
dependent 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 pow-
ers in the same department, consists in giving to those who administer each
department, the necessary constitutional means, and personal motives, to re-
sist 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 con-
nected 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
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government. But what is government itself, but the greatest of all reflections
on human nature? Ifmen were angels, no government would be necessary.
If angels were to govern men, neither external nor internal controls on gov-
ernment would be necessary. In framing a government which is to be ad-
ministered by men over men, the great difficulty lies in this: you must first
enable the government to control the governed; and in the next place oblige
it to control itself. A dependence on the people is, no doubt, the primary
control on the government; but experience has taught mankind the neces-
sity of auxiliary precautions.
This policy ofsupplying, by opposite and rival interests, the defect of
better motives, might be traced through the whole system of human affairs,
private as well as public. We see it particularly displayed in all the subordinate
distributions of power; where the constant aim is, to divide and arrange the
several offices in such a manner as that each may be a check on the other; that
the private interest of every individual may be a centinel over the public
rights. These inventions of prudence cannot be less requisite in the distribu-
tion 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 pre-
dominates. 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 en-
croachments by still further precautions. As the weight of the legislative au-
thority 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 nega-
tive 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 connexion 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?
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If the principles on which these observations are founded be just, as I per-
suade 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 fed-
eral system ofAmerica, 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 sepa-
rate departments. In the compound republic of America, the power surren-
dered 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 controled by itself.
Second. It is of great importance in a republic, not only to guard the soci-
ety 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 provid-
ing 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 impracti-
cable. 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
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as that for religious rights. It consists in the one case in the multiplicity of in-
terests, 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 com-
prehended under the same government. This view of the subject must par-
ticularly recommend a proper federal system to all the sincere and consider-
ate friends of republican government: since it shows, that in exact proportion
as the territory of the union may be formed into more circumscribed con-
federacies, or states, oppressive combinations of a majority will be facili-
tated; the best security under the republican form, for the rights of every class
of citizens, will be diminished; and consequently, the stability and indepen-
dence 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 con-
dition, 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 confeder-
acy, and left to itself, the insecurity of rights under the popular form of gov-
ernment 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 upon any other principles, than those of justice and the general good:
whilst there being thus less danger to a minor from the will of the major
party, there must be less pretext also, to provide for the security of the for-
mer, 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
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than it is important, notwithstanding the contrary opinions which have been
entertained, that the larger the society, provided it lie within a practicable
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 ex-
tent, by a judicious modification and mixture of the federal principle.
publius
No. 52
by James Madison
Concerning the house of representatives, with a view
to the qualifications of the electors and elected,
and the time of service of the members
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 ofthe state legislatures. The definition ofthe 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 rea-
son, 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 pro-
vision made by the convention appears, therefore, to be the best that lay
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within their option. It must be satisfactory to every state; because it is con-
formable 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 can-
not be feared that the people of the states will alter this part of their consti-
tutions, in such a manner as to abridge the rights secured to them by the fed-
eral 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 con-
vention. A representative of the United States must be of the age of twenty-
five years; must have been seven years a citizen of the United States; must, at
the time of his election, be an inhabitant of the state he is to 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 gov-
ernment 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 par-
ticular profession of religious faith.
The term for which the representatives are to be elected, falls under a
second view which may be taken of this branch. In order to decide on the
propriety of this article, two questions must be considered; first, whether bi-
ennial elections will, in this case, be safe; secondly, whether they be necessary
or useful.
First. As it is essential to liberty, that the government in general should
have a common interest with the people; so it is particularly essential, that
the branch of it under consideration should have an immediate dependence
on, and an intimate sympathy with, the people. Frequent elections are un-
questionably the only policy, by which this dependence and sympathy can
be effectually secured. But what particular degree of frequency may be ab-
solutely 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
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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 ofit
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 ambi-
tion. 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 be-
ing expressly enacted, that a new parliament shall be called within three years
after the determination of the former. The last change, from three to seven
years, is well known to have been introduced pretty early in the present cen-
tury, under an alarm for the Hanoverian succession. From these facts it ap-
pears, that the greatest frequency of elections which has been deemed neces-
sary in that kingdom, for binding the representatives to their constituents,
does not exceed a triennial return ofthem. And ifwe 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 repre-
sentatives 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 oflate, 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,
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consisted in the right ofthe latter to supply occasional vacancies, by the
election ofnew members, and in the chance ofsome event which might
produce a general new election. The ability also ofthe 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. Oflate, these shackles, ifI 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 ofIreland, from this view of it, can throw but little light on the sub-
ject. 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 connexion be-
tween 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 every where displayed it-
self, at the commencement of the struggle, and which vanquished the obsta-
cles to independence, is the best of proofs, that a sufficient portion of liberty
had been every where 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 elec-
tions were most frequent. Virginia was the colony which stood first in resist-
ing the parliamentary usurpations ofGreat Britain: it was the first also in
espousing, by public act, the resolution of independence. In Virginia, never-
theless, if I have not been misinformed, elections under the former govern-
ment 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.
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The conclusion resulting from these examples will be not a little strength-
ened, by recollecting three circumstances. The first is, that the federal legis-
lature will possess a part only of that supreme legislative authority which is
vested completely in the British parliament; and which, with a few excep-
tions, 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 controled 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 ofthe
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
governments 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
by James Madison
The same subject continued, with a view of the term
of service of the members
I shall here, perhaps, be reminded ofa current observation, “that where
annual elections end, tyranny begins.” If it be true, as has often been re-
marked, that sayings which become proverbial, are generally founded in
reason, it is not less true, that, when once established, they are often applied
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to cases to which the reason of them does not extend. I need not look for a
proofbeyond the case before us. What is the reason on which this proverbial
observation is founded? No man will subject himse[l]f to the ridicule of pre-
tending that any natural connexion 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 cir-
cumstances 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 ofthe most numerous branches ofthe
state legislatures, we find them by no means coinciding any more in this in-
stance, 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 the 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 are 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 un-
derstood 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 oflegislation
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 parlia-
ment is transcendent and uncontrolable, as well with regard to the constitu-
tion, as the ordinary objects of legislative provision. They have accordingly,
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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 con-
stitution, 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 appeal-
ing 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, appli-
cable to the subject, was that of a year; and hence the doctrine has been in-
culcated, by a laudable zeal to erect some barrier against the gradual innova-
tions of an unlimited government, that the advance towards tyranny was to
be calculated by the distance of departure from the fixed point of annual elec-
tions. But what necessity can there be of applying this expedient to a govern-
ment, limited as the federal government will be, by the authority of a para-
mount 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 elec-
tions 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 sub-
jects 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
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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 con-
versation of every class of people. The great theatre of the United States pre-
sents 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 through-
out a very extensive region, and are extremely diversified by the local affairs
connected with them, and can with difficulty be correctly learnt in any other
place, than in the central councils, to which a knowledge of them will be
brought by the representatives of every part of the empire. Yet some knowl-
edge 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 knowl-
edge 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 pro-
vided, without a similar knowledge of some 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 inferior objects will re-
quire a proportional degree of information with regard to them.
It is true, that all these difficulties will, by degrees, be very much dimin-
ished. The most laborious task will be the proper inauguration of the gov-
ernment, and the primeval formation of a federal code. Improvements on the
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first draught 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 cu-
riosity and conversation among the citizens at large. And the increased inter-
course 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 mu-
nicipal legislation, is submitted to the federal government. And although the
house ofrepresentatives is not immediately to participate in foreign nego-
tiations and arrangements, yet, from the necessary connexion between the
several branches of public affairs, those particular branches will frequently
deserve attention in the ordinary course of legislation, and will sometimes
demand particular legislative sanction and co-operation. Some portion of
this knowledge may, no doubt, be acquired in a man’s closet; but some of it
also can only be derived from the public sources of information; and all of
it will be acquired to best effect, by a practical attention to the subject, dur-
ing the period of actual service in the legislature.
There are other considerations, ofless 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
circumstances, 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 con-
sidered by the legislative assemblies almost as a matter ofcourse. The elec-
tion of the representatives by the people, would not be governed by the same
principle.
The Federalist
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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 elec-
tions, even in single states, where they are large, and hold but one legisla-
tive session in the 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 un-
lawful means, for obtaining irregular returns. Were elections for the federal
legislature to be annual, this practice might become a very serious abuse, par-
ticular[l]y 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 bi-
ennial elections will be as useful to the affairs of the public, as we have seen
that they will be safe to the liberties of the people.
publius
No. 53
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282
No. 54
by James Madison
The same subject continued, with a view
to the ratio of representation
The next view which I shall take of the house of representatives, relates to the
apportionment 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 appor-
tionment 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 connexion. 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 exceptionable among the practicable rules; and had too re-
cently 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 ad-
mission of numbers for the measure of representation, or of slaves combined
with free citizens, as a ratio of taxation, that slaves ought to be included in the
numerical rule of representation? Slaves are considered as property, not as
persons. They ought, therefore, to be comprehended in estimates of taxation
which are founded on property, and to be excluded from representation,
which is regulated by a census of persons. This is the objection, as I under-
stand it, stated in its full force. I shall be equally candid in stating the reason-
ing which may be offered on the opposite side.
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No. 54
283
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 ofboth these qualities; being considered by our
laws, in some respects, as persons, and in other respects as property. In being
compelled to labour not for himself, but for a master; in being vendible by
one master to another master; and in being subject at all times to be re-
strained in his liberty, and chastised in his body, by the capricious will of an-
other, 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 labour and his lib-
erty; and in being punishable himselffor 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 mixt char-
acter 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 ad-
mitted 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 con-
sistent, 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 consid-
ered 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
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The Federalist
284
conferred? Might not some surprise also be expressed, that those who re-
proach the southern states with the barbarous policy of considering as prop-
erty a part oftheir 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 them-
selves, nor increase the votes of their masters. Upon what principle then,
ought they to be taken into the federal estimate of representation? In reject-
ing 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 prin-
ciple of the proposed constitution, that as the aggregate number of represen-
tatives 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 in-
habitants, 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 propor-
tion 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 appor-
tions the representatives. In this point ofview, the southern states might
retort the complaint, by insisting, that the principle laid down by the con-
vention, required that no regard should be had to the policy of particular
states towards their own inhabitants; and consequently, that the slaves, as in-
habitants, 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 wa[i]ved 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 com-
promising 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 pro-
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No. 54
285
ceeded 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 protec-
tion 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 ofNew York, one branch ofthe 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 opu-
lent citizen but a single vote in the choice ofhis representative, the respect
and consequence which he derives from his fortunate situation, very fre-
quently 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 representa-
tives 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 un-
equal influence, corresponding with the unequal importance ofthese sub-
sequent and voluntary resolutions. Under the proposed constitution, the
federal acts will take effect without the necessary intervention of the indi-
vidual states. They will depend merely on the majority of votes in the federal
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The Federalist
286
legislature, and consequently each vote, whether proceeding from a larger or
smaller state, or a state more or less wealthy or powerful, will have an equal
weight and efficacy; in the same manner as the votes individually given in a
state legislature, by the representatives of unequal counties or other districts,
have each a precise equality of value and effect; or if there be any difference
in the case, it proceeds from the difference in the personal character of the in-
dividual representative, rather than from any regard to the extent of the dis-
trict 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 representa-
tion and taxation, will have a very salutary effect. As the accuracy of the cen-
sus to be obtained by the congress, will necessarily depend, in a considerable
degree, on the disposition, if not the co-operation of the states, it is of great
importance that the states should feel as little bias as possible, to swell or to
reduce the amount of their numbers. Were their share of representation
alone to be governed by this rule, they would have an interest in exaggerating
their inhabitants. Were the rule to decide their share of taxation alone, a con-
trary 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
by James Madison
The same subject continued, in relation to
the total number of the body
The number ofwhich the house ofrepresentatives is to consist, forms
another, and a very interesting point ofview, under which this branch of
the federal legislature may be contemplated. Scarce any article indeed in the
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No. 55
287
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 rep-
resentatives will be an unsafe depository 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 ofthe few, on
the depression ofthe many; fourthly, that defective as the number will be
in the first instance, it will be more and more disproportionate, by the in-
crease ofthe 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 propor-
tions which they respectively bear to the number of their constituents. Pass-
ing over the difference between the smallest and largest states, as Delaware,
whose most numerous branch consists of twenty-one representatives, and
Massachusetts, where it amounts to between three and four hundred; a very
considerable difference is observable among states nearly equal in popula-
tion. 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 propor-
tion may be carried to one for 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 repre-
sentatives 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,
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The Federalist
288
amount to between four and five hundred; and twenty or thirty years hence,
to a thousand. On the other hand, the ratio ofPennsylvania, if applied to the
state ofDelaware, 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
depository. 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 con-
sultation 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 intemper-
ance of a multitude. In all very numerous assemblies, of whatever characters
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 ofbiennial elections. For the same reason that the limited powers
of the congress, and the control of the state legislatures, justify less frequent
elections than the public safety might otherwise require; the members of
the congress need be less numerous than if they possessed the whole power
oflegislation, and were under no other than the ordinary restraints ofother
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 out-
set 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 cen-
sus will, at the rate of one for every thirty thousand, raise the number of rep-
resentatives 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
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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 in-
crease, 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 num-
ber 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 num-
ber, 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 depository for a limited and well guarded power of legislat-
ing for the United States? I must own that I could not give a negative answer
to this question, without first obliterating every impression which I have re-
ceived, with regard to the present genius of the people of America, the spirit
which actuates the state legislatures, and the principles which are incorpo-
rated with the political character ofevery class ofcitizens. 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 an hundred men, who would be dis-
posed 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 legis-
lature, 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 an hundred men, capable of recommending themselves to
the choice of the people at large, who would either desire or dare, within the
short space of two years, to betray the solemn trust committed to them. What
change of circumstances, time, and a fuller population of our country, may
produce, requires a prophetic spirit to declare, which makes no part of
my pretensions. But judging from the circumstances now before us, and
from the probable state of them within a moderate period of time, I must
pronounce, that the liberties of America cannot be unsafe, in the number of
hands proposed by the federal constitution.
From what quarter can the danger proceed? Are we afraid of foreign gold?
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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, were a less numerous body than their successors will
be: they were not chosen by, nor responsible to, their fellow citizens at large:
though appointed from year to year, and recallable at pleasure, they were
generally continued for three years; and prior to the ratification of the federal
articles, for a still longer term: they held their consultations always under
the veil of secrecy: they had the sole transaction of our affairs with foreign
nations: through the whole course of the war, they had the fate of their coun-
try 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 govern-
ment? 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 im-
probability 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 for-
tunately, 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 elec-
tion. 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
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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 ofthis passion, are not aware ofthe
injury they do their own cause. As there is a degree of depravity in mankind,
which requires a certain degree of circumspection and distrust: so there are
other qualities in human nature, which justify a certain portion of esteem
and confidence. Republican government presupposes the existence of these
qualities in a higher degree than any other form. Were the pictures which
have been drawn by the political jealousy of some among us, faithful like-
nesses 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
by James Madison
The same subject continued, in relation to the same point
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 pro-
posed 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 ofhis constituents. But this
principle can extend no farther, than to those circumstances and interests to
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which the authority and care of the representative relate. An ignorance of a
variety ofminute and particular objects, which do not lie within the com-
pass oflegislation, is consistent with every attribute necessary to a due per-
formance ofthe legislative trust. In determining the extent ofinformation
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 com-
merce, 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, dif-
fusively elected within the state. Divide the largest state into ten or twelve dis-
tricts, and it will be found that there will be no peculiar local interest 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 represen-
tatives 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 into
one general act. A skilful individual in his closet, with all the local codes be-
fore 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 oflocal information and preparatory labour, would be
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found in the several volumes of their proceedings, which would very much
shorten the labours of the general legislature, and render a much smaller
number of members sufficient for it?
The federal councils will derive great advantage from another circum-
stance. The representatives of each state will not only bring with them a con-
siderable knowledge of its laws, and a local knowledge of their respective dis-
tricts; 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 ofthe state are assembled, and from whence they may easily
be conveyed by a very few hands into the legislature of the United States.
With regard to the regulation of the militia, there are scarcely any circum-
stances in reference to which local knowledge can be said to be necessary.
The general face of the country, whether mountainous or level, most fit for
the operations of infantry or cavalry, is almost the only consideration of this
nature that can occur. The art of war teaches general principles of organiza-
tion, movement, and discipline, which apply universally.
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 requi-
site 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 dis-
similarity 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 com-
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The Federalist
294
*Burgh’s Political Disquisitions.
parative 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 ofthem 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 po-
litical 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 ofEngland and Scotland, cannot be stated at less than eight
millions. The representatives of these eight millions in the house of com-
mons, 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.* It cannot be supposed
that the half thus elected, and who do not even reside among the people at
large, can add any thing either to the security of the people against the gov-
ernment, or to the knowledge oftheir circumstances and interests in the
legislative councils. On the contrary, it is notorious, that they are more fre-
quently the representatives and instruments of the 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 deduc-
tion 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 per-
sons only, will be the depository of the safety, interest, and happiness of eight
millions; that is to say, there will be one representative only, to maintain the
rights, and explain the situation, of twenty-eight thousand six hundred and
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seventy constituents, in an assembly exposed to the whole force of executive
influence, and extending its authority to every object oflegislation 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 pre-
served 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
by James Madison
The same subject continued, in relation to the supposed
tendency of the plan of the convention to elevate
the few above the many
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 consti-
tution, 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 pur-
sue, 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
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policy of republican government. The means relied on in this form of gov-
ernment 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 govern-
ment; or favours 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 ofdistinguished names, more than the humble sons ofobscure 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 correspondent 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 ofhis country. No quali-
fication of wealth, of birth, of religious faith, or of civil profession, is per-
mitted 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 in-
volving 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 circum-
stances which cannot fail to produce a temporary affection at least to their
constituents. There is in every breast a sensibility to marks ofhonour, of
favour, 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 con-
fessed, 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 in-
spires, is itself a proof of the energy and prevalence of the contrary sentiment.
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In the third place, those ties which bind the representative to his con-
stituents, are strengthened by motives of a more selfish nature. His pride and
vanity attach him to a form of government which favours his pretensions,
and gives him a share in its honours 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 preserva-
tion of their favour, 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 im-
pressed 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 for ever 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 repre-
sentatives, 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 interest, 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 discrimi-
nations in favour 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 tol-
erate 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
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298
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 men. But are they not all that government will admit, and
that human prudence can devise? Are they not the genuine, and the charac-
teristic 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 combatted? What are we to say to the men who profess the most flaming
zeal for republican government, yet boldly impeach the fundamental prin-
ciple 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 pre-
scribed by the constitution for the choice of representatives, he could sup-
pose 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 pre-
scribed 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
ofthe United States will be elected by five or six thousand citizens; whilst,
in the individual states, the election ofa representative is left to about as
many hundred. Will it be pretended, that this difference is sufficient to jus-
tify 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. Rea-
son, on the contrary, assures us that, as in so great a number, a fit represen-
tative 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
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No. 57
299
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 ser-
vants 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 favour in that country the
pretensions ofrank 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 ofa city or borough, unless he possess a like
estate ofhalfthat annual value. To this qualification, on the part ofthe
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 pres-
ent rate of money. Notwithstanding these unfavourable 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. Pennsyl-
vania is an additional example. Some ofher counties, which elect her state
representatives, are almost as large as her districts will be by which her fed-
eral representatives will be elected. The city ofPhiladelphia 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
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one county, in which every elector votes for each of its representatives in the
state legislature. And what may appear to be still more directly to our pur-
pose, the whole city actually elects a single member for the executive council.
This is the case in all the other counties of the state.
Are not these facts the most satisfactory proofs of the fallacy, which has
been employed against the branch of the federal government under con-
sideration? Has it appeared on trial, that the senators ofNew Hampshire,
Massachusetts, and New York; or the executive council ofPennsylvania; or
the members of the assembly in the two last states, have betrayed any pecu-
liar 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,
ofMassachusetts, 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
by James Madison
The same subject continued, in relation to the future
augmentation of the members
The remaining charge against the house of representatives, which I am to ex-
amine, 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 ob-
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No. 58
301
jections against the constitution, it can only proceed from a partial view of
the subject; or from a jealousy which discolours and disfigures every object
which is beheld.
1. Those who urge the objection, seem not to have recollected, that the fed-
eral constitution will not suffer by a comparison with the state constitutions,
in the security provided for a gradual augmentation of the number of repre-
sentatives. 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 re-adjust,
from time to time, the apportionment of representatives to the number of
inhabitants; under the single exception, that each state shall have one repre-
sentative at least: secondly, to augment the number of representatives at the
same periods; under the sole limitation, that the whole number shall not ex-
ceed 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 con-
cur in such measures as the latter have been to call for them.
3. There is a peculiarity in the federal constitution, which insures a watch-
ful 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 favour 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 ofthe largest will have a majority ofthe 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 coali-
tion of a very few states will be sufficient to overrule the opposition; a co-
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The Federalist
302
alition, 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 indis-
pensable, the just and constitutional views ofthe 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. Fortu-
nately 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 can-
not 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 con-
stitution; 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 legiti-
mate 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 num-
ber 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 in-
terested in frequent re-apportionments 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 re-apportionments and
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No. 58
303
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 inter-
est 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 sub-
due the unjust policy ofthe smaller states, or their predominant influence
in the councils of the senate; a constitutional and infallible resource still re-
mains with the larger states, by which they will be able at all times to accom-
plish their just purposes. The house of representatives can not only refuse,
but they alone can propose the supplies requisite for the support of govern-
ment. They, in a word, hold the purse; that powerful 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 ofrepresentatives 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 pli-
ancy 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 a dishonourable 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 depart-
ment of the state in the general confusion, has neither been apprehended nor
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The Federalist
304
experienced. The utmost degree of firmness that can be displayed by the fed-
eral 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 circumstance ofeconomy, which in the present state of
affairs, might have had some effect in lessening the temporary number of
representatives; and a disregard ofwhich would probably have been as rich
a theme ofdeclamation against the constitution, as has been furnished by
the smallness of the number proposed. I omit also any remarks on the diffi-
culty 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 legis-
lative 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 any 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
oflimited information and of weak capacities. Now it is precisely on charac-
ters 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 hands. On the same principle, the more multitudinous a repre-
sentative assembly may be rendered, the more it will partake of the infirmi-
ties 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 representa-
tives beyond a certain limit, they strengthen the barrier against the govern-
ment of a few. Experience will for ever admonish them, that, on the contrary,
after securing a sufficient number for the purposes of safety, of local informa-
tion, 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.
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No. 59
305
As connected with the objection against the number of representatives,
may properly be here noticed, that which has been suggested against the
number made competent for legislative business. It has been said that more
than a majority ought to have been required for a quorum; and in particular
cases, if not in all, more than a majority of a quorum for a decision.
That some advantages might have resulted from such a precaution, cannot
be denied. It might have been an additional shield to some particular inter-
ests, 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 de-
fensive privilege limited to particular cases, an interested minority might
take advantage ofit to screen themselves from equitable sacrifices to the
general weal, or, in particular emergencies, to extort unreasonable indul-
gences. 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 re-
quired; a practice subversive of all the principles of order and regular gov-
ernment; 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
by Alexander Hamilton
Concerning the regulation of elections
The natural order of the subject leads us to consider, in this place, that pro-
vision of the constitution which authorizes the national legislature to regu-
late, in the last resort, the election of its own members.
It is in these words: “The times, places, and manner ofholding elections
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The Federalist
306
*1st Clause, 4th Section of the 1st Article.
for senators and representatives, shall be prescribed in each state by the legis-
lature thereof; but the congress may, at any time, by law, make or alter such
regulations, except as to places of choosing senators.”* 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 exception-
able by a gentleman who has declared himself the advocate of every other part
of the system.
I am greatly mistaken, notwithstanding, ifthere 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 dis-
approve 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 a de-
parture 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 in-
serted in the constitution, which would have been applicable to every prob-
able change in the situation ofthe 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 organized; that it must either
have been lodged wholly in the national legislature, or wholly in the state leg-
islatures, or primarily, in the latter, and ultimately in the former. The last
mode has with reason been preferred by the convention. They have sub-
mitted the regulation of elections for the federal government, in the first in-
stance, 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, when-
ever extraordinary circumstances might render that interposition necessary
to its safety.
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No. 59
307
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. Ifwe are in a humour to presume abuses ofpower, 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 intrust the union with the care of its own existence, than to trans-
fer that care to any other hands; if abuses of power are to be hazarded on the
one side or on the other, it is more rational to hazard them where the power
would naturally be placed, than where it would unnaturally be placed.
Suppose an article had been introduced into the constitution, empower-
ing the United States to regulate the elections for the particular states, would
any man have hesitated to condemn it, both as an unwarrantable transposi-
tion 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 unbiassed observer, it will not be less apparent in the
project ofsubjecting the existence ofthe 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 reg-
ulate the federal elections. It may be alleged, that by declining the appoint-
ment 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 de-
pendent upon them in so essential a point, there can be no objection to in-
trusting 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.
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The Federalist
308
This argument, though specious, will not, upon examination, be found
solid. It is certainly true, that the state legislatures, by forbearing the appoint-
ment of senators, may destroy the national government. But it will not fol-
low, 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 to recommend
their admission into the system, equally cogent with that which must have
regulated the conduct of the convention, in respect to the formation of the
senate. So far as that mode of formation may expose the union to the possi-
bility of injury from the state legislatures, it is an evil; but it is an evil, which
could not have been avoided without excluding the states, in their political
capacities, wholly from a place in the organization of the national govern-
ment. If this had been done, it would doubtless have been interpreted into an
entire dereliction of the federal principle; and would certainly have deprived
the state governments of that absolute safeguard, which they will enjoy under
this provision. But however wise it may have been, to have submitted in this
instance to an inconvenience, for the attainment of a necessary advantage or
a greater good, no inference can be drawn from thence to favour an accumu-
lation of the evil, where no necessity urges, nor any greater good invites.
It may also be easily discerned, 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 in-
aptitude of the general government to the advancement of their happiness;
in which event, no good citizen could desire its continuance.
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No. 59
309
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 situa-
tion; 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
interest of each state to be represented in the federal councils, will be a secu-
rity against the abuse ofa power over its elections in the hands ofthe state
legislatures. But the security will not be considered as complete, by those
who attend to the force of an obvious distinction between the interests of the
people in the public felicity, and the interest of their local rulers in the power
and consequence oftheir offices. The people ofAmerica 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 ofthe states at the present
moment, on the present question. The scheme of separate confederacies,
which will always multiply the chances ofambition, 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 elec-
tions 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 per-
haps they may themselves have excited, to discontinue the choice ofmem-
bers for the federal house of representatives. It ought never to be forgotten,
that a firm union of this country, under an efficient government, will proba-
bly 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
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The Federalist
310
be committed to the guardianship of any but those, whose situation will uni-
formly beget an immediate interest in the faithful and vigilant performance
of the trust.
publius
No. 60
by Alexander Hamilton
The same subject continued
We have seen, that an incontrolable power over the elections for the federal
government could not, without hazard, be committed to the state legisla-
tures. Let us now see what are the dangers 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 re-
spect 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 favourite class of men
in exclusion of others; by confining the places of election to particular dis-
tricts, and rendering it impracticable for 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 hand, 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 alto-
gether 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 gov-
ernments. It is not difficult to conceive, that this characteristic right of free-
dom may, in certain turbulent and factious seasons, be violated, in respect to
a particular class of citizens, by a victorious majority; but that so fundamental
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No. 60
311
a privilege, in a country situated and enlightened as this is, should be invaded
to the prejudice ofthe great mass ofthe people, by the deliberate policy of
the government, without occasioning a popular revolution, is altogether in-
conceivable and incredible.
In addition to this general reflection, there are considerations of a more
precise nature, which forbid all apprehension on the subject. The dissimilar-
ity 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 inter-
course under the same government, will promote a gradual assimilation of
temper and sentiment, 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 particular. 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 influ-
enced by extraneous circumstances of that sort: a consideration which alone
ought to satisfy us, that the discrimination apprehended would never be at-
tempted. For what inducement could the senate have to concur in a prefer-
ence 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 ex-
tended to the other? The composition of the one would in this case counter-
act that ofthe other. And we can never suppose that it would embrace the
appointments to the senate, unless we can at the same time suppose the vol-
untary co-operation of the state legislatures. If we make the latter suppo-
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The Federalist
312
sition, 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 de-
partments of industry, or between the different kinds of property, or between
the different degrees of property? Will it lean in favour of the landed interest,
or the monied interest, or the mercantile interest, or the manufacturing in-
terest? Or, to speak in the fashionable language of the adversaries of the con-
stitution, 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 favour of those who are concerned in
any particular description of industry or property, I presume it will readily be
admitted, that the competition for it will lie between landed men and mer-
chants. And I scruple not to affirm, that it is infinitely less likely that either
ofthem 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 in-
ference 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 com-
merce. In most, ifnot all ofthem, the first is predominant. In a few of
them, however, the latter 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 repre-
sentation of any single state.
In a country consisting chiefly ofthe 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 favourite 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
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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 as 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 or 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 produce an endeavour to secure a monopoly of the federal ad-
ministration to the landed class? As there is little likelihood that the supposi-
tion of such a bias will have any terrors for those who would be immediately
injured by it, a laboured 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 temp-
tation to violate the constitution in favour of the landed class, because that
class would, in the natural course ofthings, 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 be occasioned by the entire exclusion of those who would best
understand its interests, from a share in the management of them. The im-
portance 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
favour, by the urgent calls of public necessity.
I the rather consult brevity in discussing the probability of a preference
founded upon a discrimination between the different kinds of industry and
property, because, as far as I understand the meaning of the objectors, they
contemplate a discrimination of another kind. They appear to have in view,
as the objects of the preference with which they endeavour to alarm us, those
whom they designate by the description of the “wealthy and the well born.”
These, it seems, are to be exalted to an odious pre-eminence over the rest of
their fellow citizens. At one time, however, their elevation is to be a necessary
consequence of the smallness of the representative body; at another time, it is
to be effected by depriving the people at large of the opportunity of exercis-
ing their right of suffrage in the choice of that body.
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314
*Particularly in the southern states and in this state.
But upon what principle is the discrimination of the places of election to
be made, in order to answer the purpose ofthe 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 and the cities? Or are they, on the contrary, scattered over
the face of the country, as avarice or chance may have happened to cast their
own lot, or that of their predecessors? If the latter is the case, (as every intel-
ligent man knows it to be*) is it not evident that the policy of confining the
places of elections 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 ofproperty either for those who may elect, or
be elected. But this forms no part of the power to be conferred upon the na-
tional government. Its authority would be expressly restricted to the regu-
lation of the times, the places, and the manner of elections. The qualifications
of the persons who may choose or be chosen, as has been remarked upon an-
other occasion, are defined and fixed in the constitution, and are unalterable
by the legislature.
Let it however be admitted, for argument sake, that the expedient sug-
gested might be successful; and let it at the same time be equally taken for
granted, that all the scruples which a sense ofduty, or an apprehension of
the danger ofthe 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 them-
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315
selves in the ridiculous task of fabricating election laws for securing a prefer-
ence to a favourite 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 remotest ex-
tremes 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
by Alexander Hamilton
The same subject continued, and concluded
The more candid opposers ofthe provision, contained in the plan ofthe
convention, respecting elections, when pressed in argument, will sometimes
concede the propriety of it; with this qualification, however, that it ought to
have been accompanied with a declaration, that all elections should be held
in the counties where the electors reside. This, say they, was a necessary pre-
caution against an abuse of the power. A declaration of this nature would cer-
tainly 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 exam-
iner, as a serious, still less as an insuperable objection to the plan. The differ-
ent 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.
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The Federalist
316
Ifthose 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 that 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 review 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 com-
prehend each from two to six counties. It may readily be perceived, that it
would not be more difficult for 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 be-
come the only electors ofthe members both ofthe 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, &c. 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 dis-
tance 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 ap-
pear, that objections to the particular modification of the federal power of
regulating elections, will, in substance, apply with equal force to the modifi-
cation ofthe like power in the constitution ofthis state; and for this reason
it will be impossible to acquit the one, and to condemn the other. A similar
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No. 61
317
comparison would lead to the same conclusion, in respect to the constitu-
tions of most of the other states.
If it should be said, that defects in the state constitutions furnish no apol-
ogy 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 secu-
rity ofliberty, 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
ofa candid research after truth. To those who are disposed to consider, as
innocent omissions in the state constitutions, what they regard as unpardon-
able 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 representa-
tives 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? Ifthey 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 oflocal governments to head their opposition, than of two hun-
dred 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 represen-
tatives ofthirteen states, spread over a vast region, and in several respects
distinguishable from each other by a diversity of local circumstances, preju-
dices, and interests.
Hitherto my observations have only aimed at a vindication of the provi-
sion 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 accrue 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 im-
portance 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
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The Federalist
318
as many different periods as there are months in the year. The times of elec-
tion in the several states, as they are now established for local purposes, vary
between extremes as wide as March and November. The consequence of this
diversity would be, that there could never happen a total dissolution or reno-
vation ofthe body at one time. Ifan improper spirit ofany 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 accre-
tions. 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 grad-
ual 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 consti-
tution? 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 intrusted to legislative
discretion; and that, if a time had been appointed, it might, upon experiment,
have been found less convenient than some other time. The same answer may
be given to the question put on the other side. And it may be added, that the
supposed danger of a gradual change being merely speculative, it would have
been hardly advisable upon that speculation to establish, as a fundamental
point, what would deprive several states of the convenience of having the
elections for their own governments, and for the national government, at the
same epoch.
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319
No. 62
by James Madison
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
Having examined the constitution of the house of representatives, and an-
swered such of the objections against it as seemed to merit notice, I enter next
on the examination of the senate.
The heads under which this member of the government may be consid-
ered, 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 citi-
zenship. 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 ex-
plained 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 oflife most likely to supply these ad-
vantages; 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 ex-
clusion of adopted citizens, whose merit 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.
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The Federalist
320
II. It is equally unnecessary to dilate on the appointment ofsenators by
the state legislatures. Among the various modes which might have been de-
vised 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 favouring a select ap-
pointment, and of giving to the state governments such an agency in the for-
mation 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 propor-
tional 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 indis-
pensable.” 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 contem-
plate 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 remain-
ing 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
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No. 62
321
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
oflegislation. No law or resolution can now be passed without the concur-
rence, 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 de-
fence which it involves in favour 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 exer-
tions of this prerogative of the lesser states; and as the facility and excess of
law-making seem to be the diseases to which our governments are most
liable, it is not impossible that this part of the constitution may be more con-
venient 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 an-
swered 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 ofview, a senate, as a second branch ofthe
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 oftwo distinct bodies in schemes
of usurpation or perfidy, where the ambition or corruption of one would
otherwise be sufficient. This is a precaution founded on such clear principles,
and now so well understood in the United States, that it would be more than
superfluous to enlarge on it. I will barely remark, that, as the improbability of
sinister combinations will be in proportion to the dissimilarity in the genius
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The Federalist
322
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 mea-
sures, and with the genuine principles of republican government.
Second. 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.
Third. Another defect to be supplied by a senate, lies in a want of due
acquaintance with the objects and principles oflegislation. 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 ofthe present embarrassments ofAmerica is to be charged on the
blunders ofour 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 gov-
ernment, 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 the American governments, too little attention
has been paid to the last. The federal constitution avoids this error: and what
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323
merits particular notice, it provides for the last in a mode which increases the
security for the first.
Fourth. The mutability in the public councils, arising from a rapid suc-
cession 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 repre-
sentatives. 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 vol-
ume. 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 neighbours 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 distinc-
tion perhaps, that the former, with fewer of the benevolent emotions than
the latter, are under fewer restraints also from taking undue advantage of
the indiscretions of each other. Every nation, consequently, whose affairs be-
tray a want of wisdom and stability, may calculate on every loss which can be
sustained from the more systematic policy of its wiser neighbours. But the
best instruction on this subject is unhappily conveyed to America by the ex-
ample ofher 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 poi-
sons the blessings ofliberty itself. It will be oflittle avail to the people, that
the laws are made by men of their own choice, if the laws be so voluminous
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that they cannot be read, or so incoherent that they cannot be understood: if
they be repealed or revised before they are promulg[at]ed, or undergo such
incessant changes, that no man who knows what the law is to-day, can guess
what it will be to-morrow. Law is defined to be a rule of action; but how can
that be a rule, which is little known and less fixed.
Another effect of public instability, is the unreasonable advantage it gives
to the sagacious, the enterprising, and the monied few, over the industrious
and uninformed mass of the people. Every new regulation concerning com-
merce or revenue, or in any manner affecting the value of the different spe-
cies 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 govern-
ment. The want ofconfidence in the public councils, damps every useful
undertaking; the success and profit of which may depend on a continuance
ofexisting 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 manufac-
turer will lay himself out for the encouragement given to any particular cul-
tivation or establishment, when he can have no assurance, that his prepara-
tory labours 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 sys-
tem 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, with-
out possessing a certain portion of order and stability.
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No. 63
by James Madison
A further view of the constitution of the senate, in regard to
the duration of the appointment of its members
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 gov-
ernment, the esteem of foreign powers will not only be forfeited by an unen-
lightened 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 gov-
ernment, 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 honourable 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 ofher measures had, in every instance, been previously
tried by the light in which they would probably appear to the unbiassed 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 reputa-
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tion 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 se-
lect and stable body had been necessary, a regard to national character alone,
would have prevented the calamities under which that misguided people is
now labouring.
I add, as a sixth defect, the want in some important cases of a due re-
sponsibility in the government to the people, arising from that frequency
of elections, which in other cases produces this responsibility. The 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 collec-
tive 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 ofmeasures, 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 plans or improvements which could not be
accomplished in less than half a dozen years. Nor is it possible for the people
to estimate the share of influence, which their annual assemblies may respec-
tively have on events resulting from the mixed transactions of several years.
It is sufficiently difficult, to preserve a personal responsibility in the members
of a numerous body, for such acts of the body as have an immediate, detached,
and palpable operation on its constituents.
The proper remedy for this defect must be an additional body in the leg-
islative department, which, having sufficient permanency to provide for such
The Federalist
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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 neces-
sity 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 com-
munity 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 inter-
ested men, may call for measures which they themselves will afterwards be
the most ready to lament and condemn. In these critical moments, how salu-
tary will be the interference of some temperate and respectable body of citi-
zens, in order to check the misguided career, and to suspend the blow medi-
tated 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 crouded inhabitants of a small district, be subject to the infection of
violent passions; or to the danger of combining in the pursuit of unjust mea-
sures. I am far from denying, that this is a distinction of peculiar importance.
I have, on the contrary, endeavoured 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 situ-
ation, which will exempt the people ofAmerica from some ofthe dangers
incident to lesser republics, will expose them to the inconveniency of re-
maining, for a longer time, under the influence of those misrepresentations
which the combined industry of interested men may succeed in distributing
among them.
No. 63
327
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The Federalist
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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 ap-
plied. 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 prob-
able, 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 ofthe
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 ge-
nius, of America are, notwithstanding, when compared with the fugitive and
turbulent existence of other ancient republics, very instructive proofs of the
necessity ofsome institution that will blend stability with liberty. I am not
unaware of the circumstances which distinguish the American from other
popular governments, as well ancient as modern; and which render extreme
circumspection necessary, in reasoning from the one case to the other. But
after allowing due weight to this consideration, it may still be maintained,
that there are many points ofsimilitude 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 as-
sembly frequently elected by the people, and to the people themselves. There
are others peculiar to the former, which require the control of such an insti-
tution. 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 ofthem. The use which has been made ofthis
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 ofthe ancient governments on the subject ofrepresentation,
is by no means precisely true, in the latitude commonly given to it. Without
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No. 63
329
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 them in their executive capacity.
Prior to the reform of Solon, Athens was governed by nine archons, an-
nually 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 as-
sembly, 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 mak-
ing 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 number, 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 analagous
to those of Sparta and Rome, with this difference only, that in the election of
that representative body, the right of suffrage was communicated to a part
only of the people.
From these facts, to which many others might be added, it is clear, that the
principle of representation was neither unknown to the ancients, nor wholly
overlooked in their political constitutions. The true distinction between
these and the American governments, lies in the total exclusion of the people,
in their collective capacity, from any share in the latter, and not in the total
exclusion of the representatives of the people from the administration of the
former. The distinction, however, thus qualified, must be admitted to leave a
most advantageous superiority in favour 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.
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The Federalist
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In answer to all these arguments, suggested by reason, illustrated by ex-
amples, and enforced by our own experience, the jealous adversary of the
constitution will probably content himself with repeating, that a senate ap-
pointed not immediately by the people, and for the term of six years, must
gradually acquire a dangerous pre-eminence in the government, and finally
transform it into a tyrannical aristocracy.
To this general answer, the general reply ought to be sufficient; that liberty
may be endangered by the abuses ofliberty, 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, is 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 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 at-
tempt; 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 ofhuman address, arrive at
the object of a lawless ambition, through all these obstructions?
Ifreason condemns the suspicion, the same sentence is pronounced by
experience. The constitution ofMaryland furnishes the most apposite ex-
ample. The senate of that state is elected, as the federal senate will be, indi-
rectly by the people; and for a term less by one year only, than the federal
senate. It is distinguished, also, by the remarkable prerogative offilling 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 colourable objections, that do not lie against the latter. If the fed-
eral 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
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No. 63
331
have been betrayed by the senate ofMaryland; 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 ofbeing elected for a term of
six years, and ofbeing 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 aristo-
cratic usurpations and tyranny which are at some future period to be ex-
emplified in the United States. Unfortunately, however, for the anti-federal
argument, the British history informs us, that this hereditary assembly has
not even 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 rep-
resentatives 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 ofRome, 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. This fact is the more re-
markable, 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 ofPolybius, instead of drawing all power into its vortex, had, at the
commencement of the second punic war, lost almost the whole of its origi-
nal portion.
Besides the conclusive evidence resulting from this assemblage of facts,
that the federal senate will never be able to transform itself, by gradual
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The Federalist
332
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 repre-
sentatives of the people, nothing will be able to maintain even the consti-
tutional 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 legisla-
ture the affections and support of the entire body of the people themselves.
publius
No. 64
by John Jay
A further view of the constitution of the senate,
in regard to the power of making treaties
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 ofblame. Unless on this principle, it is dif-
ficult to explain the motives of their conduct, who condemn the proposed
constitution in the aggregate, and treat with severity some of the most unex-
ceptionable articles in it.
The 2d 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 ofmaking 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 man-
ner most conducive to the public good. The convention appear to have been
attentive to both these points: they have directed the president to be chosen
by select bodies ofelectors, to be deputed by the people for that express
purpose; and they have committed the appointment of senators to the state
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No. 64
333
legislatures. This mode has, in such cases, vastly the advantage ofelections
by the people in their collective capacity, where the activity of party zeal, tak-
ing advantage of the supineness, the ignorance, the hopes, and fears of the
unwary and interested, often places men in office by the votes of a small pro-
portion of the electors.
As the select assemblies for choosing the president, as well as the state leg-
islatures who appoint the senators, will, in general, be composed of the most
enlightened and respectable citizens, there is reason to presume, that their
attention and their votes will be directed to those men only who have be-
come 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 elec-
tions 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 ap-
pearances of genius and patriotism, which, like transient meteors, sometimes
mislead as well as dazzle. If the observation be well founded, that wise kings
will always be served by able ministers, it is fair to argue, that, as an assembly
of select electors possess, in a greater degree than kings, the means of exten-
sive 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 inter-
ests, 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 ofsystem, in the conduct ofany busi-
ness, 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 popu-
lar assembly, composed of members constantly coming and going in quick
succession, seem not to recollect that such a body must necessarily be inade-
quate 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 exe-
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The Federalist
334
cute. 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 inconve-
nience 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 ofofficial information, will be
preserved.
There are 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 con-
formity 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 the con-
currence 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 appre-
hensions will operate on those persons, whether they are actuated by merce-
nary 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 con-
vention 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 intel-
ligence 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
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No. 64
335
experience on this head inform us, that there frequently are occasions when
days, nay, even when hours, are precious. The loss ofa 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 favour-
able tide into a course opposite to our wishes. As in the field, so in the cabi-
net, 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. The matters which in negotiations usually require the
most secrecy, and the most despatch, are those preparatory and auxiliary
measures, which are no otherways important in a national view, than as they
tend to facilitate the attainment of the main objects. 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, infor-
mation, integrity, and deliberate investigation, 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 gentle-
men seem not to consider that the judgments of our courts, and the com-
missions 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 legis-
lature, 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 pro-
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posed, are averse to their being the supreme law 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 one only of the contracting parties, but by both; and conse-
quently, that as the consent ofboth was essential to their formation at first,
so must it ever afterwards be to alter or cancel them. The proposed constitu-
tion, 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 nat-
ural, it abounds too much in the body politic, the eyes ofboth 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 appre-
hensions ofsome, that the president and senate may make treaties without
an equal eye to the interests of all the states. Others suspect, that the two-
thirds will oppress the remaining third, and ask, whether those gentlemen
are made sufficiently responsible for their conduct; whether, if they act cor-
ruptly, 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 interest 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 ofattention; and the government must be a weak one in-
deed, if it should forget, that the good of the whole can only be promoted by
advancing the good of each of the parts or members which compose the
whole. It will not be in the power of the president and senate to make any
treaties, by which they, and their families and estates, will not be equally
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bound and affected with the rest of the community; and having no private
interest distinct from that of the nation, they will be under no temptations to
neglect the latter.
As to corruption, the case is not supposeable. He must either have been
very unfortunate in his intercourse with the world, or possess a heart very
susceptible ofsuch impressions, who can think it probable, that the presi-
dent and two-thirds of the senate, will ever be capable of such unworthy con-
duct. The idea is too gross, and too invidious to be entertained. But if such a
case 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 honour, oaths, reputation, conscience, the love of country, family affec-
tions and attachments, afford security for their fidelity. In short, as the con-
stitution has taken the utmost care that they shall be men oftalents 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 be-
haviour is amply afforded by the article on the subject of impeachments.
publius
No. 65
by Alexander Hamilton
A further view of the constitution of the senate, in relation to
its capacity, as a court for the trial of impeachments
The remaining powers which the plan of the convention allots to the senate,
in a distinct capacity, are comprised in their participation with the execu-
tive 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.
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The Federalist
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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 elec-
tive. The subjects of its jurisdiction are those offences which proceed from
the misconduct of public men, or, in other words, from the abuse or viola-
tion of some public trust. They are of a nature which may with peculiar pro-
priety 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 pre-existing factions, and will enlist all
their animosities, partialities, influence, and interest on one side, or on the
other; and in such cases there will always be the greatest danger, that the
decision will be regulated more by the 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 po-
litical 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 read-
ily 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 depository 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 in-
clined 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? Ifthis be the design ofit, 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 legisla-
tive body: will not the reasons which indicate the propriety of this arrange-
ment, strongly plead for an admission of the other branch of that body to a
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No. 65
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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 suf-
ficiently 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 de-
scription? 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 author-
ity, 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 ofa numerous court for the trial ofimpeachments, 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 favour 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 honour 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
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The Federalist
340
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 ofconviction 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 honours and emoluments of
his country, he will still be liable to prosecution and punishment in the ordi-
nary course oflaw. 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 reason 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 deci-
sion? Those who know any thing ofhuman 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 oflife 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 fu-
ture office. It may be said, that the intervention of a jury, in the second in-
stance, 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 impeach-
ments? This union would certainly have been attended with several advan-
tages; but would they not have been overbalanced by the signal disadvantage
already stated, arising from the agency of the same judges in the double
prosecution to 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
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was perhaps the prudent mean. I forbear to remark upon the additional pre-
text for clamour against the judiciary, which so considerable an augmenta-
tion 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 favour of
such a plan. To some minds, it will not appear a trivial objection, that it would
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 heavy
expense, or might in practice be subject to a variety of casualties and incon-
veniences. It must either consist of permanent officers, stationary at the seat
ofgovernment, and ofcourse entitled to fixed and regular stipends, or of
certain officers of the state governments, to be called upon whenever an im-
peachment 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 ad-
vantage to the guilty, from the opportunities which delay would afford for
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 de-
signing majority in the house of representatives. Though this latter supposi-
tion 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, in this respect, be thought
preferable to the plan 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 ad-
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The Federalist
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justed 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 crite-
rion ofhis more conceited neighbour? To answer the purpose of the adver-
saries of the constitution, they ought to prove not merely, that particular pro-
visions 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
by Alexander Hamilton
The same subject continued
A review of the principal objections that have appeared against the proposed
court for the trial of impeachments, will not improbably eradicate the re-
mains of any unfavourable 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 im-
portant 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 pur-
poses, 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 ofthe latter upon the
former. And it may, perhaps, with not less reason, be contended, that the
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*In that ofNew Jersey, also, the final judiciary authority is in a branch of the legisla-
ture. In New Hampshire, Massachusetts, Pennsylvania, and South Carolina, one branch
of the legislature is the court for the trial of impeachments.
powers relating to impeachments are, as before intimated, an essential check
in the hands of that body, upon the encroachments of the executive. The di-
vision 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 inconve-
nience 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 addi-
tional circumstance, will be as complete as itself can desire.
It is curious to observe with what vehemence this part of the plan is as-
sailed, on the principle here taken notice of, by men who profess to admire,
without exception, the constitution of this state; while that very 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 judi-
ciary authority ofNew York, in the last resort, may, with truth, be said to re-
side 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 men-
tioned, and seems to be so little understood, how much more culpable must
be the constitution ofNew York?*
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 determining in all cases of impeachment, it will give a decided
predominancy to senatorial influence. To an objection so little precise in it-
self, it is not easy to find a very precise answer. Where is the measure or
criterion to which we can appeal, for estimating 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,
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The Federalist
344
to examine each power by itself, and to decide on general principles, where it
may be deposited with most advantage, and least inconvenience?
Ifwe take this course, it will lead to a more intelligible, ifnot to a more
certain result. The disposition of the power of making treaties, which has ob-
tained in the plan of the convention, will then, if I mistake not, appear to be
fully justified by the considerations stated in a former number, and by others
which will occur under the next head ofour 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 disquisi-
tions 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, ifpracticable, to find a more fit receptacle for the power ofdetermin-
ing impeachments, than that which has been chosen. If this be truly the case,
the hypothetical danger of the too great weight of the senate, ought to be dis-
carded from our reasonings.
But this hypothesis, such as it is, has already been refuted in the remarks
applied to the duration of office prescribed for the senators. It was by them
shown, as well on the credit ofhistorical examples, as from the reason of
the thing, that the most popular branch ofevery government, partaking of
the republican genius, by being generally the favourite 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 conven-
tion has provided in its favour, several important counterpoises to the addi-
tional 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 suf-
frages of a majority of the whole number of electors; a case which it cannot
be doubted will sometimes, if not frequently, happen. The constant possibil-
ity 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 citi-
zens of the union, for the first office in it. It would not perhaps be rash to pre-
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No. 66
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dict, 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 con-
demn 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 favouritism of the latter would always be an asylum for the mis-
behaviour of the former. But that practice, in contradiction to this principle,
proceeds upon the presumption, that the responsibility of those who ap-
point, for the fitness and competency of the persons on whom they bestow
their choice, and the interest they have in the respectable and prosperous ad-
ministration of affairs, will inspire a sufficient disposition, to dismiss from
a share in it, all such who by their conduct may have proved themselves un-
worthy ofthe confidence reposed in them. Though facts may not always
correspond with this presumption, yet if it be in the main just, it must de-
stroy 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 ofguilt so extraordinary, as to have
induced the representatives of the nation to become its accusers.
If any further argument 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 busi-
ness 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 he may have made. 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 opposi-
tion to him; and they could not be sure, ifthey withheld their assent, that
the subsequent nomination would fall upon their own favourite, or upon any
other person in their estimation more meritorious than the one rejected.
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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 proofs of the want of it destroy.
A fourth objection to the senate, in the capacity of a court of impeach-
ments, is derived from their union with the executive in the power of mak-
ing 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 them-
selves to decide upon the accusation brought against them for the treachery
of which they had been guilty?
This objection has been circulated with more earnestness, and with a
greater show ofreason, 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
chiefmagistrate ofthe union, and oftwo-thirds ofthe members ofa body
selected by the collective wisdom ofthe legislatures ofthe several states, is
designed to be the pledge for the fidelity of the national councils in this par-
ticular. The convention might with propriety have mediated 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 ofa few leading individuals in the
senate, who should have prostituted their influence in that body, as the mer-
cenary 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 ma-
jority 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 of 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 oflegislation, should escape with im-
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punity, 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 delibera-
tions 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 de-
pend 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 pos-
sible for them to combine in any interest opposite to that of the public good.
So far as might concern the misbehaviour of the executive in perverting
the instructions, or contravening the views of the senate, we need not be ap-
prehensive 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 ofleading members, by whose arts and influence the major-
ity may have been inveigled into measures odious to the community: if the
proofs of that corruption should be satisfactory, the usual propensity of hu-
man 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
by Alexander Hamilton
Concerning the constitution of the president: a gross attempt
to misrepresent this part of the plan detected
The constitution of the executive department of the proposed government,
next claims our attention.
There is hardly any part ofthe system, the arrangement ofwhich
could have been attended with greater difficulty, and there is perhaps none
which has been inveighed against with less candour, or criticised with less
judgment.
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348
Here the writers against the constitution seem to have taken pains to sig-
nalize their talent of misrepresentation. Calculating upon the aversion of the
people to monarchy, they have endeavoured 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 attributes, superior in dignity and splendour to those of a
king ofGreat 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 offoreign potentates, in all the supercilious pomp ofmajesty. The
images of Asiatic despotism and voluptuousness, have not been wanting to
crown the exaggerated scene. We have been taught to tremble at the terrific
visages ofmurdering janisaries; and to blush at the unveiled mysteries ofa
future seraglio.
Attempts extravagant as these to disfigure, or rather to metamorphose the
object, render it necessary to take an accurate view of its real nature and form;
in order to ascertain its true aspect and genuine appearance, to unmask the
disingenuity, and to 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 ar-
duous 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, licenses of party-artifice, that even in a disposition the
most candid and tolerant, they must force the sentiments which favour 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 ofdeliberate imposture and deception upon the gross pretence
of a similitude between a king of Great Britain, and a magistrate of the char-
acter 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 expedi-
ents 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
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No. 67
349
*See Cato, No. 5.
†Article 1, Sec. 3, Clause 1.
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 execu-
tives of the individual states. I mean the power of filling casual vacancies in
the senate.
This bold experiment upon the discernment ofhis countrymen, has been
hazarded by the writer who (whatever may be his real merit) has had no in-
considerable share in the applauses ofhis party;* and who, upon this false
and unfounded suggestion, has built a series of observations equally false and
unfounded. Let him now be confronted with the evidence of the fact; and let
him, 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 the United
States, whose appointments are not in the constitution otherwise provided
for, and which shall be established by law.” Immediately after this clause fol-
lows 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 com-
missions 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 connexion of the clauses,
and to the obvious meaning of the terms, will satisfy us, that the deduction is
not even colourable.
The first of these two clauses, it is clear, only provides a mode for appoint-
ing such officers, “whose appointments are not otherwise provided for in the
constitution, and which shall be established by law;” of course it cannot ex-
tend to the appointment of senators; whose appointments are otherwise
provided for in the constitution,† and who are established by the constitution,
and will not require a future establishment by law. This position will hardly
be contested.
The last of these two clauses, it is equally clear, cannot be understood to
comprehend the power of filling vacancies in the senate, for the following
reasons: First. The relation in which that clause stands to the other, which de-
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The Federalist
350
clares 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 estab-
lishing an auxiliary method of appointment, in cases to which the general
method was inadequate. The ordinary power of appointment is confided 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 va-
cancies might happen in their recess, which it might be necessary for the pub-
lic 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 should expire at the
end of their next session.” Second. If this clause is to be considered as supple-
mentary 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. Third.
The time within which the power is to operate, “during the recess of the sen-
ate,” 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 vacan-
cies 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,
obviate all possibility of doubt. 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
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No. 68
351
that body should happen by resignation or otherwise, during the recess of the
legislature of any state, the executive thereof may make temporary ap-
pointments 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 the 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 unwar-
rantable arts which are practised, to prevent a fair and impartial judgment of
the real merits of the plan submitted to the consideration of the people. Nor
have I scrupled, in so flagrant a case, to indulge 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 gov-
ernment, 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
by Alexander Hamilton
The view of the constitution of the president continued,
in relation to the mode of appointment
The mode ofappointment ofthe chiefmagistrate ofthe 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 appro-
bation 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
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The Federalist
352
*Vide Federal Farmer.
well guarded.* I venture somewhat further, and hesitate not to affirm, that if
the manner of it be not perfect, it is at least excellent. It unites in an eminent
degree all the advantages, the union of which was to be wished for.
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 par-
ticular 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 act-
ing under circumstances favourable to deliberation, and to a judicious com-
bination of all the reasons and inducements that 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 so complicated an investigation.
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 adminis-
tration of the government. 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 extraor-
dinary 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, that
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 ad-
versaries 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
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No. 68
353
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 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 oftrust or profit under the United States, can be of
the number 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 noticed, afford a satisfactory prospect of their continuing so, to the
conclusion of it. The business of corruption, when it is to embrace so con-
siderable a number of men, requires time, as well as means. Nor would it be
found easy suddenly to embark them, dispersed as they would be over thir-
teen states, in any combinations founded upon motives which, though they
could not properly be denominated corrupt, might yet be of a nature to mis-
lead them from their duty.
Another, and no less important, desideratum was, that the executive
should be independent for his continuance in office, on all but the people
themselves. He might otherwise be tempted to sacrifice his duty to his com-
plaisance for those whose favour 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 be happily combined in the plan devised by the
convention, which is, that each state shall choose a number of persons as elec-
tors, 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 major-
ity of the votes might not always happen to centre in one man, and as it might
be unsafe to permit less than a majority to be conclusive, it is provided, that,
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The Federalist
354
in such a contingency, the house of representatives shall select out of the can-
didates, who shall have the five highest numbers of votes, the man who, in
their opinion, may be best qualified for the office.
This process of election affords a moral certainty, that the office of presi-
dent will seldom 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 honours
of 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 to that description. But two considerations
seem to justify the ideas of the convention in this respect. One is, that to se-
cure at all times the possibility of a definite resolution of the body, it is nec-
essary 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,
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No. 69
355
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 sub-
stitute 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
by Alexander Hamilton
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
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 Signior, 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 con-
fidence. 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 for ever; but there is a close
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The Federalist
356
analogy between him and a governor ofNew 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 correspondent 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 misde-
meanors, removed from office; and would afterwards be liable to prosecution
and punishment in the ordinary course oflaw. 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 Amer-
ica would stand upon no better ground than a governor ofNew York, and
upon worse ground than the governors ofVirginia 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 re-consideration;
and the bill so returned, is not to become a law, unless, upon that re-
consideration, it be approved by two-thirds ofboth 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 ofnational agitation. The qualified negative ofthe 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 ofthe governor of Massachu-
setts, whose constitution, as to this article, seems to have been the original
from which the convention have copied.
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No. 69
357
*A writer in a Pennsylvania paper, under the signature of Tamony, has asserted that
the king of Great Britain owes his prerogatives, as commander in chief, to an annual
mutiny bill. The truth is, on the contrary, that his prerogative, in this respect, is imme-
morial, and was only disputed, “contrary to all reason and precedent,” as Blackstone,
vol. 1, page 262, expresses it, by the long parliament ofCharles First; but by the statute
the 13th ofCharles Second, chap. 6, it was declared to be in the king alone, for that the
sole supreme government and command ofthe militia within his majesty’s realms and
dominions, and of all forces by sea and land, and of all forts and places of strength, ever
was and is the undoubted right of his majesty and his royal predecessors kings and
queens ofEngland, and that both or either house of parliament cannot nor ought to pre-
tend to the same.
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 be-
tween 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 par-
ticulars, the power of the president will resemble equally that of the king of
Great Britain, and of the governor of New York. The most material points of
difference are these: . . . First. The president will have only the 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 ofNew 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 gov-
ernor. Second. The president is to be commander in chief of the army and
navy ofthe United States. In this respect his authority would be nominally
the same with that of the king of Great Britain, but in substance much infe-
rior to it. It would amount to nothing more than the supreme command
and direction ofthe 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.* The
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The Federalist
358
governor ofNew 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 ofNew 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. Third. The power of the presi-
dent, in respect to pardons, would extend to all cases, except those of im-
peachment. The governor ofNew 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 govern-
ment, which have not been matured into actual treason, may be screened
from punishment of every kind, by the interposition of the prerogative of
pardoning. Ifa governor ofNew 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 presi-
dent of the union, on the other hand, though he may even pardon treason,
when prosecuted in the ordinary course oflaw, could shelter no offender, in
any degree, from the effects of impeachment and conviction. Would not
the prospect ofa 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 exemp-
tion might himself be involved in the consequences of the measure; and
might be incapacitated by his agency in it, from affording the desired im-
punity? The better to judge ofthis matter, it will be necessary to recollect
that, by the proposed constitution, the offence of treason is limited “to levy-
ing 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. Fourth. The president can only adjourn the national legis-
lature, in the single case ofdisagreement about the time ofadjournment.
The British monarch may prorogue, or even dissolve the parliament. The
governor ofNew York may also prorogue the legislature of this state for a
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359
*Vide Blackstone’s Commentaries, vol. 1, page 257.
limited time; a prerogative which, in certain situations, may be employed to
very important purposes.
The president is to have power, with the advice and consent ofthe sen-
ate, 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, till
it was broached upon the present occasion. Every jurist* of that kingdom,
and every other man acquainted with its constitution, knows, as an estab-
lished 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 co-
operation was necessary to the obligatory efficacy of the treaty. But this par-
liamentary 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
only do with the concurrence of a branch of the legislature. It must be ad-
mitted, that, in this instance, the power of the federal executive would exceed
that of any state executive. But this arises naturally from the exclusive pos-
session by the union of that part of 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
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*Candour however demands an acknowledgment, that I do not think the claim of the
governor to a right of nomination well founded. Yet it is always justifiable to reason from
the practice of a government, till its propriety has been constitutionally questioned. And
independent of this claim, when we take into view the other considerations, and pursue
them through all their consequences, we shall be inclined to draw much the same conclu-
sion.
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 honour.
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 presi-
dent 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 ap-
pointment 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. Ifhe 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 ofNew York, if the coun-
cil should be divided, the governor can turn the scale and confirm his own
nomination.* 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, closetted in a secret apartment with at most four, and frequently
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361
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 appoint-
ment consists, than the considerable number of which the national senate
would consist, we cannot hesitate to pronounce, that the power of the chief
magistrate of this state, in the disposition of offices, must, in practice, be
greatly superior to that of the chief magistrate of the union.
Hence it appears, that, except as to the concurrent authority of the presi-
dent 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 gov-
ernor ofNew 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 strik-
ing, it may be of use to throw the principal circumstances of dissimilitude
into a closer groupe.
The president of the United States would be an officer elected by the
people for four years. The king ofGreat Britain is a perpetual and heredi-
tary prince. The one would be amenable to personal punishment and dis-
grace: 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 com-
merce 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 par-
ticle of spiritual jurisdiction: the other is the supreme head and governor of
the national church! . . . What answer shall we give to those who would per-
suade us, that things so unlike resemble each other? . . . The same that ought
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362
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
by Alexander Hamilton
The same view continued, in relation to the unity
of the executive, and with an examination of the
project of an executive council
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 sup-
position is destitute of foundation; since they can never admit its truth, with-
out, at the same time, admitting the condemnation of their own principles.
Energy in the executive is a leading character in the definition of good gov-
ernment. It is essential to the protection ofthe 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 combina-
tions which sometimes interrupt the ordinary course of justice; to the secu-
rity 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 gov-
ernment, as against the invasions of external enemies, who menaced the con-
quest and destruction ofRome.
There can be no need, however, to multiply arguments or examples on
this head. A feeble executive implies a feeble execution of the government.
A feeble execution is but another phrase for a bad execution: and a govern-
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*New York has no council except for the single purpose of appointing to offices; New
Jersey has a council, whom the governor may consult. But I think, from the terms of the
constitution, their resolutions do not bind him.
ment 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, unity; dura-
tion; an adequate provision for its support; competent powers.
The ingredients which constitute safety in the republican sense, are, a due
dependence on the people; a due responsibility.
Those politicians and statesmen who have been the most celebrated for the
soundness of their principles, and for the justness of their views, have de-
clared in favour 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 ofone
man, in a much more eminent degree than the proceedings of any greater
number; and in proportion as the number is increased, these qualities will be
diminished.
This unity may be destroyed in two ways; either by vesting the power
in two or more magistrates, of equal dignity and authority; or by vesting it
ostensibly in one man, subject, in whole or in part, to the control and co-
operation ofothers, in the capacity ofcounsellors to him. Ofthe first, the
two consuls ofRome may serve as an example: of the last, we shall find ex-
amples in the constitutions of several of the states. New York and New Jersey,
ifI recollect right, are the only states which have intrusted the executive au-
thority wholly to single men.* Both these methods of destroying the unity of
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The Federalist
364
the executive have their partizans; but the votaries of an executive council are
the most numerous. They are both liable, if not to equal, to similar objec-
tions, and may in most lights be examined in conjunction.
The experience of other nations will afford little instruction on this head.
As far, however, as it teaches any thing, it teaches us not to be enamoured 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 dissentions between the
consuls, and between the military tribunes, who were at times substituted to
the consuls. But it gives us no specimens of any peculiar advantages derived
to the state, from the plurality of those magistrates. That the dissentions be-
tween 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 con-
tinually 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 govern-
ment 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 ofunion, after the arms ofthe re-
public had considerably expanded the bounds ofits 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 the command in the more distant provinces. This
expedient must, no doubt, have had great influence in preventing those col-
lisions and rivalships which might otherwise have embroiled the republic.
But quitting the dim light ofhistorical research, and 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 enterprize 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 dissentions are apt to spring.
Whenever these happen, they lessen the respectability, weaken the authority,
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365
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 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, opposi-
tion then becomes, in their estimation, an indispensable duty of self-love.
They seem to think themselves bound in honor, and by all the motives of per-
sonal infallibility, to defeat the success of what has been resolved upon, con-
trary to their sentiments. Men of upright and 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 conse-
quences, 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 jarring of parties in that de-
partment 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
dissention 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 qual-
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The Federalist
366
ities in the executive, which are the most necessary ingredients in its com-
position . . . vigour and expedition; and this without any counterbalancing
good. In the conduct of war, in which the energy of the executive is the bul-
wark 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 constitution-
ally 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 ofhabitual 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 most important of the two; especially in
an elective office. Men in public trust will much oftener act in such a manner
as to render them unworthy ofbeing any longer trusted, than in such a
manner as to make them obnoxious to legal punishment. But the multi-
plication 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 per-
nicious measures, ought really to fall. It is shifted from one to another with
so much dexterity, and under such plausible appearances, that the public
opinion is left in suspense about the real author. The circumstances which
may have led to any national miscarriage or misfortune, are sometimes so
complicated, that where there are a number ofactors 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 opin-
ions, that it was impossible to obtain any better resolution on the point.”
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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 a collusion between the parties concerned, how easy is it to clothe the cir-
cumstances 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 ofthis 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 im-
portant 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 in-
terests have been committed to hands 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 opin-
ion, which lose their efficacy as well on account of the division of the censure
attendant on bad measures among a number, as on account of the uncer-
tainty 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 ad-
ministration, and his person sacred. Nothing, therefore, can be wiser in that
kingdom, than to annex to the king a constitutional council, who may be re-
sponsible 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
ofhis council, though they are answerable for the advice they give. He is the
absolute master ofhis own conduct in the exercise ofhis office; and may ob-
serve or disregard the counsel given to him at his sole discretion.
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368
*De Lolme.
†Ten.
But in a republic, where every magistrate ought to be personally respon-
sible for his behaviour 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 ofGreat 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 behaviour. 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 jeal-
ousy 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:”* that it is far more safe there should be a single object for the jeal-
ousy and watchfulness of the people; 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 num-
ber 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 nar-
rowly watched and more readily suspected, and who cannot unite so great
a mass of influence as when he is associated with others. The decemvirs of
Rome, whose name denotes their number,† were more to be dreaded in their
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No. 71
369
usurpation than any one of them would have been. No person would think
ofproposing 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 in-
tentions; are often the instruments and accomplices of his bad, and are al-
most 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
by Alexander Hamilton
The same view continued, in regard to
the duration of the office
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 chief 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
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370
obtaining so important an advantage. It is a general principle ofhuman
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 title durable or certain; and, of course, will be willing to risk
more for the sake of the one, than of the other. This remark is not less appli-
cable to a political privilege, or honour, or trust, than to any article of ordi-
nary 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 haz-
ard any material censure or perplexity, from the independent exertion of his
powers, or from encountering the ill-humours, 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 ifhe
should be desirous of being continued, his wishes, conspiring with his fears,
would tend still more powerfully to corrupt his integrity, or debase his forti-
tude. 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 legisla-
ture, 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 gov-
ern the conduct of those to whom they intrust the management of their af-
fairs; 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 con-
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fidence 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 per-
sons whom they have appointed, to be the guardians of those interests; to
withstand the temporary delusion, in order to give them time and opportu-
nity 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 com-
plaisance in the executive to the inclinations of the people, we can, with no
propriety, contend for a like complaisance to the humours 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 vigour and decision.
The same rule which teaches the propriety of a partition between the vari-
ous branches of power, teaches, 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 execu-
tive 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 subor-
dinate to the laws, another to be dependent on the legislative body. The first
comports with, the last violates, the fundamental principles of good govern-
ment; 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 irre-
sistible. The representatives of the people, in a popular assembly, seem some-
times to fancy, that they are the people themselves, and betray strong symp-
toms 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;
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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 an-
swer to this inquiry may be drawn from the principle already mentioned, 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 circumstance of
the influence of the legislative body over the people; which might be em-
ployed 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 con-
tribute 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 an annihilation would be sufficiently remote, not to
have an improper effect upon the conduct of a man endued 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 sensi-
ble 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 con-
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*This was the case with respect to Mr. Fox’s India bill, which was carried in the house
of commons, and rejected in the house of lords, to the entire satisfaction, as it is said, of
the people.
stituents. He might then, with prudence, hazard the incurring ofreproach,
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 long 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 com-
patible with the principles of a free government, while they raised themselves
to the rank and consequence of a co-equal branch of the legislature; if they
have been able, in one instance, to abolish both the royalty and the aristoc-
racy, 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 trem-
ble at the prospect of an innovation* attempted by them; what would be to be
feared from an elective magistrate of four years duration, with the confined
authorities of a president of the United States? What but that he might be un-
equal 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 incon-
sistent with a jealousy of his encroachments.
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374
No. 72
by Alexander Hamilton
The same view continued, in regard to
the re-eligibility of the president
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 de-
partment. The actual conduct of foreign negotiations, the preparatory plans
of finance, the application and disbursement of the public monies, in con-
formity 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 under-
stood 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 to be subject to his superintendence. This view of
the thing will at once suggest to us the intimate connexion between the du-
ration of the executive magistrate in office, and the stability of the system of
administration. To undo what has been done by a predecessor, is very often
considered by a successor, as the best proofhe can give ofhis 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 ofhis predecessor has proceeded from a dislike to his
measures, and that the less he resembles him, the more he will recommend
himself to the favour of his constituents. These considerations, and the in-
fluence of personal confidences and attachments, would be likely to induce
every new president to promote a change ofmen to fill the subordinate
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No. 72
375
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 circum-
stance ofre-eligibility. The first is necessary, to give the officer himselfthe
inclination and the resolution to act his part well, and to the community
time and leisure to observe the tendency ofhis 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 ofhis conduct, to continue him
in the station, in order to prolong the utility ofhis 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 mag-
istrate in office for a certain time, and then excluding him from it, either for
a limited period or for ever after. This exclusion, whether temporary or per-
petual, 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 behaviour. There are few men who would not feel much less zeal in
the discharge of a duty, when they were conscious that the advantage 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 ofreward is one ofthe strongest incentives
ofhuman conduct; or that the best security for the fidelity of mankind, is to
make interest coincide with duty. Even the love offame, the ruling passion
of the noblest minds, which would prompt a man to plan and undertake ex-
tensive and arduous enterprises for the public benefit, requiring considerable
time to mature and perfect them, if he could flatter himself with the prospect
ofbeing 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 be-
fore 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.
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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 advantages he enjoyed, would feel a propensity,
not easy to be resisted by such a man, to make the best use ofhis opportuni-
ties, while they 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 person probably, with a different prospect before him,
might content himself with the regular emoluments of his station, 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 ifhe could expect to
prolong his honours 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, finding himself seated on the summit of his coun-
try’s honours, looking forward to the time at which he must descend from the
exalted eminence for ever, and reflecting that no exertion of merit on his part
could save him from the unwelcome reverse, would be much more violently
tempted to embrace a favourable conjuncture for attempting the prolonga-
tion ofhis power, at every personal hazard, than ifhe 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 gov-
ernment, to have half a dozen men who had had credit enough to raise them-
selves 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 exer-
cise ofhis office. That experience is the parent of wisdom, is an adage, the
truth of which is recognized by the wisest as well as the simplest of mankind.
What more desirable or more essential than this quality in the governors of
nations? Where more desirable or more essential, than in the first magistrate
ofa 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
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No. 72
377
possessor shall be compelled to abandon the station in which it was ac-
quired, 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 sta-
tions 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 of its own citizens, in the manner best suited to its
exigencies and circumstances! Without supposing the personal essentiality
of the man, it is evident that a change of the chief magistrate, at the breaking
out of a war, or 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 al-
ready settled train of the administration.
A fifth ill effect of the exclusion would be, that it would operate as a con-
stitutional interdiction ofstability in the administration. By inducing the
necessity of a change of men, in the first office in the nation, it would neces-
sarily lead to 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 obvi-
ate 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 exclu-
sion; but when we consider, that even a partial one would always render the
re-admission 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 the evils? They are
represented to be: 1st. Greater independence in the magistrate; 2d. Greater
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378
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 ob-
ject beyond his present station to which he may sacrifice his independence?
May he have no connexions, 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 greater reason to enter-
tain doubts concerning it, especially if the exclusion were to be perpetual. In
this case, as already intimated, a man of irregular ambition, of whom alone
there could be reason in any case to entertain apprehensions, would, with
infinite reluctance, yield to the necessity of taking his leave for ever of a post,
in which his passion for power and pre-eminence had acquired the force of
habit. And ifhe 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 un-
justifiable restraint upon themselves, a provision which was calculated to de-
bar them of the right of giving a fresh proof of their attachment to a favourite.
There may be conceived circumstances in which this disgust of the people,
seconding the thwarted ambition of such a favourite, might occasion greater
danger to liberty, than could ever reasonably be dreaded from the possibility
of a perpetuation in office, by the voluntary suffrages of the community, ex-
ercising a constitutional privilege.
There is an excess ofrefinement in the idea ofdisabling the people to
continue in office men who had entitled themselves, in their opinion, to ap-
probation and confidence; the advantages ofwhich are at best speculative
and equivocal, and are overbalanced by disadvantages far more certain and
decisive.
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379
No. 73
by Alexander Hamilton
The same view continued, in relation to the provision
concerning support, and the power of the negative
The third ingredient towards constituting the vigour of the executive au-
thority, is an adequate provision for its support. It is evident that, without
proper attention to this article, the separation of the executive from the leg-
islative department, would be merely nominal and nugatory. The legisla-
ture, 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. Ifit were necessary to
confirm so plain a truth by facts, examples would not be wanting, even in this
country, of the intimidation or seduction of the executive by the terrors, or
allurements, of the pecuniary arrangements of the legislative body.
It is not easy, therefore, to commend too highly the judicious attention
which has been paid to this subject in the proposed constitution. It is there
provided, that “the president of the United States shall, at stated times, receive
for his service a compensation, which shall neither be increased nor diminished
during the period for which he shall have been elected, and he shall not receive
within that period any other emolument from the United States, or any of
them.” It is impossible to imagine any provision which would have been
more eligible than this. The legislature, on the appointment of a president, is
once for all to declare what shall be the compensation for his services during
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The Federalist
380
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 upon 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 in-
ducement to renounce or desert the independence intended for him by the
constitution.
The last of the requisites to energy, which have been enumerated, is com-
petent 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 legisla-
ture; or, in other words, his power of returning all bills with objections, which
will 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 more
than once suggested; the insufficiency of a mere parchment delineation of the
boundaries of each, has also been remarked upon; and the necessity of fur-
nishing 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 himselfagainst the depredations ofthe latter.
He might gradually be stripped ofhis authorities by successive resolutions,
or annihilated by a single vote. And in the one mode or the other, the legisla-
tive 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 at
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
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No. 73
381
to the executive, but it furnishes an additional security against the enaction
ofimproper laws. It establishes a salutary check upon the legislative body,
calculated to guard the community against the effects of faction, precipi-
tancy, or ofany 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 combatted by
an observation, that it was not to be presumed a single man would possess
more virtue or wisdom than a number of men; and that, unless this pre-
sumption should be entertained, it would be improper to give the executive
magistrate any species of control over the legislative body.
But this observation, when examined, will appear rather specious than
solid. The propriety of the thing does not turn upon the supposition of su-
perior wisdom or virtue in the executive; but upon the supposition, that the
legislative will not be infallible; that the love of power may sometimes betray
it into a disposition to encroach upon the rights of the 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 mature reflection, would condemn. The primary inducement
to conferring the power in question upon the executive, is to enable him to
defend himself; the secondary, is to increase the chances in favour of the com-
munity against the passing ofbad laws, through haste, inadvertence, or de-
sign. The oftener a 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
mi[s]steps 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 oflaw-
making, and to keep things in the same state in which they may happen to be
at any given period, as much more likely to do good than harm; because it is
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favourable to greater stability in the system of legislation. The injury which
may possibly be done by defeating a few good laws, will be amply compen-
sated by the advantage of preventing a number of bad ones.
Nor is this all. The superior weight and influence of the legislative body in
a free government, and the hazard to the executive in a trial of strength with
that body, afford a satisfactory security, that the negative would generally be
employed with great caution; and that, in its exercise, there would oftener be
room for a charge of timidity than of rashness. 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 ofrisking the displeasure ofthe nation, by
an opposition to the sense of the legislative body. Nor is it probable, that he
would ultimately venture to exert his prerogative, 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 co[n]sideration,
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 ofhis not using his power
when necessary, than ofhis using it too often, or too much. An argument,
indeed, against its expediency, has been drawn from this very source. It has
been represented, on this account, as a power odious in appearance, useless
in practice. But it will not follow, that because it might rarely, 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 ofhis office; in the latter, by the probability of the sanction ofhis
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No. 73
383
constitutents; 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 one. 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, 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 re-
consideration; 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 ifhis 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 ofhis
conduct in the public opinion. A direct and categorical negative has some-
thing 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
ofboth branches of the legislature at the same time; and this too in defi-
ance of the counterpoising weight of the executive. It is at any rate far less
probable, that this should be the case, than that such views should taint the
resolutions and conduct of a bare majority. A power of this nature in the ex-
ecutive, 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 re-
strained by the bare apprehension of opposition, from doing what they
would with eagerness rush into, if no such external impediments were to be
feared.
This qualified negative, as has been elsewhere remarked, is in this state
vested in a council, consisting of the governor, with the chancellor and judges
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*Mr. Abraham Yates, a warm opponent ofthe plan ofthe convention, is ofthis
number.
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, the persons who, in compiling the constitution, were its violent
opposers, have from experience become its declared admirers.*
I have in another place remarked, that the convention, in the formation of
this part of their plan, had departed from the model of the constitution of
this state, in favour of that of Massachusetts. Two strong reasons may be
imagined for this preference. One, that the judges, who are to be the inter-
preters of the law, might receive an improper bias, from having given a pre-
vious opinion in their revisionary capacity. The other, 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 situ-
ation to be either corrupted or influenced by the executive.
publius
No. 74
by Alexander Hamilton
The same view continued, in relation to the command
of the national forces, and the power of pardoning
The president of the United States, is to be commander “in chief of the army
and navy of the United States, and of the militia of the several states when
called into the actual service of the United States.” The propriety of this pro-
vision is so evident, 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 en-
force it. Even those of them which have, in other respects, coupled the chief
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No. 74
385
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 di-
rection of war most peculiarly demands those qualities which distinguish the
exercise of power by a single hand. The direction of war, implies the direc-
tion ofthe common strength: and the power ofdirecting and employing
the common strength, forms an 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 offices.” This I consider as a mere redundancy in the plan:
as the right for which it provides would result of itself from the office.
He is also authorized “to grant reprieves and pardons for offences against
the United States, except in cases of impeachment.” Humanity and good pol-
icy conspire to dictate, that the benign prerogative of pardoning should be as
little as possible fettered or embarrassed. The criminal code of every country
partakes so much of necessary severity, that without an easy access to excep-
tions in favour 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 rigour 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 ofbeing 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 number,
they might often encourage each other, in an act of obduracy, and might be
less sensible to the apprehension of censure for an injudicious or affected
clemency. On these accounts, one man appears to be a more eligible dis-
penser of the mercy of the government than a body of men.
The expediency ofvesting the power ofpardoning in the president has,
ifI 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 rea-
sons 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
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The Federalist
386
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 what-
ever. 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 poised, the secret
sympathy of the friends and favourers of the condemned, 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 in the chief mag-
istrate, 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 commonwealth; and which, if suffered to pass
unimproved, it may never be possible afterwards to recal. The dilatory pro-
cess of convening the legislature, or one of its branches, for the purpose of
obtaining its sanction, 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 con-
stitution, 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
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387
No. 75
by Alexander Hamilton
The same view continued, in relation to
the power of making treaties
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 prerogative of mak-
ing treaties; others, that it ought to have been exclusively deposited in the
senate. Another source ofobjection, 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 as-
sociated 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 observa-
tions made in a preceding number, upon this part of the plan, must have
sufficed to place it, to a discerning eye, in a very favourable 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 explana-
tions heretofore given, 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 ofthe executive with the senate, in the article oftreaties, 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
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The Federalist
388
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 ofthe executive character, though it does not seem strictly
to fall within the definition of either. 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 com-
mon 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 exe-
cution of the subsisting laws, nor to the enaction of new ones; and still less to
an exertion of the common strength. Its objects are, contracts with for-
eign 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, nei-
ther to the legislative nor to the executive. The qualities elsewhere detailed, as
indispensable in the management of foreign negotiations, point out the ex-
ecutive 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 par-
ticipation 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
at stake in the government, to be in any material danger ofbeing corrupted
by foreign powers: but that a man raised from the station of a private citizen
to the rank of chief magistrate, possessed of but a moderate or slender for-
tune, and looking forward to a period not very remote, when he may prob-
ably be obliged to return to the station from which he was taken, might
sometimes be under temptations to sacrifice duty to interest, which it would
require superlative virtue to withstand. An avaricious man might be tempted
to betray the interests of the state for the acquisition of wealth. An ambitious
man might make his own aggrandizement, by the aid of a foreign power, the
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No. 75
389
price ofhis treachery to his constituents. The history ofhuman conduct does
not warrant that exalted opinion ofhuman virtue, which would make it
wise in a nation to commit interests ofso 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 presi-
dent 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 ofletting it alone; and pique or cabal might in-
duce 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 for-
eign powers in the same extent with the constitutional representative 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 ad-
vantage in the management of its external concerns, the people would lose
the additional security which would result from the co-operation of the ex-
ecutive. 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 ren-
der 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, will apply with conclusive force
against the admission ofthe house ofrepresentatives to a share in the for-
mation oftreaties. 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 offoreign 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
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The Federalist
390
the genius ofa body so variable and so numerous. The very complication
ofthe business, by introducing a necessity ofthe concurrence ofso many
different bodies, would of itself afford a solid objection. The greater fre-
quency 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 con-
vened, 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 re-
quire more than the majority of any body to its resolutions, have a direct ten-
dency 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 endeavour 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 ofthe whole number ofmembers 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 proba-
bility, contribute to the advantages of a numerous agency, better than merely
to require a proportion of the attending members. The former, by increasing
the difficulty of resolutions disagreeable to the minority, diminishes the mo-
tives 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, there is great likelihood, that its resolu-
tions 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
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No. 76
391
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 consists 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 con-
gress. When, in addition to these considerations, we take into view the co-
operation of the president, we shall not hesitate to infer, that the people of
America would have greater security against an improper use ofthe 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 for-
ward 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 numbers, to whose agency that power will be intrusted; but
we shall probably be led to conclude, that a body more numerous than the
senate is likely to become, would be very little fit for the proper discharge of
the trust.
publius
No. 76
by Alexander Hamilton
The same view continued, in relation to the appointment
of the officers of the government
The president is “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 the United States, whose ap-
pointments are not otherwise provided for in the constitution. But the
congress may by law vest the appointment of such inferior officers as they
think proper, in the president alone, or in the courts oflaw, or in the heads
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The Federalist
392
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 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, can be properly modified only in one of three ways. It ought either to
be vested in a single man; or in a select assembly ofa moderate number; or
in a single man, with the concurrence ofsuch an assembly. The exercise of
it by the people at large, will be readily admitted to be impracticable; since
wa[i]ving every other consideration, it would leave them little time to do any
thing else. When, therefore, mention is made in the subsequent reasonings,
ofan assembly or body ofmen, what is said must be understood to relate
to a select body or assembly, of the description already given. The people col-
lectively, 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 at-
tended 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 ofhaving 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 in-
vestigate with care the qualities requisite to the stations to be filled, and to
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No. 76
393
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.
There is nothing so apt to agitate the passions ofmankind 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 an-
tipathies, 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 ofthe 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 dis-
advantages which might attend the absolute power of appointment in the
hands of that officer would be avoided. In the act of nomination, his judg-
ment alone would be exercised; and as it would be his sole duty to point out
the man, who with the approbation ofthe senate should fill an office, his
responsibility would be as complete as ifhe were to make the final appoint-
ment. There can, in this view, be no difference between nominating and
appointing. The same motives which would influence a proper discharge
ofhis duty in one case, would exist in the other. And as no man could be
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The Federalist
394
appointed but upon his previous nomination, every man who might be ap-
pointed would be, in fact, his choice.
But his nomination may be overruled: this it certainly may; yet it can only
be to make place for another nomination by himself. The person ultimately
appointed must be the object ofhis preference, though perhaps not in the
first degree. It is also not probable, that his nomination would often be over-
ruled. The senate could not be tempted, by the preference they might feel to
another, to reject the one proposed; because they could not assure them-
selves, that the person they might wish would be brought forward by a sec-
ond or by any subsequent nomination. They could not even be certain, that
a future nomination would present a candidate in any degree more accept-
able to them: and as their dissent might cast a kind of stigma upon the indi-
vidual rejected, and might have the appearance of a reflection upon the judg-
ment of the chief magistrate; it is not likely that their sanction would often be
refused, where there were not special and strong reasons for the refusal.
To what purpose then require the co-operation of the senate? I answer,
that the necessity oftheir concurrence would have a powerful, though in
general, a silent operation. It would be an excellent check upon a spirit of
favouritism in the president, and would tend greatly to prevent the appoint-
ment of unfit characters from state prejudice, from family connexion, 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 dis-
position of offices, would be governed much more by his private inclinations
and interests, than when he was bound to submit the propriety ofhis choice
to the discussion and determination of a different and independent body;
and that body an intire branch of the legislature. The possibility of rejection,
would be a strong motive to care in proposing. The danger to his own repu-
tation, and, in the case of an elective magistrate, to his political existence,
from betraying a spirit of favouritism, or an unbecoming pursuit of popular-
ity, 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 ofbeing, in some way or other, personally allied to him, or of possessing
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No. 76
395
the necessary insignificance and pliancy to render them the obsequious in-
struments ofhis pleasure.
To this reasoning it has been objected, that the president, by the influ-
ence of the power of nomination, may secure the complaisance of the senate
to his views. The supposition ofuniversal venality in human nature, is
little less an error in political reasoning, than that of universal rectitude. The
institution of delegated power implies, that there is a portion of virtue and
honour among mankind, which may be a reasonable foundation of confi-
dence: 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 ex-
cepted) 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 ofthe 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 mem-
bers, but that the necessity of its co-operation, in the business of appoint-
ments, will be a considerable and salutary restraint upon the conduct of that
magistrate. Nor is the integrity of the senate the only reliance. The constitu-
tion has provided some important guards against the danger of executive
influence upon the legislative body: it declares, “that no senator or represen-
tative 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 emolu-
ments whereof shall have been increased during such time; and no person
holding any office under the United States, shall be a member of either house
during his continuance in office.”
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*This construction has since been rejected by the legislature; and it is now settled in
practice, that the power of displacing belongs exclusively to the president.
No. 77
by Alexander Hamilton
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
It has been mentioned as one of the advantages to be expected from the co-
operation of the senate, in the business of appointments, that it would con-
tribute to the stability of the administration. The consent of that body would
be necessary to displace as well as to appoint.* A change of the chief magis-
trate, therefore, would not occasion so violent or so general a revolution in
the officers of the government as might be expected, if he were the sole dis-
poser of offices. Where a man, in any station, had given satisfactory evidence
ofhis fitness for it, a new president would be restrained from attempting a
change in favour of a person more agreeable to him, by the apprehension
that the 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 dis-
approbation 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 appoint-
ments, it has in some cases been objected, that it would serve to give the presi-
dent 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
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No. 77
397
president would have an improper influence over the senate; because the sen-
ate would have the power of restraining him. This is an absurdity in terms. It
cannot admit of a doubt, that the intire power of appointment would enable
him much more effectually to establish a dangerous empire over that body,
than a mere power of nomination subject to their control.
Let us take a view of the converse of the proposition: “the senate would
influence the executive.” As I have had occasion to remark in several other
instances, the indistinctness of the objection forbids a precise answer. In what
manner is this influence to be exerted? In relation to what objects? The power
ofinfluencing 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 nega-
tive upon his nominations? Ifit be said they might sometimes gratify him
by an acquiescence in a favourite 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. Besides this, it is evident,
that the power which can originate the disposition ofhonours and emolu-
ments, is more likely to attract than to be attracted by the power which can
merely obstruct their course. Ifby influencing the president be meant re-
straining 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 uncon-
troled agency of that magistrate. The right of nomination would produce all
the good, without the ill.
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 the legislature, the circumstances attending an appointment,
from the mode of conducting it, would naturally become matters of notori-
ety; and the public could be at no loss to determine what part had been per-
formed 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
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The Federalist
398
their having counteracted the good intentions of the executive. If an ill ap-
pointment 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 ofappointment consists offrom 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 con-
stitution; 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 considerable number of four men, can
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 fre-
quently 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 and
important part of the administration, to prefer to offices men who are best
qualified for them; or whether he prostitutes that advantage to the advance-
ment 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 sub-
jects of speculation and conjecture.
Every mere council of appointment, however constituted, will be a con-
clave, 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 connexions to provide for, the desire of mutual gratification will beget
a scandalous bartering ofvotes and bargaining for places. The private at-
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No. 77
399
tachments ofone 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. Ifto avoid an accumulation ofoffices, 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 ex-
tent. 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 immedi-
ately 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 favouritism and intrigue in the
distribution of public honours, a decrease of stability in the administration
of the government, and a diminution of the security against an undue influ-
ence 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 ap-
pointments, without taking notice of a scheme, for which there has appeared
some, though but few advocates; I mean that of uniting the house of repre-
sentatives 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 ofthe stability, both ofthe executive and ofthe 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, en-
courages 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.
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The Federalist
400
Except some cavils about the power of convening either house of the leg-
islature, and that of receiving ambassadors, no objection has been made to
this class of authorities; nor could they possibly admit of any. It required in-
deed an insatiable avidity for censure, to invent exceptions to the parts which
have been assailed. 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 am-
bassadors, what I have said in a former paper will furnish a sufficient answer.
We have now completed a survey of the structure and powers of the exec-
utive department, which, I have endeavoured 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 the republican
sense . . . a due dependence on the people . . . a due responsibility? The an-
swer to this question has been anticipated in the investigation of its other
characteristics, and is satisfactorily deducible from these circumstances . . .
the election of the president once in four years by persons immediately cho-
sen by the people for that purpose; his liability, at all times, to impeachment,
trial, dismission from office, incapacity to serve in any other, and to the for-
feiture 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 favour 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 can an
enlightened and reasonable people desire?
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401
No. 78
by Alexander Hamilton
A view of the constitution of the judicial department
in relation to the tenure of good behaviour
We proceed now to an examination of the judiciary department of the pro-
posed 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 to its extent.
To these points, therefore, our observations shall be confined.
The manner ofconstituting it seems to embrace these several objects:
1st. The mode of appointing the judges. 2d. The tenure by which they are to
hold their places. 3d. The partition of the judiciary authority between differ-
ent 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 dis-
cussed 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 the judges who may be ap-
pointed by the United States are to hold their offices during good behaviour,
which is conformable to the most approved of the state constitutions . . .
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
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402
*The celebrated Montesquieu, speaking of them says, “of the three powers above men-
tioned, the judiciary is next to nothing.” Spirit ofLaws, vol. 1, page 186.
†Idem. page 181.
of good behaviour for the continuance in office of the judicial magistracy is
certainly one of the most valuable of the modern improvements in the prac-
tice 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 encroach-
ments and oppressions of the representative body. And it is the best expedi-
ent 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 dan-
gerous 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 hon-
ours, but holds the sword of the community; the legislature not only com-
mands the purse, but prescribes the rules by which the duties and rights
ofevery 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;* that it can never attack with success
either ofthe 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.Ӡ And it proves, in the
last place, that as liberty can have nothing to fear from the judiciary alone,
but would have everything to fear from its union with either of the other de-
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No. 78
403
partments; that as all the effects of such a union must ensue from a depen-
dence of the former on the latter, notwithstanding a nominal and apparent
separation; that as from the natural feebleness of the judiciary, it is in con-
tinual jeopardy of being overpowered, awed or influenced by its 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 its constitution; and in a great
measure as the citadel of the public justice and the public security.
The complete independence of the courts of justice is peculiarly essential
in a limited constitution. By a limited constitution I understand one which
contains certain specified exceptions to the legislative authority; such for in-
stance 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 the 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 ofparticular rights or privileges would amount to nothing.
Some perplexity respecting the rights of the courts to pronounce legis-
lative acts void, because contrary to the constitution, has arisen from an
imagination that the doctrine would imply a superiority ofthe 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 grounds 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 con-
stitution 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 repre-
sentatives of the people are superior to the people themselves; that men act-
ing 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 particu-
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The Federalist
404
lar provisions in the constitution. It is not otherwise to be supposed that the
constitution could intend to enable the representatives of the people to sub-
stitute 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, re-
garded by the judges as a fundamental law. It therefore belongs to them to as-
certain its meaning as well as the meaning of any particular act proceeding
from the legislative body. If there should happen to be an irreconcilable vari-
ance 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 judi-
cial 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 constitu-
tion, 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 contradic-
tory 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 ex-
pression. 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 de-
rived 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
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No. 78
405
*Vide Protest of the minority of the convention of Pennsylvania, Martin’s speech, &c.
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 author-
ity, ofan original and derivative power, the nature and reason ofthe 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 par-
ticular 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 repug-
nancy, 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 oftheir pleasure to that ofthe legislative body.
The observation, ifit proved anything, would prove that there ought to be
no judges distinct from that body.
Ifthen the courts ofjustice are to be considered as the bulwarks ofa
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 ardu-
ous a duty.
This independence of the judges is equally requisite to guard the consti-
tution and the rights of individuals from the effects of those ill humours
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 mean time, to occasion dangerous innovations in the
government, and serious oppressions of the minor party in the community.
Though I trust the friends of the proposed constitution will never concur
with its enemies,* in questioning that fundamental principle of republican
government, which admits the right of the people to alter or abolish the
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The Federalist
406
established constitution whenever they find it inconsistent with their happi-
ness; 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 exist-
ing 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 de-
parture 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 insti-
gated 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 safe-guard against the effects
of occasional ill humours in the society. These sometimes extend no farther
than to the injury ofthe private rights ofparticular classes ofcitizens, by
unjust and partial laws. Here also the firmness ofthe 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 ofan
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 influ-
ence upon the character of our governments, than but few may imagine. 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 to-day. And every man must now feel, that the inevitable tendency of
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No. 78
407
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 ofindividuals, 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. Ifthe power ofmaking 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 con-
sult popularity, to justify a reliance that nothing would be consulted but the
constitution and the laws.
There is yet a further and a weighty reason for the permanency of 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 oflaws is one of the inconveniences necessarily connected with the ad-
vantages 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 prece-
dents, 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 ofthem. Hence it is, that there can be but few men in the soci-
ety, 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 requi-
site integrity with the requisite knowledge. These considerations apprize us,
that the government can have no great option between fit characters; and that
a temporary duration in office, which would naturally discourage such char-
acters 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 pres-
ent circumstances of this country, and in those in which it is likely to be for
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The Federalist
408
*Vide Constitution ofMassachusetts, Chap. 2, Sect. 1, Art. 13.
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 infe-
rior 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 estab-
lished good behaviour as the tenure of judicial offices, in point of duration;
and that, so far from being blameable 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
by Alexander Hamilton
A further view of the judicial department, in relation to the
provisions for the support and responsibility of the judges
Next to permanency in office, nothing can contribute more to the indepen-
dence 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 ofhuman 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 resource on the occasional grants
of the latter. The enlightened friends to good government, in every state, have
seen cause to lament the want of precise and explicit precautions in the state
constitutions on this head. Some of these indeed have declared that perma-
nent * 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
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No. 79
409
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 fluctua-
tions in the value of money, and in the state of society, rendered a fixed rate
of compensation in the constitution inadmissible. What might be extrava-
gant to-day, might in half a century become penurious and 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 ofthe power ofthat body to change the condi-
tion 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
app[r]ehension ofbeing placed in a less eligible situation. The clause which
has been quoted combines both advantages. The salaries of judicial offices
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 re-
spect to him. It will be observed that a difference has been made by the con-
vention 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 du-
ration 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, ifthey 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 ap-
pointment, would become too small in the progress of their service.
This provision for the support of the judges bears every mark of prudence
and efficacy; and it may be safely affirmed that, together with the permanent
tenure of their offices, it affords a better prospect of their independence than
is discoverable in the constitutions of any of the states, in regard to their own
judges.
The precautions for their responsibility, are comprised in the article re-
specting impeachments. They are liable to be impeached for mal-conduct by
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The Federalist
410
the house ofrepresentatives, and tried by the senate, and ifconvicted, 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 indepen-
dence of the judicial character, and is the only one which we find in our own
constitution in respect to our own judges.
The want of a provision for removing the judges on account of inability,
has been a subject of complaint. But all considerate men will be sensible that
such a provision would either not be practised upon, or would be more liable
to abuse, than calculated to answer any good purpose. The mensuration of
the faculties of the mind has, I believe, no place in the catalogue of known
arts. An attempt to fix the boundary between the regions of ability and in-
ability, would much oftener give scope to personal and party attachments
and enmities, than advance the interests of justice, or the public good. The
result, except in the case of insanity, must for the most part be arbitrary; and
insanity, without any formal or express provision, may be safely pronounced
to be a virtual disqualification.
The constitution ofNew York, to avoid investigations that must forever be
vague and dangerous, has taken a particular age as the criterion of inability.
No man can be a judge beyond sixty. I believe there are few at present who do
not disapprove of this provision. There is no station, in relation to which it is
less proper than to that of a judge. The deliberating and comparing faculties
generally preserve their strength much beyond that period, in men who sur-
vive it; and when, in addition to this circumstance, we consider how few
there are who outlive the season of intellectual vigour, and how improbable
it is that any considerable proportion ofthe bench, whether more or less
numerous, should be in such a situation at the same time, we shall be ready
to conclude that limitations ofthis 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.
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411
No. 80
By Alexander Hamilton
A further view of the judicial department,
in relation to the extent of its powers
To judge with accuracy of the due 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 oflegislation: 2d. To all those which
concern the execution ofthe provisions expressly contained in the articles
of union: 3d. To all those in which the United States are a party: 4th. To all
those which involve the peace of the confederacy, whether they relate to
the intercourse between the United States and foreign nations, or to that be-
tween 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 unbiassed.
The first point depends upon this obvious consideration, that there ought
always to be a constitutional method of giving efficacy to constitutional pro-
visions. What, for instance, would avail restrictions on the authority of the
state legislatures, without some constitutional mode of enforcing the obser-
vance 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; others, with the principles of good government. The imposition
of duties on imported articles, and the emission of paper money, are speci-
mens 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 over-
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The Federalist
412
rule 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 any argument or comment, to
make it clearer than it is in itself. If there are such things as political axioms,
the propriety of the judicial power of a government being coextensive with
its legislative, may be ranked among the number. The mere necessity of uni-
formity in the interpretation of the national laws, decides the question. Thir-
teen independent courts of final jurisdiction over the same causes, arising
upon the same laws, is a hydra in government, from which nothing but con-
tradiction 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 un-
doubtedly 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, 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 contro-
versy was wholly relative to the lex loci, would not, if unredressed, be an ag-
gression upon his sovereign, as well as one which violated the stipulations of
a treaty, or the general law of nations. And a still greater objection to the dis-
tinction would result from the immense difficulty, if not impossibility, of a
practical discrimination between the cases of one complexion and those of
the other. So great a proportion of the controversies in which foreigners are
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No. 80
413
parties, involve national questions, that it is by far most safe, and most expe-
dient, 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 per-
haps not less essential to the peace of the union, than that which has been just
examined. History gives us a horrid picture of the dissentions 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 insti-
tution, in appeasing the disorders, and establishing the tranquillity ofthe
empire. This was a court invested with authority to decide finally all differ-
ences 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 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 ofour 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 es-
tablishes 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 of 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 funda-
mental a provision against all evasion and subterfuge, it is necessary that its
construction should be committed to that tribunal, which, having no local
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The Federalist
414
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 bigotted idol-
izers ofstate authority, have not thus far shown a disposition to deny the
national judiciary the cognizance of maritime causes. These so generally de-
pend on the laws of nations, and so commonly affect the rights of foreigners,
that they fall within the considerations which are relative to the public peace.
The most important part of them are, by the present confederation, submit-
ted 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 de-
termination of controversies between different states and their citizens. And
it ought to have the same operation, in regard to some cases, between the
citizens of the same state. Claims to land under grants of different states,
founded upon adverse pretensions of boundary, are of this description. The
courts of neither of the granting states could be expected to be unbiassed. The
laws may have even prejudged the question, and tied the courts down to de-
cisions in favour of the grants of the state to which they belonged. And 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 regu-
late 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 con-
vention, 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 am-
bassadors, other public ministers and consuls; to all cases of admiralty and
maritime jurisdiction; to controversies to which the United States shall be a
party; to controversies between two or more states; between a state and citi-
zens of another state; between citizens of different states; between citizens of
the same state, claiming lands under grants ofdifferent states; and between
a state or the citizens thereof, and foreign states, citizens and subjects.” This
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No. 80
415
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 constitu-
tion,” 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. They are not, for
instance, to emit paper money; but the interdiction results from the consti-
tution, and will have no connexion 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 under 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 oflitigation, 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 dis-
tinction 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 ne-
cessities 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 ne-
cessity 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 ex-
emplified 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
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The Federalist
416
the United States, and to all cases affecting ambassadors, other public minis-
ters and consuls. These belong to the fourth class of the enumerated cases, as
they have an evident connexion with the preservation of the national peace.
Third. To cases of admiralty and maritime jurisdiction. These form, alto-
gether, the fifth of the enumerated classes of causes, proper for the cogni-
zance 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 ofanother state; between citizens ofdifferent 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 in-
stances 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 depart-
ment, and which were necessary to the perfection of the system. If some
partial inconveniences should appear to be connected with the incorpora-
tion of any of them into the plan, it ought to be recollected, that the national
legislature will have ample authority to make such exceptions, and to pre-
scribe such regulations, as will be calculated to obviate or remove these in-
conveniences. The possibility of particular mischiefs can never be viewed, by
a well-informed mind, as a solid objection to a principle, which is calculated
to avoid general mischiefs, and to obtain general advantages.
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417
*Article 3, Sec. 1.
No. 81
by Alexander Hamilton
A further view of the judicial department,
in relation to the distribution of its authority
Let us now return to the partition of the judiciary authority between differ-
ent courts, and their relations to each other.
“The judicial power of the United States is to be vested in one supreme
court, and in such inferior courts as the congress may from time to time or-
dain and establish.”* That there ought to be one court of supreme and final
jurisdiction, is a proposition which is not likely to be contested. The reasons
for it have been assigned in another place, and are too obvious to need repe-
tition. 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, are
advocates, by implication at least, for 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 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
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The Federalist
418
government has been imitated in the state constitutions in general. The par-
liament 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 uncontrolable and remediless.” This, upon examination, will be found to
be altogether made up of false reasoning upon misconceived fact.
In the first place, there is not a syllable in the plan, which directly em-
powers 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 consti-
tution ought to be the standard of construction for the laws, and that wher-
ever there is an evident opposition, the laws ought to give place to the con-
stitution. But this doctrine is not deducible from any circumstance peculiar
to the plan of the convention; but from the general theory of a limited con-
stitution; 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 gen-
eral, 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 dis-
tinct body of magistrates, instead of being one of the branches of the legisla-
ture, as in the government of Great Britain and in that of this state. To insist
upon this point, the authors of the objection must renounce the meaning
they have laboured 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 ofthese
papers, that it is not violated by vesting the ultimate power of judging in a part
ofthe legislative body. But though this be not an absolute violation ofthat
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 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 to influence their
construction: still less could it be expected, that men who had infringed the
constitution, in the character oflegislators, would be disposed to repair the
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No. 81
419
breach in that ofjudges. Nor is this all: every reason which recommends
the tenure of good behaviour 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 knowl-
edge. The members ofthe 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 to apt to stifle the voice both oflaw 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 ofthe
legislature, but to distinct and independent bodies of men. Contrary to the
supposition ofthose who have represented the plan ofthe convention, in
this respect, as novel and unprecedented, it is but a copy ofthe constitu-
tions ofNew Hampshire, Massachusetts, Pennsylvania, Delaware, Maryland,
Virginia, North Carolina, South Carolina, and Georgia; and the preference
which has been given to these 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 in the latter, the impropriety
of the thing, on the general principles of law and reason, is the sole obstacle.
A legislature, without exceeding its province, cannot reverse a determination
once made, in a particular case; though it may prescribe a new rule for future
cases. This is the principle, and it applies, in all its consequences, exactly in
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*This power has been absurdly represented as intended to abolish all the county courts
in the several states, which are commonly called inferior courts. But the expressions of the
constitution are to constitute “tribunals inferior to the supreme court,” and the
evident design of the provision is to enable the institution of local courts subordinate to
the supreme, either in states or larger districts. It is ridiculous to imagine that county
courts were in contemplation.
the same manner and extent, to the state governments, as to the national gov-
ernment, 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 oc-
casions 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 com-
parative weakness; and from its total incapacity to support its usurpations by
force. And the inference is greatly fortified by the consideration of the im-
portant 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 the judges,
by a series of deliberate usurpations on the authority of the legislature, would
hazard the united resentment of the body intrusted with it, while this body
was possessed of the means of punishing their presumption, by degrading
them from their stations. While this ought to remove all apprehensions on
the subject, it affords, at the same time, a cogent argument for 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,* and the relations
which will subsist between these and the former.
The power of constituting inferior courts, is evidently calculated to obvi-
ate the necessity ofhaving recourse to the supreme court in every case of fed-
eral cognizance. It is intended to enable the national government to institute
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or authorize in each state or district of the United States, a tribunal compe-
tent 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 these courts should be allowed in the
utmost latitude; yet the substance of the power in question, may still be re-
garded as a necessary part of the plan, if it were only to authorize the national
legislature to commit to them the cognizance of causes arising out of the na-
tional constitution. To confer upon the existing courts of the several states the
power of determining such causes, 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 favour 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 exe-
cution of the national laws. And if there was a necessity for confiding to them
the original cognizance of causes arising under those laws, there would be a
correspondent necessity for leaving the door of appeal as wide as possible. In
proportion to the grounds ofconfidence in, or distrust ofthe subordinate
tribunals, ought to be the facility or difficulty of appeals. And well satisfied
as I am ofthe propriety ofthe appellate jurisdiction, in the several classes
ofcauses to which it is extended by the plan ofthe convention, I should
consider every thing calculated to give, in practice, an unrestrained course, to
appeals, as a source of public and private inconvenience.
I am not sure but that it will be found highly expedient and useful, to di-
vide the United States into four or five, or half a dozen districts; and to insti-
tute a federal court in each district, in lieu of one in every state. The judges
of these courts 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 consti-
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The Federalist
422
tuting inferior courts should exist in the full extent in which it is seen 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 su-
preme 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 sovereign. All questions in which they are
concerned, are so directly connected with the public peace, that as well for
the preservation of this, as out of respect to the sovereignties they represent,
it is both expedient and proper, that such questions should be submitted in
the first instance to the highest judicatory of the nation. Though consuls have
not in strictness a diplomatic character, yet as they are the public agents of the
nations to which they belong, the same observation is in a great measure ap-
plicable to them. In cases in which a state might happen to be a party, it would
ill suit its dignity to be turned over to an inferior tribunal.
Though it may rather be a digression from the immediate subject of this
paper, I shall take occasion to mention here a supposition which has excited
some alarm upon very mistaken grounds. It has been suggested that an as-
signment 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 sover-
eignty, 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 ofstate
sovereignty, were discussed in considering the article of taxation, and need
not be repeated here. A recurrence to the principles there established will sat-
isfy us, that there is no colour to pretend that the state governments would,
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No. 81
423
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 pretension
to a compulsive force. They confer no right of action, independent of the sov-
ereign 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 that it
could not be done, without waging war against the contracting state: and to
ascribe the federal courts, by mere implication, and in destruction of a pre-
existing right of the state governments, a power which would involve such a
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 su-
preme 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 oflaw; but the clamours have been loud against
it as applied to matters of fact. Some well-intentioned men in this state, de-
riving 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 favour of the civil law mode of trial, which prevails in our courts of
admiralty, probates, 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 ofthe civil law. But if I am not misinformed, the
same meaning would not be given to it in any part ofNew England. There
an appeal from one jury to another, is familiar both in language and practice,
and is even a matter of course, until there have been two verdicts on one side.
The word “appellate,” therefore, will not be understood in the same sense in
New England, as in New-York, which shows the impropriety ofa technical
interpretation derived from the jurisprudence of a particular state. The ex-
pression 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
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424
*This word is a compound of jus and dictio, juris, dictio or a speaking or pro-
nouncing of the law.
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 ofa 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 su-
preme 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 it not be said, with
the strictest propriety, when a writ of error is brought from an inferior to a
superior court oflaw 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 pro-
nounces the law arising upon it. This is jurisdiction ofboth 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 jurisdic-
tion ofboth 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 the ground, that the expressions, “appellate jurisdic-
tion, 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 deter-
minable in different modes, some in the course of the common law, others
in the course of the civil law. In the former, the revision of the law only
will be, generally speaking, the proper province of the supreme court; in the
latter, the re-examination of the fact is agreeable to usage, and in some cases,
of which prize causes are an example, might be essential to the 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 orig-
inally tried by a jury, because in the courts of some of the states all causes
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425
*I hold that the states will have concurrent jurisdiction with the subordinate federal
judicatories, in many cases of federal cognizance, as will be explained in the next paper.
are tried in this mode;* and such an exception would preclude the revision
of matters of fact, as well where it might be proper, as where it might be im-
proper. 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 sup-
posed abolition of the trial by jury, by the operation of this provision, is falla-
cious 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 rea-
son already intimated, it should be thought too extensive, it might be quali-
fied 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 ju-
dicial 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 juris-
diction has been reserved to the supreme court, and the rest consigned to the
subordinate tribunals; that the supreme court will possess an appellate juris-
diction, both as to law and fact, in all the cases referred to them, but 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 or-
dinary degree of prudence and integrity in the national councils, will insure
us solid advantages from the establishment of the proposed judiciary, with-
out exposing us to any of the inconveniences which have been predicted from
that source.
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426
*No. XXXII.
No. 82
by Alexander Hamilton
A further view of the judicial department,
in reference to some miscellaneous questions
The erection of a new government, whatever care or wisdom may distinguish
the work, cannot fail to originate questions of intricacy and nicety; and these
may, in a particular manner, be expected to flow from the establishment of a
constitution founded upon the total or partial incorporation of a number of
distinct sovereignties. Time only can mature and perfect so compound a sys-
tem, liquidate the meaning of all the parts, and 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 prin-
cipal 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 rela-
tion will they stand to the national tribunals? These are inquiries which we
meet with in the mouths of men of sense, and which are certainly entitled to
attention.
The principles established in a former paper* teach us that the states will
retain all pre-existing authorities which may not be exclusively delegated to
the federal head; and that this exclusive delegation can only exist in one of
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 exer-
cise 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
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No. 82
427
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 appear-
ance 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 court, and as many subordinate courts, as congress should think
proper to appoint; in other words, that the United States should exercise the
judicial power with which they are to be invested, through one supreme tri-
bunal, and a certain number of inferior ones, to be instituted by them. The
first excludes, the last admits, the concurrent jurisdiction of the state tribu-
nals; and as the first would amount to an alienation of state power by impli-
cation, the last appears to me 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 cog-
nizance. It is not equally evident in relation to cases which may grow out of,
and be peculiar to, the constitution to be established; for not to allow the state
courts a right of jurisdiction in such cases, can hardly be considered as the
abridgment of a pre-existing authority. I mean not therefore to contend, that
the United States, in the course oflegislation upon the objects intrusted to
their direction, may not commit the decision of causes arising upon a par-
ticular 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 cog-
nizance 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 ju-
diciary power of every government looks beyond its own local or municipal
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The Federalist
428
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 ofJapan, not less than ofNew 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 ofkindred systems, and as parts of one whole,
the inference seems to be conclusive, that the state courts would have a con-
current 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 an-
swer, 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 juris-
diction to the supreme court in all the enumerated cases of federal cogni-
zance, 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 na-
tional 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 pur-
poses of the proposed government, and would essentially embarrass its mea-
sures. Nor did 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 ofthe laws ofthe 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 decision. 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
which give appellate jurisdiction to the supreme court, to appeals from the
subordinate federal courts, instead of allowing their extension to the state
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No. 82
429
*Section 8th, Article 1st.
courts, would be to abridge the latitude of the terms, in subversion of the in-
tent, contrary to every sound rule of interpretation.
But could an appeal be made to lie from the state courts, to the subordi-
nate federal judicatories? This is another of the questions which have been
raised, and of greater difficulty than the former. The following considera-
tions countenance the affirmative. The plan of the convention, in the first
place, authorizes the national legislature “to constitute tribunals inferior to
the supreme court.”* It declares in the next place, that the judicial power
ofthe United States shall be vested in one supreme court, and in such infe-
rior 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 de-
scribed for them are, that they shall be “inferior to the supreme court,” and
that they shall not exceed the specified limits of the federal judiciary. Whether
their authority shall be original or appellate, or both, is not declared. All this
seems to be left to the discretion of the legislature. And this being the case, I
perceive at present no impediment to the establishment of an appeal from
the state courts, to the subordinate national tribunals; and many advantages
attending the power of doing it may be imagined. It would diminish the mo-
tives to the multiplication of federal courts, and would admit of arrange-
ments 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, in-
stead ofbeing carried to the supreme court, may be made to lie from the state
courts, to district courts of the union.
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430
No. 83
by Alexander Hamilton
A further view of the judicial department,
in relation to the trial by jury
The objection to the plan of the convention, which has met with most suc-
cess in this state, is 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 ofthe opponents ofthe
plan. The mere silence of the constitution in regard to civil causes, is repre-
sented 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 lat-
ter, would be as vain and fruitless, as to attempt 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 refuta-
tion, having 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 par-
ticulars, is an exclusion of generals;” or, “the expression of one thing, is the
exclusion ofanother.” Hence, say they, as the constitution has established
the trial by jury in criminal cases, and is silent in respect to civil, this silence
is an implied prohibition of trial by jury, in regard to the latter.
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No. 83
431
The rules oflegal interpretation, are rules of common sense, adopted by the
courts in the construction of the laws. The true test, therefore, of a just ap-
plication 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 sup-
pose, 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 previ-
ous 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 cer-
tain 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 an express
injunction; but it is left at large in relation to civil causes, for the very reason
that there is a total silence on the subject. The specification of an obligation
to try all criminal causes in a particular mode, excludes indeed the obligation
of employing the same mode in civil causes, but does not abridge the power
of the legislature to appoint that mode, if it should be thought proper. The
pretence, therefore, that the national legislature would not be at liberty to
submit all the civil causes of federal cognizance to the determination of juries,
is a pretence destitute of all 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 therefore in-
admissible. Even if these maxims had a precise technical sense, correspon-
ding with the ideas of those who employ them upon the present occasion,
which, however, is not the case, they would still be inapplicable to a consti-
tution 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 endeavour to ascertain their proper application. This will be
best done by examples. The plan of the convention declares, that the power
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of congress, or in other words of the national legislature, shall extend to cer-
tain enumerated cases. This specification of particulars evidently excludes all
pretention 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 authority of the federal judicatures, is declared by the
constitution to comprehend certain cases particularly specified. The expres-
sion of those cases, marks the precise limits beyond which the federal courts
cannot extend their jurisdiction; because the objects of their cognizance be-
ing 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.
From what has been said, 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 situation in which it is placed by the state constitutions. The founda-
tion 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 pre-
scribe. 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 ar-
ticles 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 al-
most 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 sys-
tem 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
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of free government. For my own part, the more the operation of the insti-
tution has fallen under my observation, the more reason I have discovered
for holding it in high estimation; and it would be altogether superfluous to
examine to what extent it deserves to be esteemed useful or essential in a rep-
resentative 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 ac-
knowledge, that I cannot readily discern the inseparable connexion between
the existence ofliberty, and the trial by jury, in civil cases. Arbitrary im-
peachments, arbitrary methods of prosecuting pretended offences, arbitrary
punishments upon arbitrary convictions, have ever appeared to me the
great engines of judicial despotism; and all these have 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 the taxes to be laid, to the objects upon which they are to be im-
posed, or to the rule by which they are to be apportioned. If it can have any
influence, therefore, it must be upon the mode of collection, and the conduct
of the officers intrusted with the execution of the revenue laws.
As to the mode of collection in this state, under our own constitution, the
trial by jury is in most cases out of use. The taxes are usually levied by the
more summary proceeding of distress and sale, as in cases of rent. And it is
acknowledged on all hands, that this is essential to the efficacy of the rev-
enue 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 burthensome than the original sum of the tax to be levied.
And as to the conduct of the officers of the revenue, the provision in
favour of trial by jury in criminal cases, will afford the desired security. Wil-
ful abuses of a public authority, to the oppression of the subject, and every
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434
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 cir-
cumstances foreign to the preservation of liberty. The strongest argument in
its favour 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 corrup-
tion 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 oflittle use to prac-
tice 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 ofboth institutions. By increasing the obstacles
to success, it discourages attempts to seduce the integrity of either. The temp-
tations to prostitution, which the judges might have to surmount, must cer-
tainly be much fewer, while the co-operation of a jury is necessary, than they
might be, if they had themselves the exclusive determination of all causes.
Notwithstanding, therefore, the doubts I have expressed, as to the essen-
tiality of trial by jury in civil suits 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 constitu-
tional provision in its favour, if it were possible to fix with accuracy the lim-
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*It has been erroneously insinuated, with regard to the court of chancery, that this
court generally tries disputed facts by a jury. The truth is, that references to a jury in that
court rarely happen, and are in no case necessary but where the validity of a devise of land
comes into question.
its within which it ought to be comprehended. This, however, is in its own
nature an affair of much difficulty; 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, the 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 inser-
tion 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 estab-
lishments 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 chan-
cery. 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 ofthe canon or civil law, without
the aid of a jury.* In New Jersey there is a court of chancery which proceeds
like ours, but neither courts of admiralty, nor of probates, in the sense in
which these last are established with us. In that state, the courts of 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 com-
mon law courts have equity jurisdiction. It has a court of admiralty, but none
of probates, at least on the plan of ours. Delaware has in these respects imi-
tated Pen[n]sylvania. Maryland approaches more nearly to New York, as does
also Virginia, except that the latter has a plurality of chancellors. North Caro-
lina 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
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The Federalist
436
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 juris-
diction 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 ex-
tends 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 oflaw, 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 leav-
ing 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 mi-
nority of Pennsylvania have proposed this mode of expression for the pur-
pose, “trial by jury shall be as heretofore;” and this I maintain would be in-
applicable and indeterminate. The United States, in their collective capacity,
are the object to which all general provisions in the constitution must be
understood 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, strictly speaking, unknown; because the present federal govern-
ment has no judiciary power whatever; and consequently there is no ante-
cedent establishment, to which the term heretofore could properly relate. It
would therefore be destitute of precise meaning, and inoperative from its
uncertainty.
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No. 83
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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 suits 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 some-
times 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 occa-
sions of reprisal and war. Though the true 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 men-
tion, that the method of determining them has been thought worthy of par-
ticular 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 im-
policy 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 incumbering the government with
any constitutional provisions, the propriety of which is not indisputable.
My convictions are equally strong, that great advantages result from the
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The Federalist
438
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* 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 between the jurisdictions has the contrary effect of rendering one
a sentinel over the other, and ofkeeping each within the expedient limits. Be-
sides this, the circumstances that constitute cases proper for courts of equity,
are in many instances so nice and intricate, that they are incompatible with
the genius of trials by jury. They require often such long and critical investi-
gation, as would be impracticable to men called occasionally from their occu-
pations, 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, fre-
quently comprehend a long train of minute and independent particulars.
It is true, that the separation ofthe equity from the legal jurisdiction, is
peculiar to the English system of jurisprudence; the model which has been
followed in several of the states. But it is equally true, that the trial by jury
has been unknown in every instance in which they have been united. And the
separation is essential to the preservation ofthat institution in its pristine
purity. The nature of a court of equity will readily permit the extension of its
jurisdiction to matters oflaw, 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 appear to be conclusive reasons against incorporating the systems
of all the states, in the formation of the national judiciary; according to what
*It is true that the principles by which that reliefis governed are now reduced to a
regular system; but it is not the less true that they are in the main applicable to special
circumstances, which form exceptions to general rules.
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No. 83
439
may be conjectured to have been the intent 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 corrobora-
tion 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 charac-
terize 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 bound-
aries 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
ofthem, 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
tribunals varied as to common law jurisdiction.
It is obvious, therefore, that the Massachusetts proposition cannot oper-
ate as a general regulation, until some uniform plan, with respect to the lim-
its of common law and equitable jurisdictions, shall be adopted by the differ-
ent states. To devise a plan of that kind, is a task arduous in itself, and which
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440
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 consti-
tution 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 should entertain the same opinion of our institutions which we do our-
selves. It is natural to suppose that they are 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 pre-
sumed that the adoption of it in that body, would have been rendered difficult
by the predilection of each representation in favour 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 ofjealousy and disgust in the other states, at
the partiality which had been shown to the institutions of one. The enemies
of the plan would have been furnished with a fine pretext, for raising a host
oflocal prejudices against it, which perhaps might have hazarded, in no in-
considerable degree, its final establishment.
To avoid the embarrassments ofa definition ofthe 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 mem-
ber 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.
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No. 83
441
*Vide No. LXXXI in which the supposition of its being abolished by the appellate ju-
risdiction in matters of fact being vested in the supreme court, is examined and refuted.
I cannot but persuade myselfon 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 oflib-
erty 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, those in which the great body
of the community is interested, that mode of trial will remain in full force, as
established in the state constitutions, untouched and unaffected by the plan
of the convention; that it is in no case abolished* by that plan; and that there
are great, if not insurmountable difficulties in the way of making any precise
and proper provision for it, in a constitution for the United States.
The best judges of the matter will be the least anxious for a constitutional
establishment of the trial by jury in civil cases, and will be the most ready to
admit, that the changes which are continually happening in the affairs of
society, may render a different mode of determining questions of property,
preferable in many cases, in which that mode of trial now prevails. For my
own 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 pres-
ent 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 im-
possible in the nature of the thing, to fix the salutary point at which the op-
eration 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
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442
or Great Britain. It may be added, that these encroachments have generally
originated with the men who endeavour to persuade the people they are the
warmest defenders of popular liberty, but who have rarely suffered constitu-
tional obstacles to arrest them in a favourite career. The truth is, that the gen-
eral 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
by Alexander Hamilton
Concerning several miscellaneous objections
In the course of the foregoing review of the constitution, I have endeavoured
to answer most of the objections which have appeared against it. There re-
main, however, a few which either did not fall naturally under any particular
head, or were forgotten in their proper places. These shall now be discussed:
but as the subject has been drawn into great length, I shall so far consult
brevity, as to comprise all my observations on these miscellaneous points in
a single paper.
The most considerable of the remaining objections is, that the plan of the
convention contains no bill of rights. Among other answers given to this, it
has been upon different occasions remarked, that the constitutions of several
of the states are in a similar predicament. I add, that New York is of the num-
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ber. And yet the persons who in this state oppose the new system, while they
profess an unlimited admiration for our particular constitution, are among
the most intemperate partizans of a bill of rights. To justify their zeal in this
matter, they allege two things: one is, that though the constitution ofNew
York has no bill of rights prefixed to it, yet it contains in the body of it, vari-
ous provisions in favour of particular privileges and rights, which, in sub-
stance, 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, are equally secured.
To the first I answer, that the constitution offered by the convention con-
tains, 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 im-
peachment shall not extend further than to removal from office, and dis-
qualification to hold and enjoy any office of honour, trust, or profit under the
United States; but the party convicted shall, nevertheless, be liable and sub-
ject to indictment, trial, judgment, and punishment, according to law.” Sec-
tion 9. of the same article, clause 2. “The privilege of the writ of habeas corpus
shall not be suspended, unless when in cases ofrebellion 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 III. section 2. clause 3. “The trial of all crimes, except in cases of im-
peachment, 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 trea-
son, 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.”
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*Vide Blackstone’s Commentaries, vol. 1, page 136.
†Idem. vol. 4, page 438.
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 provi-
sions in our constitution, are perhaps greater securities to liberty 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 imprison-
ments have been, in all ages, the favourite and most formidable instruments
oftyranny. The observations ofthe judicious Blackstone,* in reference to
the latter, are well worthy ofrecital: “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 ofthe person, by
secretly hurrying him to jail, where his sufferings are unknown or forgotten,
is a less public, a less stricking, and therefore a more dangerous engine of ar-
bitrary government.” And as a remedy for this fatal evil, he is every where
peculiarly emphatical in his encomiums on the habeas corpus act, which in
one place he calls “the bulwark of the British constitution.”†
Nothing need be said to illustrate the importance of the prohibition of
titles of nobility. This may truly be denominated the corner stone of republi-
can 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 re-
peal 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 to limit the power of the
government itself.
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No. 84
445
It has been several times truly remarked, that bills of rights are, in their ori-
gin, stipulations between kings and their subjects, abridgments of prerogative
in favour 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 suc-
ceeding princes. Such was the petition of right assented to by Charles the First,
in the beginning ofhis 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 evi-
dent, 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 ofliberty to ourselves and our posterity, do
ordain and establish this constitution for the United States of America:” this
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 regu-
late the general political interests ofthe nation, than to one which has the
regulation ofevery species ofpersonal and private concerns. Iftherefore
the loud clamours against the plan of 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
they are contended for, are not only unnecessary in the proposed constitu-
tion, but would even be dangerous. They would contain various exceptions
to powers not granted; and on this very account, would afford a colourable
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
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446
*To show that there is a power in the constitution, by which the liberty ofthe press
may be affected, recourse has been had to the power of taxation. It is said, that duties may
be laid upon publications so high as to amount to a prohibition. I know not by what logic
it could be maintained, that the declarations in the state constitutions, in favour of the
freedom of the press, would be a constitutional impediment to the imposition of duties
upon publications by the state legislatures. It cannot certainly be pretended that any
degree ofduties, however low, would be an abridgment ofthe liberty ofthe press. We
know that newspapers are taxed in Great Britain, and yet it is notorious that the press no
where enjoys greater liberty than in that country. And if duties of any kind may be laid
without a violation of that liberty, it is evident that the extent must depend on legislative
discretion, regulated by public opinion; so that after all general declarations respecting the
liberty ofthe press, will give it no greater security than it will have without them. The
same invasions of it may be effected under the state constitutions which contain those dec-
larations through the means of taxation, as under the proposed constitution, which has
nothing of the kind. It would be quite as significant to declare, that government ought to
be free, that taxes ought not to be excessive, &c. as that the liberty of the press ought not
to be restrained.
provision would confer a regulating power; but it is evident that it would fur-
nish, 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 author-
ity, which was not given, and that the provision against restraining the liberty
of the press afforded a clear implication, that a right to prescribe proper reg-
ulations 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 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 ofthe 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 decla-
rations may be inserted in any constitution respecting it, must altogether de-
pend on public opinion, and on the general spirit of the people and of the
government.* And here, after all, as intimated upon another occasion, must
we seek for the only solid basis of all our rights.
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No. 84
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There remains but one other view of this matter to conclude the point.
The truth is, after all the declamation 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. In like man-
ner the proposed constitution, if adopted, will be the bill of rights of the
union. Is it one object of a bill of rights to declare and specify the political
privileges of the citizens in the structure and administration of the govern-
ment? This is done in the most ample and precise manner in the plan of
the convention; comprehending various 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 there-
fore 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 provided for in any part of the instrument which
establishes the government. Whence it must be apparent, that much of what
has been said on this subject rests merely on verbal and nominal distinctions,
entirely foreign to the substance of the thing.
Another objection, which, from the frequency of its repetition, may be
presumed to be 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 con-
stituent, of the conduct of the representative body. This argument, if it proves
any thing, proves that there ought to be no general government whatever. For
the powers which, it seems to be agreed on all hands, ought to be vested
in the union, cannot be safely intrusted to a body which is not under every
requisite control. But there are satisfactory reasons to show, that the objec-
tion 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 any distant county must regulate their
judgment of the conduct of their representatives in the state legislature? Of
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The Federalist
448
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 informa-
tion? Evidently from the complexion of public measures, from the public
prints, from correspondences with their representatives, and with other per-
sons who reside at the place of their deliberations.
It is equally evident that the like 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 dis-
tance 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 de-
partment 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 behaviour of those who represent their con-
stituents in the national councils, and can readily communicate the same
knowledge to the people. Their disposition to apprize 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 in-
formed 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 ofgovernment will, in all questions that affect the gen-
eral 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 colourable 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 news-
papers have teemed with the most inflammatory railings on this head; yet
there is nothing clearer than that the suggestion is entirely void of founda-
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449
*Vide Rutherford’s Institutes, vol. 2, book II, chap. x, sect. xiv, and xv. . . . Vide also
Grotius, book 11, chap. ix, sect. viii, and ix.
tion, the offspring of extreme ignorance or extreme dishonesty. In addition
to the remarks I have made upon the subject in another place, I shall only
observe, that as it is a plain dictate of common sense, so it is also an estab-
lished 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.”*
The last objection of any consequence at present recollected, turns upon
the article of expense. If it were even true, that the adoption of the proposed
government would occasion a considerable increase of expense, it would be
an objection that ought to have no weight against the plan. The great bulk of
the citizens of America, are with reason convinced that union is the basis of
their political happiness. Men of sense of all parties now, with few exceptions,
agree that it cannot be preserved under the present system, nor without radi-
cal alterations; that new and extensive powers ought to be granted to the na-
tional head, and that these require a different organization of the federal gov-
ernment; a single body being an unsafe depository of such ample authorities.
In conceding all this, the question of expense is 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 con-
sist ofonly sixty-five persons; the same number ofwhich 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 ofthe
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 ofexpense to spring? One source
indicated, is the multiplication of offices under the new government. Let us
examine this a little.
It is evident that the principal departments of the administration under
the present government, are the same which will be required under the new.
There are now a secretary at war, a secretary for foreign affairs, a secretary for
domestic affairs, a board of treasury consisting of three persons, a treasurer,
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The Federalist
450
assistants, clerks, &c. These offices 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 em-
ployed 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? 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, that now keeps congress sit-
ting through the year, will be transacted by the president. Even the manage-
ment of foreign negotiations will naturally devolve upon him, according to
general principles concerted with the senate, and subject to their final con-
currence. Hence it is evident, that a portion of the year will suffice for the ses-
sion ofboth 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 rep-
resentatives shall be increased greatly beyond its present number, there will
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No. 84
451
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. It has thence happened, that the sessions of
the state legislatures have been protracted greatly beyond what was necessary
for the execution of the mere local business. More than half their time has
been frequently employed in matters which related to the United States. Now
the members who compose the legislatures of the several states amount to
two thousand and upwards; which number has hitherto performed what,
under the new system, will be done in the first instance by sixty-five persons,
and probably at no future period by above a fourth or a fifth of that number.
The congress under the proposed government will do all the business of the
United States themselves, without the intervention of the state legislatures,
who thenceforth will have only to attend to the affairs of their particular
states, and will not have to sit in any proportion as long as they have hereto-
fore done. This difference, in the time ofthe sessions ofthe state legisla-
tures, 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 ex-
pense from the establishment of the proposed constitution, are much fewer
than may have been imagined; that they are counterbalanced by considerable
objects of saving; that that, while it is questionable on which side of the scale
will preponderate, it is certain that a government less expensive would be in-
competent to the purposes of the union.
publius
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452
No. 85
by Alexander Hamilton
Conclusion
According to the formal division ofthe subject ofthese papers, announced
in my first number, there would appear still to remain for discussion two
points. . . . “the analogy of the proposed government to your own state con-
stitution,” and “the additional security which its adoption will afford to re-
publican government, to liberty, and to property.” But these heads have been
so fully anticipated, and so completely exhausted in the progress of the work,
that it would now scarcely be possible to do any thing more than repeat, in a
more dilated form, what has been already 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 excellencies 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 provi-
sion 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 ex-
isting 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, who profess to be de-
voted admirers of the government of this state, 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, consist chiefly in the
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No. 85
453
restraints which the preservation of the union will impose upon local factions
and insurrections, and upon the ambition of powerful individuals in single
states, who might acquire credit and influence enough, from leaders and
favourites, to become the despots ofthe people: in the diminution ofthe
opportunities to foreign intrigue, which the dissolution of the confederacy
would invite and facilitate; in the prevention of extensive military establish-
ments, which could not fail to grow out of wars between the states in a dis-
united situation; in the express guarantee of a republican form of govern-
ment to each; in the absolute and universal exclusion of titles of nobility; and
in the precautions against the repetition of those practices on the part of the
state governments, which have 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 endeavours 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 indig-
nation ofevery man who feels in his own bosom a refutation ofthe cal-
umny. The perpetual changes which have been rung upon the wealthy, the
well born, and the great, are such as to inspire the disgust of all sensible men.
And the unwarrantable concealments and misrepresentations, which have
been in various ways practised to keep the truth from the public eye, are of
a nature to demand the reprobation ofall honest men. It is possible that
these circumstances may have occasionally betrayed me into intemper-
ances of expression which I did not intend: it is certain that I have frequently
felt a struggle between sensibility and moderation; and if the former has in
some instances prevailed, it must be my excuse, that it has been neither often
nor much.
Let us now pause, and ask ourselves whether, in the course of these papers,
the proposed constitution has not been satisfactorily vindicated from the
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454
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 ofhis conscience and understanding, and to act agreeably to the genuine
and sober dictates ofhis judgment. This is a duty from which nothing can
give him a dispensation. It is one that he is called upon, nay, constrained by
all the obligations that form the bands on 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, 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 un-
able to discern any real force in those by which it has been assailed. I am per-
suaded, that it is the best which our political situation, habits, and opinions
will admit, and superior to any the revolution has produced.
Concessions on the part of the friends of the plan, that it has not a claim
to absolute perfection, have afforded matter of no small triumph to its ene-
mies. 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,
but it is plausible only. In the first place I remark, that the extent of these con-
cessions 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 sys-
tem, 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 a one as promises every species of security which a rea-
sonable people can desire.
I answer in the next place, that I should esteem it the extreme of impru-
dence to prolong the precarious state of our national affairs, and to expose
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No. 85
455
*Entitled “An Address to the people of the state of New York.”
†It may rather be said ten, for though two-thirds may set on foot the measure, three-
fourths must ratify.
the union to the jeopardy of successive experiments, in the chimerical pur-
suit of a perfect plan. I never expect to see a perfect work from imperfect man.
The result of the deliberations of all collective bodies, must necessarily be a
compound as well of the errors and prejudices, as of the good sense and wis-
dom 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 in-
clinations. How can perfection spring from such materials?
The reasons assigned in an excellent little pamphlet lately published in this
city,* unanswerably show the utter improbability of assembling a new con-
vention, under circumstances in any degree so favourable 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 itselfhas had
an extensive circulation. It is certainly well worth the perusal of every friend
to his country. There is however one point oflight in which the subject of
amendments still remains to be considered; and in which it has not yet been
exhibited. I cannot resolve to conclude, without first taking a survey of it in
this aspect.
It appears to me susceptible of complete demonstration, that it will be far
more easy to obtain subsequent than previous amendments to the constitu-
tion. 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 there-
fore require the concurrence of thirteen states. If, on the contrary, the con-
stitution should once be ratified by all the states as it stands, alterations in it
may at any time be effected by nine states. In this view alone the chances are
as thirteen to nine† in favour of subsequent amendments, 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 ofmen charged with its original forma-
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The Federalist
456
tion, very different combinations of the parts upon different points. Many of
those who form the 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 par-
ties 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 prevail. 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 gov-
ernment, 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 thor-
ough conviction that any amendments which may, upon mature considera-
tion, be thought useful, will be applicable to the organization of the govern-
ment, 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 force
in it on another account. The intrinsic difficulty of governing thirteen
states, 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 be-
yond the possibility ofdoubt, 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 ap-
plication of the legislatures of two-thirds of the states, (which at present
amount to nine) to call a convention for proposing amendments, which shall
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No. 85
457
*Hume’s Essays, vol. 1, page 128. . . . The rise of arts and sciences.
be valid to all intents and purposes as part of the constitution, when rati-
fied by the legislatures of three-fourths of the states or by conventions in
three-fourths thereof.” The words of this article are peremptory. The con-
gress “shall call a convention.” Nothing in this particular is left to discretion.
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 be a fallacy, certain it is that I am myself de-
ceived 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 mathematical demonstration.
Those who see the matter in the same light, however zealous they may be for
amendments, must agree in the propriety of a previous adoption, as the most
direct road to their object.
The zeal for attempts to amend, prior to the establishment of the consti-
tution, 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 compre-
hensive, 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
labour: time must bring it to perfection: and the feeling of inconve-
niences must correct the mistakes which they inevitably fall into, in their
first trials and experiments.”* These judicious reflections contain a lesson of
moderation to all the sincere lovers of the union, and ought to put them
upon their guard against hazarding anarchy, civil war, a perpetual alienation
of the states from each other, and perhaps the military despotism of a victo-
rious 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 situ-
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The Federalist
458
ation as imaginary. A nation without a national government, is 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 com-
pletion ofwhich I look forward with trembling anxiety. In so arduous an
enterprise, I can reconcile it to no rules of prudence to let go the hold we now
have, upon seven out of the thirteen states; and after having passed over so
considerable a part of the ground, to re-commence 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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Glossary
Achaean League. The first Achaean League, which comprised the twelve cities
in the Achaean region of ancient Greece, was a religious confederation. It
came into existence sometime in the fifth century b.c., in opposition to the
other Greek city-states. In the fourth century b.c., it fought with the Spartans
against the Thebans and subsequently joined an alliance against Philip of
Macedon. The league fell apart shortly after the death of Alexander the Great
(323 b.c.). The second league was a democratic political confederation insti-
tuted in the third century b.c., owing to the efforts of Aratus, who united the
remaining Achaean cities with cities outside Achaea. Its elaborate constitu-
tion provided for a powerful magistracy, an elected assembly, and a council
of ten who shared military and administrative responsibilities. The Achaean
League is regarded as one of the most fully developed federal republics of the
ancient world. Members of the confederation worked closely together, every
city having equal rights with the others. In foreign affairs the federal gov-
ernment was supreme; local affairs were regulated at general meetings held
twice a year by the citizens of all the towns. At the beginning of the second
century b.c., Philopoemen was obliged to ally the league with Rome. With
Roman help he managed to take control of the Peloponnesus, including
Sparta. Friction soon arose between Rome and the league, as well as between
factions within the league, some of which, led by Callicrates (at one time the
Achaean ambassador to Rome), were avowedly sympathetic to Roman inter-
ests. While the league was almost completely under Roman control, it exer-
cised its independence one last time by attacking Sparta (150 b.c.) in defiance
ofRoman orders. In retribution, the Romans crushed the league’s army in
146 b.c. and dissolved the league, thereby ending the last stronghold of free-
dom in Greece.
Achaeus. Legendary son ofXuthus and Creusa who named the region Achaea
and the people Achaeans for himself. See Achaean League; Achaia (Achaea)
459
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Glossary
460
Achaia (Achaea). A mountainous district in the Peloponnesus bordering on
the Gulf of Corinth, thought to be the original home of the Achaean people.
The cities of the Peloponnesus were members of the Achaean League (q.v.).
The name Achaean was also applied to the people living in Thessaly in the re-
gion ofPhthia, and sometimes to all the Greeks collectively.
Aetolians (Etolians). Residents of a region of ancient Greece located north of
Achaea and the Gulf of Corinth. The Aetolian League was a confederation of
Greek cities modeled after the Achaean League (q.v.). It waged war against
Macedon in 323 b.c., against the Gauls in 279 b.c., and against the Achaean
League in 220 b.c. Though an ally ofRome, it was dissolved by the Romans
in 167 b.c.
Alexander (“the Great”) (356 –323 b.c.). Son ofPhilip II, king ofMacedon
(336 –323 b.c.), and conqueror of the civilized world. Philip greatly admired
Greek culture and procured the great philosopher Aristotle to tutor Alexan-
der. When Philip was murdered in 336 b.c., Alexander succeeded his father,
restored order in Macedonia, and subdued the rebellious Greek city-states
his father had defeated. He reduced the great city of Thebes to rubble. In
334 b.c. Alexander then invaded Persia. Following his victory over the Per-
sians at the Granicus River, he liberated the Greek cities of Asia Minor from
Persian rule and in 332 b.c. went on to Egypt to free the Egyptians from the
yoke ofPersian tyranny. There he founded the city of Alexandria, the first
of seventy communities he established that introduced Greek culture to the
non-Hellenic world. Finally, in 330 b.c. he overthrew the Persian empire of
Darius III. When he entered India in 326 b.c., however, his faithful and fear-
less Macedonian troops refused to cross the Ganges River, and Alexander
was forced to turn back. He never reached home and died at Babylon, not
yet thirty-three years of age. Alexander changed the course of history by
spreading Greek culture throughout the ancient world. Napoleon thought
Alexander the greatest military leader in history.
Amphictyonic Council. The Amphictyonic League was a loose confedera-
tion of ancient Greek city-states dating back to early Greek history. There
were several different confederations, the most famous being that of Delphi.
Twelve tribes were represented on one council ofthe Amphictyons at Del-
phi, which met twice a year. The council has often been mistaken for a fed-
eral council of Greece (see, e.g., Madison’s essay in Federalist No. 18). The
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461
council, however, was a religious rather than a political body, and its pri-
mary responsibility was to regulate the concerns of the temple of Apollo at
Delphi. Although the council never became a federal union, it was a repre-
sentative body that approximated a representative form of government. Ac-
cording to some historians, anything like a federal union was utterly alien to
the Greek mind.
Anne. The first queen of Great Britain. Anne reigned as queen of England,
Scotland, and Ireland (1702–1707), and, following the Act of Union with
Scotland, was formally titled queen of Great Britain and Ireland (1707–1714).
She was the last monarch in the Stuart line. Queen Anne was succeeded
by George I, the first of the three Georges from the House of Hanover in
Germany.
Aratus of Sicyon (271–213 b.c.). Greek statesman and general who served as
the leader of the second Achaean League (q.v.). Through his diplomacy and
shrewd military alliances, he was able to strengthen the league and thwart its
enemies. Defeated by the Spartans, he formed an alliance with Antigonus III
ofMacedonia, who triumphed over the Spartans at the Battle of Sellasia and
brought the Achaean League under Macedonian domination.
Archon. The chief magistrate in a number of Greek city-states, including
Athens. After the title of king of Attica was abolished, a single Archon was
chosen, who exercised royal power for life. The term of office was afterward
reduced to ten years and in 683 b.c. was made annual, with nine Archons
sharing administrative, judicial, religious, and military powers. At the end of
their year in office, Archons became members of the Council of the Areopa-
gus. This court, originally called the Council ofElders, exercised supreme
authority over all matters in ancient times, but later lost most of its power, ex-
cept in cases involving homicide and religious matters. Solon was an Archon
when he reformed the Athenian constitution in 594 b.c.
Arragon (Aragon). A kingdom in northeast Spain founded in 1035 by Ramiro
I. Through descent Aragon automatically merged with the Hapsburg dynasty
upon Charles V’s ascension to emperor of the Holy Roman Empire in 1519.
Aspasia (440 b.c.–?). Greek courtesan and mistress ofPericles. Born at Mile-
tus in Ionia and renowned for her wisdom and beauty. Pericles left his wife
for Aspasia and would have married her but for Pericles’ own law that for-
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Glossary
462
bade Athenians from marrying foreigners. Her brilliance made her the cen-
ter ofliterary and philosophical life in Athens, and she is thought by some
to have served as an advisor and speech writer to Pericles in matters of state.
Accused ofimpiety shortly before the Peloponnesian War (q.v.), she was saved
from death by Pericles’ eloquence. Aspasia bore Pericles a son, who was legiti-
mized under his father’s name by a special decree after the death of his two le-
gitimate sons.
Athens. Ancient Greek city on the plain of the Attica region, north of the Gulf
of Corinth. Much of its early history is shrouded in myth and legend. Solon’s
reforms in the early part of the sixth century b.c. paved the way, later in that
century, for Cleisthenes to establish a democratic form of government.
Under this democracy Athens flourished for most of the fifth century b.c.
It emerged from the Persian War (500 – 449 b.c.) as the dominant naval
power and leader ofa maritime empire called the Delian League. Under
Pericles, Athens reached its Golden Age in architecture (Phidias), philosophy
(Socrates), and drama (Aeschylus, Sophocles, Euripides). Even in decline
Athens produced the philosophers Plato and Aristotle, the dramatist Aristo-
phanes, and the greatest orator of ancient times, Demosthenes. Athens’ de-
feat by Sparta in the protracted Peloponnesian War (431– 404 b.c., q.v.)
marked the downturn of her fortunes. The fourth century witnessed domi-
nation by the Macedonians, first by Philip II (q.v.) and later by Alexander the
Great (q.v.). In the first century b.c., the Romans made Athens one of their
provincial capitals.
Aulic Council. Created by Maximilian I in 1498, the Aulic Council was in-
tended primarily to be the chief administrative and executive arm of the Holy
Roman Empire. By the middle of the sixteenth century, however, its concerns
were largely confined to judicial matters. It later became the highest judicial
body in the empire. Its members, eventually twenty, were appointed by the
emperor. Their terms ended with his death.
Bashaws. Provincial governors in the Ottoman Empire who bore virtually
sole responsibility for the collection of taxes. These governors were essen-
tially feudal lords who usually inherited their positions.
Bavaria. A Germanic state whose history, first as a duchy and later as a
kingdom and republic, dates from the sixth century a.d. Bavaria is now the
largest state in the Federal Republic of Germany.
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Glossary
463
Bill of Attainder. A legislative act that pronounces a person guilty of a crime
and prescribes punishment without trial. In effect, a bill of attainder consti-
tutes “trial” and punishment by a simple legislative act without recourse to
judicial processes. Because the Framers were aware of the practice whereby
individuals were “attainted” of treason by a simple act of Parliament (with-
out trial) during the political and social upheavals of the 1600s, they provided
(Article 1, Sections 9 and 10) that neither the Federal nor State governments
may pass any bill of attainder.
Bill of Credit. A promissory note issued by a government on its own credit.
The States were forbidden to “emit bills of credit” under Article I, Section 9
of the Constitution.
Bill of Rights (English). When James II fled England in 1688, members of the
House of Lords and of the House of Commons who had held a seat during
the reign of Charles II (before the House was packed by James) and the
aldermen and councillors ofLondon met in an informal assembly to decide
what steps should be taken to create a lawful government. They requested
William to take over the provisional government and issue writs authorizing
the election of representatives to a convention. This Convention Parliament
assembled on January 22, 1689, and offered the vacant throne to William and
Mary, but under certain conditions deemed essential to protect liberty from
usurpations by future sovereigns. These conditions were spelled out in a Dec-
laration ofRights that embodied the fundamental principles of the English
Constitution. The Declaration ofRights was turned into a legislative act and
called the Bill ofRights when the convention became a Parliament. The en-
actment ofthis measure, on December 16, 1689, affirmed the principles of
a limited monarchy and the supremacy ofParliament. The Bill ofRights, re-
garded as a foundation stone of the English Constitution and civil liberties,
did not technically create any new rights and is considered to be a sum-
ming up or codification of the ancient law regulating the prerogatives of the
crown, the privileges ofParliament, and the liberty of subjects. Besides de-
termining the occupancy of the throne, the Bill of Rights guaranteed various
individual liberties, including freedom of speech in Parliament, trial by jury,
and an end to excessive bail and unreasonable fines. The Bill ofRights also
added a number ofclauses to the original Declaration, most notably one
providing that no Roman Catholic, or anyone married to a Roman Catholic,
should ever succeed to the throne ofEngland.
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Glossary
464
Blackstone, Sir William (1723–1780). An English jurist and celebrated legal
scholar who served on the Court of Common Pleas from 1770 to 1780. Black-
stone was also a professor of law at Oxford, a member of the House of
Commons (1761–1770), and solicitor general (1763). His highly acclaimed
Commentaries on the Laws of England, published in four volumes between
1765 and 1769, were widely read by American lawyers as soon as copies were
available, and well into the twentieth century. The first American edition,
edited by St. George Tucker, a distinguished law professor at William & Mary
College in Virginia, was published in 1803. Blackstone’s Commentaries are an
authoritative treatise on English common law, that body oflegal principles
and case law which serves as the foundation of Anglo-American jurispru-
dence. His treatment covers a wide range of subjects, including natural law,
municipal law, the law of property, and the rights of persons.
Bourbons, conflict with the House of Austria. In the seventeenth century
the two dominant royal houses on the European continent, the Bourbons
(French) and the Hapsburgs (Austrian), sought domination. In the Thirty
Years’ War (1618 –1648), the Bourbons endeavored to end the Hapsburg hege-
mony over the Germanic states that were part of the Holy Roman Empire.
This objective was achieved with the Treaty ofWestphalia (1648).
Brutus, Lucius Junius. The founder of the Roman Republic. Brutus headed
the conspiracy that deposed Tarquinius II, Rome’s seventh and last king. The
success ofthis conspiracy led to the establishment ofthe Roman Republic
in 509 b.c. When Tarquin marched on Rome to try to regain power, Brutus
and his fellow consul, Publius Valerius, successfully led the Roman troops
against him. Brutus died on the battlefield, however, and Valerius became the
sole ruler. Valerius was given the surname “Publicola” (the people’s respect-
ful friend), becoming Publius Valerius Publicola; his forename was adopted
as a pen name by the authors of The Federalist.
Caesar, Caius Julius (100 – 44 b.c.). Roman statesman and general. Caesar is
universally regarded as one of the greatest generals of all time for his military
exploits, particularly his conduct ofthe Gallic Wars (58 – 49 b.c.) and his
expedition into Britain. In 60 b.c., Caesar instituted the triumvirate, a
body ofthree consuls consisting of himself, the wealthy Crassus, and his
military rival, Pompey. The death of Crassus eventually set Caesar and Pom-
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Glossary
465
pey on a collision course. Caesar refused to obey the order of the Roman
Senate to lay down his arms, and he crossed the Rubicon in 49 b.c., an act
that ignited a civil war. With the people on his side, Caesar marched tri-
umphantly into Rome. He defeated Pompey at Pharsala, Greece (48 b.c.).
Caesar assumed dictatorial powers, in effect suspending the republican con-
stitution, though he was careful to cultivate popular support. Determined
to restore the republic and strengthen the Senate, about sixty conspirators,
including Marcus Junius Brutus (a descendant ofLucius Junius Brutus,
q.v.), Cassius Longinus Caius, and Publius Servilius Casca, arranged for the
assassination of Caesar in the Senate. He was stabbed to death on the Ides of
March (March 15), 44 b.c., the first blow being struck by Casca. His assassi-
nation precipitated a civil war that led to the establishment of the Roman
Empire.
Callicrates. See Achaean League.
Cambray (Cambrai), League of (1508–1510). An alliance between various
Italian states, Louis XII ofFrance, Emperor Maximilian I of Austria, Ferdi-
nand V of Aragon, and Pope Julius II against Venice. After the French de-
feated Venice in 1509, Julius II allied with Venice and formed the Holy League
against France.
Canon (pronounced “cannon”) law. The ecclesiastical law that governs Chris-
tian churches and their members.
Cantons. The states or political subdivisions of Switzerland.
Carthage. An ancient city ofNorth Africa on the Bay of Tunis which en-
gaged in three wars (the Punic Wars) with Rome during the second and third
centuries b.c. for domination of the Mediterranean. The third Punic War
(149 –146 b.c.) resulted in annihilation of the city by the Roman commander,
Scipio the Younger. In honor ofhis victory, Scipio became Scipio Africanus
(Minor).
Cato. The pseudonym of an unknown Anti-Federalist in New York who
wrote passionately and extensively against the ratification of the proposed
Constitution. Thought by some to be Governor George Clinton, he is not to
be confused with another Anti-Federalist writing under the name of Cato
in South Carolina.
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Glossary
466
Chancery courts. Courts in England with equity jurisdiction, the authority to
interpret and apply the laws, in light of unusual circumstances, upon prin-
ciples of fairness or equity rather than upon strict adherence to the letter of
the law. See Equity.
Charlemagne (Charles I) (742–814). King of the Franks who unified and
Christianized virtually all of central Europe. He expelled the Moors from
northeastern Spain, subjugated and Christianized the Saxons, and ousted
the barbarian kings ofItaly. He was crowned emperor of the West by Pope
Leo III, thereby setting the foundations for the Holy Roman Empire, whose
end was the unity and order ofthe earlier Roman Empire. Charlemagne
fostered commerce, established diplomatic relations with non-European
rulers, and promoted education among the clergy. His conquests and poli-
cies affected the course of European politics and development for centuries
to come.
Charles I (1600 –1649). Stuart king ofEngland, Scotland, and Ireland, 1635 –
1649. Religious differences, financial difficulties, civil disorder, and struggles
with Parliament marked his reign and resulted in civil war. Defeated in the
civil war by the Parliamentary army, Charles I was convicted of treason and
beheaded.
Charles II (1630 –1685). Son of Charles I and Stuart king of England, Scotland,
and Ireland, 1660 –1685. When his father surrendered to Cromwell in 1646,
Charles fled to France and joined his mother in Paris. He was crowned king
ofthe Scots in 1651 and led a Scottish army against Cromwell, only to be
defeated at Worcester. He again escaped to France, but was restored to the
throne ofEngland in 1660. He had many children but none legitimate, and
upon his death the crown passed to his brother, James II.
Charles V (1500 –1558). Emperor of the Holy Roman Empire, 1519 –1558, and
king of Spain (as Charles I), 1516 –1556; generally regarded as the greatest of
the Hapsburg monarchs. He was able to control and consolidate his Euro-
pean realm, and expanded his Spanish empire in the New World with the
conquests ofMexico and Peru. Towards the end ofhis life he delegated power
and authority to his brother, Ferdinand I, and his son, Philip II. He retired
in 1556 to the monastery ofYuste in western Spain, where he died two
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years later. His reign marked the beginning of an effort to halt the progress of
Protestantism in Europe.
Charles VII (1403 –1461). Crowned king ofFrance in 1429. Though disinher-
ited by his insane father (Charles VI), who designated Henry V of England
as his successor, Charles VII proceeded to expel the English from France,
thereby ending the Hundred Years’ War in 1453. His reign was marked by a
consolidation of royal authority in France.
Chesterfield, earl of (Philip Dormer Stanhope, the fourth earl of Chesterfield,
1694 –1773). English statesman, diplomat, and author of the famous work on
moral instruction Letters to His Son (1774). Known for his wit and grace in
speech and writing, Lord Chesterfield served at various times in Parliament
and as the British ambassador to the Hague, the viceroyalty ofIreland, and
secretary ofstate. In 1745 he secured Dutch support for England’s position
in the War ofAustrian Succession. That same year he was offered the vice-
royalty ofIreland, where his work on economic and agricultural reform, and
his encouragement of religious toleration, met with great success. His last
great service to England was to help bring about reform of the calendar in
a brilliant speech introducing the New Style calendar bill, which became law
in 1752.
Civil law. The civil (or Roman) law, derived from statutes, that is based upon
the system oflaws first administered in the Roman Empire. The jurispru-
dence of continental Europe, Latin America, and many other parts of the
world rests on the civil law. The ecclesiastical and administrative courts of
England also apply the civil law. These courts do not try cases before juries.
Cleomenes (Cleomenes III; d. 219 b.c.). Spartan king (235 –222 b.c.) who en-
deavored to conquer the Achaean League (q.v.). The Macedonians, re-
sponding to a request for help from the League, defeated Cleomenes III at the
Battle of Sellasia in 222 b.c.
Comitia. Assemblies of the people in ancient Rome. There were three kinds:
(1) Comitia Curiata, the most ancient, representing the old patrician fami-
lies. This assembly acted on matters of family, religion, and state; (2) Comitia
Centuriata, the assembly of the whole people divided by five fiscal classes
based on the property census and dominated by the patricians; (3) Comitia
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Tributa, the assembly of the people by tribes or regions, and the last to
be established (ca. 450 b.c.). Though patricians could serve on the Comitia
Tributa, its membership was predominantly plebeian. This body shared
political power with the Comitia Centuriata. Based on the principle of dual
representation— of the people and of the regions—the Comitia Centuriata
and Comitia Tributa may be viewed as a political institution that was roughly
analogous to the American bicameral structure.
Common law. Rules and principles, often unwritten in origin, arising from
English customs and practices that have been recognized and refined by
judges and adapted to specific controversies or circumstances. Anglo-
American common law is embodied in judicial rulings and opinions, and
much nowadays is also codified in statutes.
Consul. One of the two chief magistrates of the ancient Roman republic. They
exercised most of the powers associated with the monarchy. Consuls were
initially elected from the patrician families, but after 367 b.c. the plebeians
gained the right of electing one of the Consuls from among themselves. The
office was retained under the empire but was there limited primarily to judi-
cial and ceremonial duties. It was abolished in the sixth century a.d.
Cosmi (Cosmoi). One body of the legislative branch of ancient Crete in the
fourth and fifth centuries b.c. Its members served for life and were drawn
from select families. The members of the Council of Elders, the second body,
were drawn from those who had served in the Cosmoi.
Crete. The largest island of Greece in the eastern Mediterranean, approxi-
mately sixty miles southeast ofthe mainland. It was the home ofthe an-
cient Minoan civilization (3000 –1000 b.c.), one ofthe oldest known to
man, named after the mythical king Minos. The Minoan civilization reached
its peak about 1600 b.c. It came to an abrupt and mysterious end about
1400 b.c.
Cromwell, Oliver (1599–1658). Lord Protector ofEngland (1653 –1658). He
served in the House of Commons without distinction (1628 –1629), and re-
turned to represent Cambridge (1640 –1653). His leadership of the Parlia-
mentary army during the English civil wars, which led to the dethronement
and execution of Charles I, rendered him a virtual dictator. With extreme
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cruelty he crushed royalist uprisings in Scotland and Ireland. At his order,
Colonel Pride posted men at the doors ofParliament to block the entrance of
those unsympathetic to Cromwell or the army. “Pride’s Purge” resulted in
what is known as the Rump Parliament, with only about one-fifth the origi-
nal membership. In 1653 Cromwell dissolved the Rump Parliament. Unable
subsequently to get along with a Parliament that he had personally appointed
(the “Barebones Parliament”), he proclaimed a new constitution (“The In-
strument of Government”) in 1653 that declared him Lord Protector for life.
Although it was never operative, the Instrument of Government was impor-
tant as an early attempt to draw up a written constitution for England. In
order to secure domestic peace toward the end ofhis protectorate, he divided
England into districts, over each of which he appointed a major general with
full administrative discretion. His harsh rule paved the way for the return of
Charles II and the restoration of the Stuarts. Cromwell died before the mon-
archy was restored. But ten ofthose who had taken part in the trial and
execution of Charles I were executed. Cromwell’s body was later exhumed,
hung from gibbets, and beheaded.
Decemvirs. The ten members of a commission (decemvirate) organized in
451 b.c. at the insistence of the plebeians to codify the unwritten Roman
laws. Presided over by Appius Claudius, the commission was sent to Greece
in 450 to study Greek law and codify Roman law. It produced the famous Law
ofTwelve Tables, which became the basis of Roman jurisprudence. During
its brief existence, the commission temporarily displaced the regular ma-
chinery of government, becoming tyrannical. It was overthrown in 449 by
a popular insurrection after Appius Claudius was charged with scandalous
behavior.
Delphos (Delphi), temple of. The temple of Apollo in the city of Delphi,
built in the sixth century b.c., housed the oracle of Apollo. The oracle was
called upon to give advice on a variety of matters—moral, political, personal,
and public. While sometimes the advice was rendered in cryptic terms, the
words of the oracle were taken quite seriously by the Greeks. Delphi was a
great religious center and a member of the Amphictyonic Council (q.v.).
Demesne. Land, within the feudal system, that has not been parceled out to
serfs or freeholders, remaining in the sole possession of the lords. Serfs had a
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feudal obligation to the lord to cultivate a portion of the demesne in order to
make it productive.
Demosthenes (ca. 384 –322 b.c.). Demosthenes, an Athenian, was the great-
est Greek orator of the ancient world. He practiced speaking with pebbles in
his mouth to overcome a stammer and improve his diction. His most note-
worthy orations were his “Phillipics” directed against Philip ofMacedon.
Diet. The legislative arm of the Holy Roman Empire formally established by
Charles IV in 1356. Originally, it consisted of three divisions: electors (seven
lay and ecclesiastical princes), the college of princes, and representatives of
imperial cities. Though possessed oflegislative authority, the Diet met at ir-
regular intervals. After 1648, the Diet was transformed into an assembly of
sovereign princes.
Doge. The chief magistrate of the Genoan Republic. After 1339 the Genoan
Republic was ruled by Doges elected for life. From the late seventh century to
the early fourteenth, Venice was also ruled by an elective Doge.
Donawerth (Donauworth). A city in the circle of Swabia, now in the Swabian
region of western Bavaria. During the Thirty Years’ War, friction developed
between the Lutheran majority in Donauworth and the Catholic minority
headed by Abbe de St. Croix. The duke ofBavaria, Maximilian I (1573 –1651),
who founded the Catholic League in 1609, intervened on the side of the
Catholic minority.
Draco (Dracon) (?–?). Appointed extraordinary legislator by the Athenian
government with the authority to codify and rectify existing Athenian laws.
What emerged in 621 b.c. is called Draco’s Code. The term Draconian laws,
signifying laws mandating harsh or severe penalties, derives from this code.
Draco’s Code was supplanted for the most part by that of Solon in 594 b.c.
Duke of Bavaria. See Donawerth (Donauworth).
Encyclopedie. French encyclopedia (28 volumes) of the Enlightenment edited
by the philosopher Denis Diderot (1713 –1784) and, until 1758, the mathe-
matician Jean le Rond d’Alembert (1717–1783). It was published in 1751–1772
in France. Seven supplementary volumes were added by Charles Joseph
Panckoucke (1736 –1798) between 1776 and 1780, bringing the total number
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of volumes of the first edition of the Encyclopedie to thirty-five. Some of
France’s leading thinkers, including Montesquieu, Rousseau, and Voltaire,
contributed essays to the work. The Encyclopedie, ou Dictionaire Raisonné des
Sciences, des Arts et des Métiers, was an important literary and philosophical
enterprise that had a far-reaching impact on the political and intellectual life
ofEurope.
Ephori (Ephors). In ancient Greece, the ephor was a magistrate in one of the
Dorian cities, the most important being Sparta. Dating from the eighth cen-
tury b.c., the five ephors of Sparta were magistrates annually elected by lot
from among the people. As representative of the people, their function was
to ensure that the king remained loyal to his oath and obligations. The ephors
eventually constituted the highest civil court in Sparta.
Equity. In its broadest sense, the spirit of fairness and justice that should
govern human affairs. Equity is also a system of rules and procedures ad-
ministered by courts of equity, as distinguished from courts of law. The pur-
pose of equity courts is to render the administration of justice more thorough
by affording relief where the courts of law are unable to act. Equity jurispru-
dence originated in the civil law ofRome and evolved in England as a way of
circumventing the often rigid and inflexible rules of the common law—by
allowing the losing party in a dispute to appeal a ruling to the Lord Chan-
cellor (“keeper of the king’s conscience”). In the early seventeenth century,
the common law and equity courts were bitter rivals contending for juris-
dictional power. Sir Edward Coke, ChiefJustice of the King’s Court, is said
to have saved the common law from extinction by his sweeping decisions
expanding the jurisdiction of the common law courts. After the American
Revolution, law and equity were combined in most state judicial systems—
and later in the new Federal courts by virtue of Article III of the Constitution,
which provides that “the judicial power shall extend to all cases in law and
equity” arising under the Constitution, Federal laws, and treaties. See Chan-
cery courts; Common law.
Ex post facto law. A retroactive criminal law that operates to the detriment
of the accused by making an act criminal which, when committed, was legal.
Both the national and State governments are prohibited by the Constitution,
under Sections 9 and 10 of Article 1, from passing ex post facto laws.
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Feudalism. The political, economic, and social order ofEurope in the Middle
Ages. The feudal system was hierarchical, centered on the fief, or an estate in
land resting on reciprocal duties between lord and vassal. Below the vassal
was the serf, who tilled the land. In return for military or other services to the
lord, the vassal or feudal tenant received protection and the use and security
ofhis property from the lord. Lesser lords assumed the status of a vassal to-
ward higher lords, and higher lords served as vassals to the king. The crown
stood at the top of this pyramidal structure. Feudalism prevailed throughout
Europe primarily in the eleventh, twelfth, and thirteenth centuries, and was
introduced into England in its mature form by William I in 1085. Many of the
principles of real property law in England and America affecting land grants,
land tenure, and property rights may be traced back to the feudal system. It
tied men to the land and created a close-knit hierarchy of persons and an ag-
gregate of social and political institutions.
Fief. A feudal estate in land. See Feudalism.
Flanders. Originally an independent state along the North Sea (west of what
is now Germany and north ofFrance), but by the thirteenth century an ob-
ject ofdomination by stronger powers. In the thirteenth and fourteenth
centuries, French kings fought with the courts of Flanders for control—a
struggle the French finally won in 1382. In 1482, Flanders came under the
control of the Austrian Hapsburgs. This control passed to the Spanish Haps-
burgs in 1555 and back to the Austrian wing in 1714. The period ofHapsburg
domination (1662–1678) was marked by constant struggles between the
Dutch and the Hapsburgs for control of the Lower Countries (now the
Netherlands, Belgium, and Luxembourg). During this period, the French
annexed a portion ofFlanders. After the remainder ofFlanders passed under
the control ofFrance (1794) and the Netherlands (1815), it was recognized as
part of the new state of Belgium in 1830.
Fox, Charles James (1749–1806). English statesman and orator who became a
parliamentary leader, principally through opposition to the various govern-
ments in power during his lifetime. Though well educated, Fox gambled away
the family fortune and was financially destitute much of his life. He broke
from the Tories and the political influences of his youth, sided with Edmund
Burke and the Rockingham Whigs in support of the American colonies, and
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opposed Lord North’s administration during the American Revolution. Be-
coming an ardent champion ofliberal causes and radical reform, he broke
with Burke when he came out in favor of the French Revolution. In 1792,
most of his party left him, and in 1797 he withdrew from the House of
Commons. Returning to Parliament in 1800, he reversed his stand on the
French, advocated vigorous military action against Napoleon, and was ap-
pointed Secretary of State for Foreign Affairs by Lord Grenville in 1806—
only to die that same year as a result of obesity and poor health, just a few
months after the death of his great rival William Pitt.
Franks. Germanic tribes that were united in a.d. 481 under the leadership of
Clovis I. By 815 their king, Charlemagne (q.v.), had conquered virtually all
ofcentral and western Europe. By the treaty of Merson (870), the kingdom
of the West Franks became France; that of the East Franks, Germany.
Gaul. In ancient times, most of Gaul encompassed what is now France. It
was bounded by the Alps, the Rhine River, and the Pyrenees. Julius Caesar
(q.v.) conquered Gaul in the Gallic Wars (58 –51 b.c.).
Genoa. A city in northwest Italy on the Mediterranean that grew to be a very
prosperous commercial republic in the fourteenth century, with colonies of
its own. From this time on its powers ebbed, save for a brief period in the six-
teenth century. Internal disorders rendered Genoa helpless to prevent inter-
vention and control by such foreign powers as France, Spain, and Austria
during the seventeenth and eighteenth centuries.
George II (George Augustus) (1683–1760). King of Great Britain and Ireland
(1727–1760). Born in the German principality ofHanover, he was the second
English king of the House of Hanover.
Glorious Revolution (1688 –1689). The bloodless English revolution that in-
volved the forced abdication of James II and the enthronement of William
and Mary as joint sovereigns. The revolution also brought to a close the his-
toric struggle for supremacy between crown and parliament by ending divine
right rule and laying the foundation for the principle of parliamentary su-
premacy. The English Bill ofRights (1689) was also a product of this consti-
tutional change. See William III; Bill ofRights (English).
Grand Signior. The sultan ofTurkey; the head of the Ottoman Empire.
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Grotius, Hugo (1583–1645). Dutch jurist and political theorist who wrote the
first systematic and comprehensive work on international law based on the
philosophy of natural law, Concerning the Law of War and Peace (De juri belli
ac pacis) [1625]. See also Rutherford’s (Rutherforth’s) Institutes.
Habeas corpus (Latin, “you have the body”). An English common law (q.v.)
right that dates back to the fourteenth century and was codified during the
reign ofCharles II (q.v.) in 1679. A writ of habeas corpus requires a judicial
hearing to determine whether an individual is being imprisoned or detained
lawfully. It thus limits the executive power of arresting authorities. The U.S.
Constitution guarantees the writ ofhabeas corpus (Article 1, Section 9), save
“in cases ofRebellion or Invasion.” Deliverance from illegal confinement is
regarded as one of the great guarantees of personal liberty.
Hannibal (247–182 b.c.). Carthaginian general in the Second Punic War. Led
some 100,000 troops, with elephants and full equipment, across the Alps in
an invasion ofItaly. He conducted a brilliant campaign against the Romans,
but the failure of Carthage to reinforce his army prevented him from taking
Rome. Carthaginian defeats elsewhere prompted his return to Carthage to
protect it against the Roman army headed by Scipio the Elder (subsequently
titled Scipio Africanus in honor of his achievement). Scipio defeated Hanni-
bal at the battle ofZama (202 b.c.). After peace was restored, Hannibal ruled
Carthage for a time and then joined forces with Rome’s enemies. He ended
his life by taking poison in order to avoid imprisonment by the Romans.
Hanover, Treaty of (1725). A treaty between England, Prussia, and France,
establishing the League ofHanover, to counter the Austrian-Spanish alli-
ance formed by the Treaty of Vienna.
Henry VIII (1491–1547). King ofEngland, 1509 –1547. Repudiating an alli-
ance between England and France fashioned by his chief advisor, Cardinal
Wolsey, Henry joined forces with Charles V (q.v.), Holy Roman Emperor and
king of Spain, in his war against France. Cardinal Wolsey lost all influence in
Henry’s court when Pope Clement VII refused to grant Henry a divorce from
Katherine of Aragon, his first of six wives. Upon his second marriage, to Anne
Boleyn, he was excommunicated from the Catholic Church. Subsequently, he
assumed all papal powers in England and established the Church ofEngland.
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His reign saw a movement toward Protestantism in England and centraliza-
tion of power in the crown.
Homer. First Greek poet, who lived sometime before 700 b.c. According
to legend he was blind. His narrative poems the Iliad and the Odyssey rank
among the great masterpieces ofWestern literature. Alexander the Great
(q.v.) kept a copy of the Iliad under his pillow at night, along with his dagger.
Hume, David (1711–1776). Scottish philosopher, historian, and essayist. His
major works include a multivolume History of England, A Treatise of Human
Nature, An Enquiry Concerning the Principles of Morals, and Essays Moral and
Political. Many ideas and principles set forth in his philosophical, histori-
cal, and political writings were well received by some of the most influential
delegates to the Philadelphia Convention. Among these were his belief that
experience, not abstract reasoning, provides the soundest basis for political
institutions; that a republican form of government is possible over an exten-
sive territory; that man often pursues his immediate interests or passions to
the detriment ofhis long-term well-being; that tradition plays a critical role
in the orderly operations of a complex, organic society; and that it is prefer-
able to restrain human nature through clearly marked institutions rather
than rely upon the development or identification of virtuous men.
Imperial Chamber. The judicial arm of the Holy Roman Empire established
by Maximilian I, with the sanction of the Diet of Worms, in 1495. The origi-
nal Chamber consisted of sixteen members, a number that increased over the
decades. The emperor appointed the chief justice and shared in the appoint-
ment of other justices with the constituent elements of the empire. The
Chamber handled civil disputes between different provinces of the empire,
suits against rulers in the empire, and suits between subjects of different
rulers, as well as violations of the emperor’s decrees. The Chamber never op-
erated according to design, many of its functions being handled by the Aulic
Council (q.v.).
India bill. Sponsored by Charles Fox and Lord North, this measure would
have completely reorganized the British East India Company, which had
been guilty of incompetence and mismanagement in handling the affairs of
India. The bill provided for a seven-member governing board responsible to
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Parliament. In late 1783 it passed the House of Commons 208 to 102, but was
rejected by the House ofLords 95–76 after King George III made it clear that
he would regard as enemies those who voted for the bill. In 1857 the British
government took control ofIndia from the East India Company in the after-
math of a mutiny against British westernization practices.
James II (1633 –1701). King of Great Britain and Ireland, 1685 –1688, and sec-
ond son of Charles I (q.v.). James was unpopular before his succession be-
cause ofhis marriage in 1673 to a Catholic, Mary ofModena, which also
linked him with the imperial policies ofLouis XIV ofFrance. As king, his ap-
pointments of Catholics to key posts and his Declaration of Indulgence for
dissenters caused considerable domestic friction. The birth of his son, James
Edward Stuart, which ensured a Catholic succession, led to the Glorious, or
Bloodless, Revolution of 1688 (q.v.) and the ascension of the Protestants Wil-
liam and Mary. James fled to France and returned hoping to raise Ireland in
revolt and use it as a base to invade England but was thwarted at the Battle of
the Boyne (1690). He returned to France, where he died in exile.
Janizaries (Janissaries). A militia unit constituting for many years the princi-
pal standing army of the Ottoman Empire. Janissaries were an elite corps of
fierce warriors who prided themselves on abstinence from luxury, obedience
to their officers, and loyalty to the state. They did not let their beards grow,
did not marry, and devoted all their energies to practicing the arts of war. The
corps, first organized in the fourteenth century, consisted of Christian
youths, preferably from the Balkans, who were forcibly taken from their par-
ents and given instruction in both military combat and the Muslim religion.
In the seventeenth century, however, the Janissaries became increasingly em-
broiled in politics and grew unruly. By the end of the next century they were
a public menace. In 1826, Janissaries led a revolt against the government in
Constantinople. They were slaughtered to the last man and the unit went out
of existence, never to be revived.
Jenkinson, Charles (1727–1808). First earl ofLiverpool and baron Hawkesbury
of Hawkesbury. Member of the House of Commons (1761–1796), where he
eventually served as leader of the “king’s friends.” He also held a variety of
important administrative posts in the British government, including that of
secretary at war (1778 –1782) during the American Revolution.
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John (1167–1216). King ofEngland, 1199 –1216. Succeeded his older brother,
Richard the Lion Hearted. Expensive and unsuccessful military campaigns
forced him to tax at higher rates than ever before. This further fueled the dis-
content of the barons, who united and forced John to sign the Magna Charta
(q.v.) at Runnymede, a meadow on the Thames River, in June 1215.
Julius II (1443 –1513). Played a major rule in restoring the papal states to the
church. As Pope (1503–1513), he was a patron ofRaphael, Michelangelo, and
Bramante. He laid the cornerstone for St. Peter’s in Rome.
Junius. Pseudonym used by the author of a series of letters that appeared
between January 21, 1769, and January 21, 1772, in the Public Advertiser, a
London newspaper. The letters were biting attacks on the ministries of the
duke of Grafton, Lord North, and the political dealings of King George III.
The collected letters were published as Letters of Junius by Henry Sampson
Woodfall in 1772. The identity of Junius is still unknown. In 1872, an anony-
mous writer published an intriguing work in Washington, D.C., entitled Ju-
nius Unmasked, claiming that the Letters of Junius were written by Thomas
Paine before he emigrated to America in 1774.
Khan of Tartary. Autocratic ruler of Siberia, original home of the Tartars.
Lacedaemon (Laconia). Both the city and the territory of Sparta on the Pelo-
ponnesus, south of the Gulf of Corinth. Lacedaemonians were the people of
the city and territory of Sparta. Lacedaemonia also embraced the regions of
Laconia and Messenia.
Leuctra, Battle of (371 b.c.). Leuctra was a village of ancient Greece where the
Thebans decisively defeated the Spartans. This victory ended the brief period
of Spartan domination of Greece after the Peloponnesian War (q.v.).
Locrians. An ancient people of the city of Locri, a Greek colony on the coast
of what is now Calabria, located on the toe of Italy. The severe law code pre-
pared by the famous lawgiver Zaleucus, about 650 b.c., appears to have been
the first written legal code in Europe and was widely copied in Greece itself.
Locri was allied against Rome in the third century b.c. but was later incor-
porated into the Roman Empire.
Long Parliament. The Parliament that followed upon the “Short Parlia-
ment” which was dissolved by Charles I (q.v.) in 1640 after sitting for only
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three weeks. The “Long Parliament” convened later in 1640, continuing
through the English civil wars to 1653. Between 1648 and 1653 it was known
as the “Rump Parliament” because Cromwell purged it ofPresbyterians and
the remaining royalists. After disbanding the “Rump Parliament” in 1653,
Cromwell ruled for a few months with a “Barebones Parliament” consist-
ing of appointed individuals. The surviving members of the “Long Parlia-
ment” met again in 1659–1660 to settle upon terms for the restoration of the
monarchy.
Louis XIV (1638 –1715). Known as the Sun King, Louis reigned in France from
1643 to 1715, with his mother, Anne of Austria, serving as regent until 1661.
The first portion ofhis reign was marked by centralization of authority
through administrative reform, the key element of which involved the devel-
opment of a loyal civil service. He also sought supremacy in Europe, but with
only limited success, because of alliances that formed against him.
Lycian Confederacy. A confederacy of states located in Lycia, an ancient re-
gion of southwestern Asia Minor, bordering on the Mediterranean, that ex-
isted as early as the sixth century b.c. and lasted until the Romans suppressed
its federal structure in the first century b.c. Estimates of the number of cities
in this confederacy range from twenty-three to seventy.
Lycurgus (?–?). The traditional lawgiver of Sparta who reformed the Spartan
constitution. Certain sources describe him as living as early as the ninth cen-
tury b.c., but others say as late as the seventh century b.c. Still others con-
tend that he is only a legendary figure—possibly a demigod—who, having
extracted a promise from the Spartans to observe his laws until his return, left
the city and subsequently starved himself to death in a foreign land.
Lysander (d. 395 b.c.). Spartan naval commander who captured the Athen-
ian fleet at Aegospotami in 405 b.c. His blockade ofPiraeus, the Athenian
port city, in 404 b.c. led to the surrender of Athens, which marked the end
of the Peloponnesian War (q.v.).
Mably, L’Abbé Gabriel Bono de (1709–1785). French historian and friend of
the philosophes, whose writings were known to both Hamilton and Madison.
His chief work, dealing with the law of nations, was entitled Des Princeps des
Negociations. Mably also wrote on Greece and Rome and in 1783 published
four letters to John Adams that were critical of the early State constitutions
and Articles of Confederation. These were translated into English and later
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published under the title Remarks Concerning the Government and Laws of
the United States (1785).
Macedon (Kingdom of Macedonia). An ancient kingdom in the northeast-
ern corner of the Greek Peninsula. Under Philip II (q.v.) and Alexander
(q.v.), it became a dominant force in the Greece of the fourth century b.c.
Today it is divided among the nations of Greece, Bulgaria, and the Republic
ofMacedonia.
Magna Charta (Great Charter). The foundation of Anglo-American liberties,
establishing the principle that all Englishmen, not just the lords, are entitled
to liberty, and that no man, including the king himself, is above the law. The
“law of the land” clause in Magna Charta, which later became known as “due
process oflaw,” is found in the Fifth and Fourteenth Amendments to the
American Constitution. Many other guarantees can be traced to this historic
document — signed by King John (q.v.) in 1215 and reaffirmed over the cen-
turies by his successors as a limitation on royal authority. The idea of a con-
stitutional or limited monarchy dates from the Magna Charta.
Maintenon, Madame de (François d’Aubigne, Marquise de). The second wife
ofLouis XIV (q.v.) by secret marriage sometime between 1683 and 1697. A de-
vout Catholic, she is thought to have persuaded Louis to persecute the French
Protestants (Huguenots), thereby bringing about his renunciation of the
Edict ofNantes (1598).
Man of the Seven Mountains. A Roman citizen was sometimes called “a man
of the seven mountains” (de septem montibus virum), but the term could also
apply to the Roman emperor.
Marlborough, duchess of (Sarah Churchill, née Jennings, 1660 –1744). A close
friend of and advisor to Queen Anne until friction developed between them
in 1710. She participated in court intrigue and used her position to advance
the career ofher husband, John Churchill, first duke ofMarlborough (q.v.).
Marlborough, duke of (John Churchill, 1650 –1722). English statesman and
general who supported William III (q.v.) against James II (q.v.). As com-
mander of English forces, he enjoyed remarkable success in the War of Span-
ish Succession (1701–1714), inflicting enormous losses on the French and pre-
venting the hegemony ofFrance on the European continent. He ignored the
French pleas for peace, much to the displeasure of the English Tories.
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Marque and Reprisal, letter of. A letter or document issued by a sovereign na-
tion that authorizes private citizens to seize the citizens and goods of another
country. Such letters were often issued to ship captains. Letters of Marque
Reprisal were permitted under the law of nations whenever the subjects of
one state were oppressed and injured by those ofanother and justice was
denied. The power to grant “letters ofMarque and Reprisal” is delegated to
Congress in Article I, Section 8 of the Constitution and denied to the States
under Article I, Section 10.
Martin, Luther (1748–1826). A distinguished lawyer who served as a delegate
from Maryland to the Constitutional Convention. As a strong advocate of
States’ Rights, he left the Convention in disgust on September 4 and returned
to Maryland to lead the fight against ratification. In a lengthy speech to the
Maryland legislature that was subsequently printed and widely distributed,
Martin presented one of the most persuasive arguments against the Consti-
tution of any Anti-Federalist. He later became Attorney General of Mary-
land. Martin frequently argued the cause of States’ Rights before the Supreme
Court in the early republic, serving as counsel in many landmark cases, in-
cluding McCulloch v. Maryland (1823), which established a broad interpreta-
tion of the implied powers of Congress.
Maximilian (Maximilian I) (1459–1519). German king, 1486 –1519, and self-
proclaimed emperor of the Holy Roman Empire, 1493 –1519. His reign wit-
nessed the growth ofthe merchant classes, the flourishing ofGerman art,
and constitutional reform of the Holy Roman Empire.
Megarensians (Megarians). The inhabitants ofMegara, an ancient Greek city
situated west of Athens on the important route leading from central Greece
to the Peloponnesus. Relations between Athens and Megara were often hos-
tile, owing in part to the fact that Athenians frequently exploited the land
around Megara for their own purposes. In retaliation for Megara’s expulsion
of an Athenian garrison, Pericles (q.v.) issued a decree in 432 b.c. that ex-
cluded Megara from Athenian markets and ruined the Megarian economy.
Megara appealed to Sparta for support, and Pericles’ action is thought to be
one ofthe causes ofthe Peloponnesian War (q.v.). The city of Megara later
fell into the hands of the Macedonians, and ultimately the Romans. Megara
was the birthplace of the philosopher Euclid.
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Messene (Messenia). A region of ancient Greece in the southern portion of
the Peloponnesus which, with Laconia, comprises Lacedaemon (q.v.). It was
intermittently subjected to Spartan control from the seventh century b.c.
until the Battle ofLeuctra (q.v.) in the fourth century b.c.
Milot (Millot), Abbé Claude François Xavier (1726 –1785). A French historian
and Jesuit whose works include Elements of the History of France and His-
tory of England. Milot sought to popularize history and his collected works
comprise fifteen volumes.
Minos. See Crete.
Montesquieu, Charles de Secondat, baron de la Brede et de (1689–1775). The
“oracle of separation of powers” and highly influential French jurist and po-
litical philosopher whose most celebrated work, The Spirit of the Laws, first
appeared in an English translation in 1750. This widely read treatise empha-
sized the influence of economic, social, political, geographic, and even cli-
matic influences on the behavior, laws, customs, and habits of different
peoples. Montesquieu admired the British system because it produced or-
dered liberty, but he misinterpreted the English Constitution in developing
his theory ofseparation ofpowers. One ofthe great classics in the history
of political philosophy, Montesquieu’s Spirit of the Laws greatly influenced
the thinking ofthe Framers and the development ofthe American separa-
tion of powers doctrine. His other writings include the Persian Letters (1721)
and Considerations on the Causes of the Greatness of the Romans and Their De-
cline (1734).
Montgomery County. The largest and westernmost county in New York State
at the time of the ratification contest.
Neckar (Necker), Jacques (1732 –1804). French financial expert who served
as director of the treasury (1776) and director general of finances (1777) for
Louis XVI. His major work, A Treatise on the Administration of France, was
published in England in 1785.
Norman Conquest. The conquest ofEngland in 1066 by William, duke of
Normandy, who defeated Harold at the Battle of Hastings. William became
King William I, the first of the Norman monarchs to rule England.
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Numa, Pompilius (715–673 b.c.). The second king ofRome, elected after the
disappearance ofRomulus in the seventh century b.c. A pious and peace-
loving monarch, Numa is credited with establishing the basic ceremonial and
religious institutions ofRome.
Ottoman Empire. The empire of the Ottoman Turks founded by Osman
(1288 –1320) in the fourteenth century. In 1453, the Ottomans captured Con-
stantinople and destroyed the Byzantine Empire. Operated somewhat along
feudal lines, the Ottoman Empire reached its zenith in the sixteenth century
under Selim I when it embraced most of Greece and Hungary, as well as large
portions of Persia and Arabia. After the Turkish failure to capture Vienna in
1683, the empire experienced a rapid decline in size and power. Defeated by
British and Allied forces in World War I, the empire collapsed and Turkey
came under the influence of a democratic movement begun at Angora in 1919
by Kemal Ataturk (1881–1938).
Patricians and plebeians. Two classes in the early Roman republic, the dis-
tinction between them based originally on clan affiliation. Later the terms
took on a different meaning with patricians regarded as aristocratic or noble
and plebeians as the mass of ordinary citizens.
Peloponnesian War (431– 404 b.c.). The protracted struggle for supremacy
between Athens and Sparta. At the outset, Athens was more than able to hold
its own, but with the Spartan victory at Amphipolis in 424 and the defec-
tion ofthe Athenian general Alcibiades to Sparta, Athenian fortunes began
to wane. Though Athens did subsequently win some battles, the emergence
ofLysander and the defeat of the Athenian navy at Aegospotami led to a
Spartan victory. The Peloponnesian War brought an end to the golden age of
Athens.
Peloponnesus. The southernmost portion of continental Greece, practically
an island, being linked to the mainland by the narrow Isthmus ofCorinth.
Its principal regions in ancient times included Achaia (q.v.), Corinth, Archa-
dia, Argolis, Elis, and Lacedaemonia (which embraced Laconia and Messe-
nia, q.v.). Its main cities were Sparta, Corinth, Argos, and Megalopolis.
Pericles (ca. 495 – 429 b.c.). Athenian statesman, general, and great orator
who led a democratic Athens to the peak ofits power. His attempt to in-
crease the power of Athens on the Greek mainland was unsuccessful and the
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last years ofhis leadership witnessed increasing internal dissension, a great
plague, and the start of the Peloponnesian War (q.v.).
Persia. An ancient empire whose center is known today as Iran. It reached
its peak in the middle of the sixth century b.c. In the Persian Wars (500 –
449 b.c.), the Greek city-states successfully resisted Persian conquest. Key
victories in these wars were those of the vastly outnumbered Spartans over
Xerxes I at Thermopylae and the Athenian navy at Salamis, both in 480 b.c.
After this, the Persian threat gradually disappeared.
Petition of Right (1628). A legislative document signed by Charles I (q.v.) that
guaranteed freedom from arbitrary arrest and taxation, the unwarranted ex-
tension of martial law, and the billeting of troops in private homes by royal
order. The Petition is regarded as one of the cornerstones of the English Con-
stitution, and some of its provisions were incorporated into the Bill of Rights
of the American Constitution.
Pfeffel, Christian Friedrich (1726 –1807). Legal advisor in the Department of
Foreign Affairs to the king of Prussia. In 1777 his work New Abridged Chro-
nology of the History and the Public Law of Germany was published in Paris.
Phidias (ca. 500 – 432 b.c.). The greatest of the Greek sculptors whose works
include the statue of Zeus at Olympia, one of the seven wonders of the an-
cient world, and the gold and ivory statue of Athena in the Parthenon. He was
commissioned by Pericles (q.v.) to do work on the Acropolis. The enormous
expense of these works brought them both into disrepute. He was accused of
misappropriating gold dedicated for use on statuary to his own use, but was
acquitted when the gold was removed, weighed, and found to be complete.
He was then accused of sacrilege. Some sources report that he was then con-
demned, imprisoned, and poisoned.
Philip of Macedon (Philip II) (382–336 b.c.). King ofMacedon, 359 –336 b.c.
Through military prowess and shrewd diplomacy, Philip led Macedonia to
a position ofsupremacy in ancient Greece. With his victory over Phocis
(346 b.c.) he clearly established Macedon as the dominant force in central
Greece. Complete domination followed with his victory over the combined
forces of Athens and Thebes in the Battle of Chaeronea in 338 b.c. Having
established control over Greece, he was about to embark on an invasion of
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Persia when he was murdered by one ofhis attendants. It remained for his
son, Alexander the Great (q.v.), to undertake this expedition.
Philip of Macedon (Philip V) (238 –179 b.c.). King ofMacedon, 229 –179 b.c.
Philip was eventually defeated by the Romans in 197, after attempts to repel
their advances into Greece. Upon his defeat, he provided the Romans with
assistance in the campaigns to subdue the Greek city-states. In the last decade
ofhis reign, he sought to consolidate what was left ofhis kingdom. His final
military ventures were directed against the Balkans.
Philopoemen (ca. 252 –182 b.c.). Greek general who commanded the Achaean
League (q.v.) at various times between 222 and 182 b.c. He brought Sparta
into the League in 192 and under his leadership, with Roman backing, he was
able to expand and dominate the league.
Phocians. Citizens ofPhocis, an ancient state in central Greece north of the
GulfofCorinth, which was involved in two sacred wars over control of
the Temple at Delphi. The second war (356 –346 b.c.) ended with Philip of
Macedon conquering Phocis and breaking up its federated cities into a num-
ber of small villages to prevent any further encroachments on the sacred
grounds at Delphi.
Plato (ca. 421–341 b.c.). Greek philosopher and student of Socrates whose
works have had an enormous influence on Western thought. His philosophy
is expressed in numerous dialogues, the most celebrated being The Republic,
where he pictures the ideal state in which Guardians, or philosopher-kings,
rule justly without the need for written laws.
Plebeian. See Patricians and plebeians.
Plutarch (ca. a.d. 46 –120). Greek author whose most famous work is Paral-
lel Lives— commonly known as Plutarch’s Lives— containing forty-six paired
biographies ofRomans and Greeks, as well as four single biographies. These
biographies have great literary merit, though not all are entirely accurate.
Polybius (ca. 203–120 b.c.). Greek historian and political theorist whose
surviving works deal with Greek and Roman institutions and practices. In
166 b.c., Polybius was taken to Rome as a hostage with one thousand promi-
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nent Achaeans and kept there for seventeen years. He became a tutor and
friend of important Romans, including Scipio the Younger. He accompanied
Scipio on his military campaigns and was with him when Carthage (q.v.) fell
in 145 b.c. When Greece became a Roman province, he used his good reputa-
tion with the Romans to gain concessions for his defeated countrymen. Later,
Polybius wrote his History, which covered the period from 220 to 145 b.c. It
filled forty books, only five of which have survived intact. An early proponent
ofa rudimentary form ofthe separation ofpowers, he is best noted for his
belief that a “mixed” constitution—a combination of royal, aristocratic, and
democratic elements—is superior to other forms of government.
Pompadour, Madame de (Jeanne Antoinette Poisson, Marquise de) (1721–1764).
Mistress ofLouis XV ofFrance whose beauty, ambition, cunning, and intel-
ligence rendered her the virtual sovereign ofFrance. She was responsible for
the French-Austrian alliance that involved France in the Seven Years’ War
(1756 –1763).
Potosi. A city in the Andes of southern Bolivia resting at an elevation of nearly
14,000 feet. Near Potosi are silver deposits that the Spanish began mining in
1545. They rank among the richest in the world.
Praetor (of the Achaean League). The primary magistrate of the Achaean
League (q.v.). Not to be confused with the praetors of Rome, the title given
to the two consuls elected by the Comitia Centuriata. In his references to the
“praetors of the Achaeans” in essays no. 18 and 70 of The Federalist, Publius
is apparently referring to the strategia, the chief magistracy of the Achaean
League, which commanded a large measure of civil authority and had virtu-
ally the sole power of introducing measures before the assembly. In this re-
spect, the role of the strategia was similar to that of the Roman praetor (a term
probably more familiar to the readers of The Federalist).
Prince of Orange. See William III.
Privy Council. An outgrowth of the Curia Regis of the Normans, the Privy
Council consisted of the king’s closest officers and advisors. In the American
colonial period, the Privy Council exercised a form of judicial review, dis-
allowing acts of the colonial assemblies and reviewing final appeals from the
colonial courts. Once a powerful administrative body in Great Britain, the
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Privy Council has been eclipsed by the modern cabinet system that evolved
from it. Today the Privy Council is a purely formal body with little power.
Prussia. Originally a territory in what is now Germany, east of the Holy Ro-
man Empire, stretching along the Baltic Sea for about 220 miles. The eastern
part, conquered by the Teutonic Knights, formed the duchy of Prussia. It
was acquired by the elector ofBrandenburg in 1618. Elector Frederick III of
Brandenburg was crowned Frederick I ofPrussia in 1701. The western part,
severed from the eastern half and assigned to Poland in 1466, was finally an-
nexed to Prussia in 1772. With its highly trained and well-disciplined stand-
ing army, Prussia emerged as a major European power in the eighteenth
century under Frederick I’s successors—Frederick William I (1688 –1740)
and Frederick II (“the Great”) (1712–1786).
Punic Wars. The three wars between Carthage (q.v.) and Rome (q.v.) fought
over commercial control of the Mediterranean region. The first war (264 –
241 b.c.) resulted in Roman expansion through the acquisition of Sicily, Cor-
sica, and Sardinia; the second (218 –201 b.c.) in the defeat of Carthage and
the great Hannibal; and the third (149–146 b.c.) in Carthage’s annihilation.
Rome. The capital city and center ofboth the Roman republic and the
Roman Empire in the ancient world. The legendary date of its founding is
April 21, 753 b.c., when Romulus, the first king ofRome, built his settlement
on the Palatine Hill. Rome grew in size and power, becoming the ruler of
the Italian peninsula by 265 b.c. and the dominant nation in the western
Mediterranean by the end of the Second Punic War (201 b.c.). From the
eighth century to 509 b.c. Rome was a monarchy. The Roman republic
that succeeded it, wracked by turbulence and constant warfare, lasted until
46 b.c., when Caius Julius Caesar (q.v.) was crowned dictator. After the as-
sassination of Caesar and the defeat of Antony at Actium (31 b.c.), Au-
gustus formally established the Roman Empire, which reached its zenith in
the second century a.d. The empire was split into East and West during the
rule ofDiocletian (a.d. 283–305) and, in a.d. 330, Constantinople became
the official capital of the empire, replacing Rome. Rome fell to the Vandals in
a.d. 455, and the empire in the West came to an official end in 476 when the
last emperor, Romulus Augustulus, was deposed.
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Romulus. According to legend, Romulus and his twin brother, Remus—
nursed by a she wolfand raised by a shepherd—founded Rome about 753 b.c.
After a bitter quarrel, Romulus slew Remus and eventually ruled as Rome’s
first king. The new city ofRome expanded and prospered under the wise rule
ofRomulus. At the end ofhis life he was said to have been carried off in
his chariot to the heavens by Mars and thereafter was worshiped as a god by
the Romans.
Rutherford’s (Rutherforth’s) Institutes. A treatise entitled Institutes of Natural
Law (1754) written by Thomas Rutherforth. Delivered at Cambridge Univer-
sity as a series oflectures on the writings ofHugo Grotius, Rutherforth’s
Institutes were widely read by American lawyers and reprinted in Baltimore
as late as 1832. Of particular interest to Americans were his principles of legal
interpretation. See Grotius, Hugo.
St. Croix, Abbé de. See Donawerth (Donauwerth).
Samnians (Samians). The Ionian inhabitants of the Greek island of Samos,
located near Turkey (Asia Minor) in the Aegean Sea. Samos was the first
Greek city to fall sway to Darius I, king of Persia. Pericles besieged Samos in
439 b.c., however, and founded a democratic government there. In the last
years of the Peloponnesian War (q.v.), Samos became an ally of Athens, but
it was eventually taken by the Spartan leader Lysander, who in 404 b.c. es-
tablished an oligarchy. It was retaken and colonized by Athens in 366 b.c. Af-
ter the death of Alexander the Great (q.v.), Samos came under the domina-
tion of the Romans in 133 b.c. Marc Antony captured and sacked it in 39 b.c.,
and its freedom was finally restored by Augustus. Among the famous sons
ofSamos were the philosopher Pythagoras and the sculptors Rhoecus and
Theodorus, who invented the art of casting statues in bronze.
Saxony, electors of. The upper house of the Diet (q.v.) of the Holy Roman
Empire originally (1356) consisted of seven, and later eight, prince-electors
charged with the responsibility of electing the emperor of the Holy Roman
Empire. The duke of Saxony was one of these seven.
Scipio the Elder [Publius Cornelius Scipio Africanus (Major)] (a.d. 236 –183).
The Roman general who defeated Hannibal, the leader of the Carthaginian
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army, at the Battle ofZarma (202 b.c.), in the Second Punic War. Honoring
him for his victory, Rome (q.v.) gave him the surname Africanus. Scipio later
joined his brother to defeat Antiochus III of Syria in 190 b.c. Accused with
his brother of accepting a bribe from Antiochus in 187, Scipio proclaimed his
innocence and retired a bitter man to his country estate, where he remained
until his death. His grandson (by adoption), Scipio the Younger [Publius
Cornelius Scipio Aemilianus Africanus Numantinus (Minor)] (185 –129 b.c.)
defeated Carthage (q.v.) in the Third Punic War (146 b.c.). A brave soldier
and a cultivated man ofhonor and virtue, Scipio the Younger is said to have
represented the best in Roman character in the waning days of the republic.
Cicero, who made him the main speaker in his political treatise De Republica,
regarded Scipio’s era as the golden age of aristocratic government, before
Rome became an empire.
Servius Tullius (578 –534 b.c.). The sixth king ofRome, who came to be hon-
ored by the Roman people and Senate. He is noted for his reform of the
Roman constitution by reclassifying the elements of the population, thereby
laying the foundation for the gradual political enfranchisement of the ple-
beians. Servius was the last legitimate king ofRome. He was murdered by his
son-in-law, Tarquinius (Tarquinius Superbus Lucius), who seized the throne
by force. Tarquinius became the seventh and last king.
Shays’s Rebellion. A rebellion of farmers led by Daniel Shays (1747–1825) in
central and western Massachusetts, 1786 –1787. The insurrection arose from
the economic hardships facing the farmers, who found it increasingly diffi-
cult to discharge their debts. Although their immediate objective was to close
down the local courts to prevent judgments against them, their long-term
goal was to pressure the State into pursuing inflationary policies. The rebel-
lion was easily quelled by State militia, but it was viewed with great alarm
elsewhere and hastened the movement toward a stronger national govern-
ment. Shays, a veteran of the Revolutionary War, was later pardoned.
Socrates (469 –399 b.c.). Greek philosopher and Athenian citizen who is re-
garded as the founder of political philosophy and as one of the wisest men
who ever lived. He was known as a great teacher whose technique of critical
questioning, the Socratic method, bears his name. Powerful Athenians fearful
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489
that his teachings would undermine the Athenian state brought him to trial
before an Athenian jury on charges of religious heresy and corrupting the
minds ofthe young. Convicted and sentenced to death, he did not seize
the opportunity to flee the city. Instead, emphasizing his debt to Athens and
believing that his escape would be injurious to the state, he drank poisonous
hemlock. Socrates wrote nothing. We know about him and his teachings
largely through the writings ofPlato and Xenophon.
Solon (ca. 638 –559 b.c.). Athenian statesman, lawgiver, and poet, celebrated
in ancient history as one of the seven sages of Greece. In 594 b.c. he became
Archon (a chief magistrate), q.v., and was given broad powers to correct the
imbalance between the rich and the poor that was causing great social unrest.
One of his major economic reforms was the annulment of a law that had
placed debtors in slavery. He also softened the harsh Draconian Code, gave
the peasants new political rights, expanded the number of elective offices,
and reconstituted the courts to give all classes of citizens a share in the ad-
ministration of justice. Because of these and other political reforms, Solon is
often called the father of Athenian democracy. His name has passed into the
English language as a synonym for a legislator or wise man. See also Draco
(Dracon).
Spanish Main. During the period of the Spanish Conquest, the northern
mainland of South America (the portion from the Isthmus of Panama to the
mouth of the Orinoco River in Venezuela) was known as the Spanish Main.
The name was also applied to the Caribbean route that Spanish ships used in
transporting the riches of the New World to Spain.
Sparta. City of ancient Greece and principal city in Lacedaemon (Laconia)
(q.v.). By the seventh century b.c. Sparta was the center ofliterary activity,
but shortly thereafter the cultivation of the military arts came to dominate.
The society was divided into warriors, artisans, and slaves (helots). Only the
warriors (Spartiates) were full citizens and freed from the necessity of earn-
ing their livelihood. They were thus free to devote their lives to the service
ofthe state. The city was governed by a constitution presumably decreed
by the semilegendary Lycurgus (q.v.) that provided for two kings and five
ephors. Sparta played a major role in repelling the Persians and rose to domi-
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nance for a short time after defeating the Athenians in the Peloponnesian
War (404 b.c., q.v.). It was defeated by the Thebans at the Battle of Leuctra
(371 b.c., q.v.) and subsequently conquered by Philip ofMacedon. It disap-
peared almost entirely soon after the Roman incursions.
Suabia (Swabia), circle of. The Swabian circle or league, fully established in
1559, was one of the zones into which Germany was divided for purposes of
administration. The Swabian circle consisted of more than twenty cities.
Tamony. The pseudonym of an anonymous Anti-Federalist from Virginia,
who wrote a letter on the dangers of the presidency, contending that the great
prerogatives ofthe office would inspire “reverential awe.” The letter first
appeared in the Virginia Independent Chronicle in January 1788 and was re-
printed the following month in Philadelphia and New York newspapers.
Temple, Sir William (1628–1699). English statesman, diplomat, and writer.
Temple was one of the great diplomats of his time. His most brilliant achieve-
ment was the negotiation of the Triple Alliance between England, the United
Netherlands, and Sweden in 1668. As ambassador to the Hague, he arranged
the 1677 marriage between William III, prince of Orange, and Princess Mary,
the daughter ofKing James II (q.v.), who assumed the throne after the Glo-
rious, or Bloodless, Revolution (1688 –1689, q.v.) in England. In 1679 he be-
came a member of the Privy Council (q.v.) which gave him considerable in-
fluence in domestic affairs, but he lost interest in the Council after seeing that
it was being used by the king to rubber stamp policies he opposed. He was re-
moved from the Council in 1681 and went into retirement, though only fifty-
three years of age. He devoted the remainder of his life to writing essays and
his memoirs, while maintaining an extensive correspondence. Edited by his
secretary, Jonathan Swift, The Works of William Temple (4 volumes) went
through many editions, the first appearing posthumously in 1720.
Thebans. Residents ofThebes, an ancient city of Boeotia, Greece; a region
northwest of Attica between the Gulf of Corinth and the north Gulf of Eubia.
Originally embittered against Athens, Thebes favored Persia in the Persian War
and Sparta in the Peloponnesian War (q.v.). Later it joined the confederacy
against Sparta, its guarantee ofindependence from Sparta coming with its vic-
tory at the Battle ofLeuctra (371 b.c., q.v.). Shortly thereafter, Thebes joined
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Athens against Philip ofMacedon (q.v.), which led to their defeat at Chae-
ronea (338 b.c.), the second of the Sacred Wars. Thebes was reduced to rub-
ble by Alexander the Great (q.v.) in 336 when it revolted against his authority.
Theseus. Athenian hero and father of Attica in Greek legend. He was the son
of Aegeus, king of Athens. Upon his father’s death, Theseus became king and
established an orderly government that prepared the way for Greek democ-
racy. He later surrendered the throne and gave Athens a constitution. In his
absence, the people became corrupt and did not welcome his return. In sad-
ness, he went to the island of Scyrus, where he owned estates. Lycomedes, the
king, welcomed Theseus and pretended friendship, but pushed him off a cliff
to his death. According to tradition, an image ofTheseus in full armor rose
up after his death to lead the Athenians against the Persians in the Battle of
Marathon (490 b.c.). The Athenians worshiped Theseus as the founder of
their city and as a hero, but they never declared him a god.
Thuanus (Thou, Jacques Auguste de) (1553–1617). French statesman and his-
torian who sought to bring objectivity to the study ofhistory. His principal
work was A History of His Own Time, published posthumously in its com-
pleted form in 1620. Thuanus also played an important role in drafting the
exalted Edict ofNantes, a declaration of religious toleration.
Tribune. An officer or magistrate in ancient Rome chosen by the people or
plebeians to protect them from the oppression of the patricians or nobles and
defend their liberties from abridgment by the Senate and consuls. The office
was created in 494 b.c. by the Senate to pacify the common people, who had
seceded from Rome in protest against patrician abuses. At first there were
two Tribunes, then their number was increased to five, and ultimately to ten.
Tribunes could bring an offending patrician before the Comitia Centuriata,
take a seat in the Senate, halt proceedings instituted before a magistrate, pro-
pose public measures, issue edicts, and even suspend decrees of the Senate.
Their powers were extensive in the period of the republic but were substan-
tially reduced by the Roman emperors.
Tullius Hostilius (Tullus) (672 –640 b.c.). The third king ofRome. Tullus,
who succeeded the pious and peace-loving Numa, was noted for his warlike
manner and military prowess. Not the least ofhis victories was the defeat of
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492
the Sabines. One ofhis lasting achievements was building a Senate chamber,
named (for him) the Curia Hostilia, which was used until its destruction by
fire in 52 b.c.
Union, Act of (1707). Legislation that established the union between England
and Scotland under one parliament. Under its terms Scotland was given rep-
resentation in the Parliament of Great Britain. This union was opposed by the
Jacobites.
United Provinces (Netherlands). The Netherlands, consisting of seventeen
provinces, were dominions of Spain in the early sixteenth century. When
Charles V abdicated in 1555, his son, Philip II, succeeded him to the throne.
The Netherlands thereafter erupted in religious conflict and political re-
volt, weakening Spanish rule. Led by Holland, the seven northern provinces
broke away in 1579 to form the United Provinces under the Union (treaty) of
Utrecht. The United Provinces, also known as the United Netherlands or
Dutch Republic, declared their independence in 1581. A powerful confeder-
acy in the seventeenth century, the United Provinces entered into a period of
decline after 1715. They lasted until 1795, when they fell victim to the French
Revolution and were displaced by the Batavian republic, a client state of
France.
Utrecht, Union of (1579). See United Provinces (Netherlands).
Vassal. One who held land (fief) in the feudal order on condition that he
swear allegiance and fidelity to his lord and perform certain duties, including
military service. See Feudalism.
Venice. A city, capital of the Venetia region, in northeast Italy, built on islets
in the Gulf of Venice. It was settled in the fifth century a.d. by refugees from
the Lombard invasion of northern Italy. From the late seventh century to the
beginning of the fourteenth, Venice was a republic ruled by an elected Doge.
The government assumed an oligarchic character in 1310 when the effective
sovereign authority was transferred to the Council of Ten. From the tenth
through the fifteenth centuries, with the conquests of Venetia, Cyprus, and
Crete, Venice grew to become a leading maritime power. Its commercial
decline, which began in the late fifteenth century, was virtually complete by
the early 1700s, after the loss of all its overseas possessions. After French and
Austrian rule, Venice became part ofItaly in 1866.
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Victor Amadeus II (1666 –1732). Duke of Savoy, then king of Sicily, and later
king of Sardinia. Victor Amadeus is famous for his diplomatic skill in forging
alliances that made the House of Savoy a European power in the late seven-
teenth and early eighteenth centuries. Noteworthy is the Treaty ofTurin
(1696), which gave Savoy many favorable terms, including more territory. In
1730 he abdicated his crown in favor of his son, Charles Emmanuel III, and
retired to Chambery.
Westphalia, Treaty of (Peace of Westphalia) (1648). The settlement that ended
the Thirty Years’ War. Under the terms of two treaties which constituted the
settlement, the Hapsburg control over central Europe was considerably
weakened, with the recognition that the Holy Roman Empire constituted
little more than a confederacy of independent sovereign states. The French
gained Alsace and some border territory, while the independence of the
United Provinces was officially recognized. The terms of the peace opened
the door for French ascendancy on the continent.
William III (1650 –1702). King ofEngland, Scotland, and Ireland, 1689–1702.
As prince of Orange of Holland, William married the eldest daughter of
James II (q.v.) in 1677. With Mary he accepted the English throne after the Glo-
rious Revolution in 1688. Upon assuming power he was obliged to sign the Bill
ofRights (q.v.), which greatly limited royal power and granted numerous
individual rights. He also signed the Act ofSettlement (1701), a statute that
established the line of succession for the crown for all time and thereby ac-
knowledged the supremacy ofParliament under the English Constitution.
Wolsey (Thomas Cardinal Wolsey). See Henry VIII.
Wyoming (Wyoming Valley). An area of colonial northeastern Pennsylvania
to which both Pennsylvania and Connecticut laid claim. The competing
claims led to considerable friction among the settlers, producing the Penna-
mite wars (1754) and a massacre of settlers (1778). The conflict was resolved
in 1799 largely in favor of Pennsylvania.
Yates, Abraham (1724 –1796). A prominent New York politician and Anti-
Federalist pamphleteer from Albany. Yates headed the committee that
drafted New York State’s first constitution and served in the Continental
Congress, 1787–1788. As a follower of Governor George Clinton, he strongly
opposed a more powerful central government. He is not to be confused with
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494
Robert Yates, the Anti-Federalist who served as a delegate from New York in
the Federal Convention.
Xerxes I (ca. 519– 465 b.c.). The Great King ofPersia (486 – 465 b.c.) who,
with a large combined land and naval force, tried to conquer Greece. His
army captured and burned Athens, but his naval forces were decisively de-
feated at the Battle of Salamis (480 b.c.) by the Athenian navy. The subse-
quent defeat of his army at Plataea (479 b.c.) effectively ended the Persian
threat. Persia was so weakened that it never fully recovered. Xerxes was later
assassinated in a palace conspiracy.
Zaleucus. See Locrians.
Zeland (Zealand). One of the northern provinces of the Netherlands, Zeland
was a charter member of the Union of Utrecht (1579).
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495
Source: Charles C. Tansill, ed., Documents Illustrative of the Formation of the Union of
the American States (Washington, D.C.: U.S. Government Printing Office, 1927), 22–25.
Appendixes
appendix 1
The Declaration of Independence
In Congress, July 4, 1776
the unanimous declaration of
the thirteen united states of america
When in the Course ofhuman events, it becomes necessary for one people
to dissolve the political bands which have connected them with another,
and to assume among the powers ofthe earth, the separate and equal sta-
tion to which the Laws ofNature and ofNature’s God entitle them, a decent
respect to the opinions of mankind requires that they should declare the
causes which impel them to the separation.—We hold these truths to be self-
evident, that all men are created equal, that they are endowed by their Cre-
ator with certain unalienable Rights, that among these are Life, Liberty and
the pursuit ofhappiness.—That to secure these rights, Governments are
instituted among Men, deriving their just powers from the consent of the
governed,—That whenever any Form of Government becomes destructive
ofthese ends, it is the Right ofthe People to alter or to abolish it, and to
institute new Government, laying its foundation on such principles and or-
ganizing its powers in such form, as to them shall seem most likely to effect
their Safety and Happiness. Prudence, indeed, will dictate that Governments
long established should not be changed for light and transient causes; and
accordingly all experience hath shown, that mankind are more disposed to
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496
suffer, while evils are sufferable, than to right themselves by abolishing the
forms to which they are accustomed. But when a long train of abuses and
usurpations, pursuing invariably the same Object evinces a design to reduce
them under absolute Despotism, it is their right, it is their duty, to throw off
such Government, and to provide new Guards for their future security.—
Such has been the patient sufferance of these Colonies; and such is now
the necessity which constrains them to alter their former Systems of Govern-
ment. The history of the present King of Great Britain is a history of repeated
injuries and usurpations, all having in direct object the establishment of an
absolute Tyranny over these States. To prove this, let Facts be submitted to
a candid world.—He has refused his Assent to Laws, the most wholesome
and necessary for the public good.—He has forbidden his Governors to pass
Laws ofimmediate and pressing importance, unless suspended in their op-
eration till his Assent should be obtained; and when so suspended, he has
utterly neglected to attend to them.—He has refused to pass other Laws for
the accommodation oflarge districts of people, unless those people would
relinquish the right ofRepresentation in the Legislature, a right inestimable
to them and formidable to tyrants only.—He has called together legislative
bodies at places unusual, uncomfortable, and distant from the depository of
their public Records, for the sole purpose of fatiguing them into compliance
with his measures.—He has dissolved Representative Houses repeatedly, for
opposing with manly firmness his invasions on the rights ofthe people.—
He has refused for a long time, after such dissolutions, to cause others to
be elected; whereby the Legislative powers, incapable of Annihilation, have
returned to the People at large for their exercise; the State remaining in the
mean time exposed to all the dangers of invasion from without, and convul-
sions within.—He has endeavoured to prevent the population of these States;
for that purpose obstructing the Laws for Naturalization of Foreigners; re-
fusing to pass others to encourage their migration hither, and raising the
conditions of new Appropriations of Lands.—He has obstructed the Admin-
istration ofJustice, by refusing his Assent to Laws for establishing Judiciary
powers.—He has made Judges dependent on his Will alone, for the tenure of
their offices, and the amount and payment of their salaries.—He has erected
a multitude of New Offices, and sent hither swarms of Officers to harass
our people, and eat out their substance.—He has kept among us, in times
of peace, Standing Armies, without the Consent of our legislatures.—He has
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Appendixes
497
affected to render the Military independent of and superior to the Civil
power.—He has combined with others to subject us to a jurisdiction foreign
to our constitution, and unacknowledged by our laws; giving his Assent to
their Acts of pretended Legislation:—For quartering large bodies of armed
troops among us:—For protecting them, by a mock Trial, from punishment
for any Murders which they should commit on the Inhabitants of these
States:—For cutting offour Trade with all parts ofthe world:—For impos-
ing Taxes on us without our Consent:—For depriving us in many cases, of
the benefits ofTrial by Jury:—For transporting us beyond Seas to be tried
for pretended offences:—For abolishing the free System of English Laws in a
neighbouring Province, establishing therein an Arbitrary government, and
enlarging its Boundaries so as to render it at once an example and fit instru-
ment for introducing the same absolute rule into these Colonies:—For taking
away our Charters, abolishing our most valuable Laws, and altering funda-
mentally the Forms of our Governments:—For suspending our own Legisla-
tures, and declaring themselves invested with power to legislate for us in all
cases whatsoever.—He has abdicated Government here, by declaring us out
ofhis Protection and waging War against us.—He has plundered our seas,
ravaged our Coasts, burnt our towns, and destroyed the lives ofour people.—
He is at this time transporting large Armies of foreign Mercenaries to com-
pleat the works of death, desolation and tyranny, already begun with circum-
stances of Cruelty & perfidy scarcely paralleled in the most barbarous ages,
and totally unworthy the Head of a civilized nation.—He has constrained our
fellow Citizens taken Captive on the high Seas to bear Arms against their
Country, to become the executioners of their friends and Brethren, or to fall
themselves by their Hands.—He has excited domestic insurrections amongst
us, and has endeavoured to bring on the inhabitants of our frontiers, the mer-
ciless Indian Savages, whose known rule of warfare, is an undistinguished de-
struction of all ages, sexes and conditions. In every stage of these Oppressions
We have Petitioned for Redress in the most humble terms: Our repeated
Petitions have been answered only by repeated injury. A Prince, whose char-
acter is thus marked by every act which may define a Tyrant, is unfit to be the
ruler of a free people. Nor have We been wanting in attentions to our Brittish
brethren. We have warned them from time to time of attempts by their legis-
lature to extend an unwarrantable jurisdiction over us. We have reminded
them of the circumstances of our emigration and settlement here. We have
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498
appealed to their native justice and magnanimity, and we have conjured them
by the ties of our common kindred to disavow these usurpations, which,
would inevitably interrupt our connections and correspondence. They too
have been deaf to the voice of justice and of consanguinity. We must, there-
fore, acquiesce in the necessity, which denounces our Separation, and hold
them, as we hold the rest of mankind, Enemies in War, in Peace Friends.—
We, Therefore, the Representatives of the United States of
America, in General Congress, Assembled, appealing to the Supreme Judge
ofthe world for the rectitude ofour intentions, do, in the Name, and by
Authority of the good People of these Colonies, solemnly publish and de-
clare, That these United Colonies are, and ofRight ought to be Free and
Independent States; that they are Absolved from all Allegiance to the
British Crown, and that all political connection between them and the State
of Great Britain, is and ought to be totally dissolved; and that as Free and In-
dependent States, they have full Power to levy War, conclude Peace, contract
Alliances, establish Commerce, and to do all other Acts and Things which
Independent States may of right do.—And for the support of this Declara-
tion, with a firm reliance on the protection ofDivine Providence, we mutu-
ally pledge to each other our Lives, our Fortunes and our sacred Honor.
John Hancock
Josiah Bartlett
Richd. Stockton
George Wythe
Wm. Whipple
Jno. Witherspoon
Richard Henry Lee
Matthew Thornton
Fras. Hopkinson
Th. Jefferson
John Hart
Benja. Harrison
Saml. Adams
Abra. Clark
Ths. Nelson, Jr.
John Adams
Francis Lightfoot Lee
Robt. Morris
Carter Braxton
Robt. Treat Paine
Benjamin Rush
Elbridge Gerry
Benja. Franklin
Wm. Hooper
John Morton
Joseph Hewes
Step. Hopkins
Geo. Clymer
John Penn
William Ellery
Jas. Smith
Geo. Taylor
Edward Rutledge
Roger Sherman
James Wilson
Thos. Heyward, Junr.
Sam’el Huntington
Geo. Ross
Thomas Lynch, Junr.
Wm. Williams
Arthur Middleton
Oliver Wolcott
Caesar Rodney
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499
Geo. Read
Button Gwinnett
Wm. Floyd
Tho. M’Kean
Lyman Hall
Phil. Livingston
Geo. Walton
Frans. Lewis
Samuel Chase
Lewis Morris
Wm. Paca
Thos. Stone
Charles Carroll of Carrollton
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Source: Charles C. Tansill, ed., Documents Illustrative of the Formation of the Union of
the American States (Washington, D.C.: U.S. Government Printing Office, 1927), 27–37.
appendix 2
Articles of Confederation
March 1, 1781
to all to whom these presents shall come,
we the under signed delegates of the states
affixed to our names, send greeting.
Whereas the Delegates of the United States of America, in Congress assem-
bled, did, on the 15th day ofNovember, in the Year of Our Lord One thou-
sand Seven Hundred and Seventy seven, and in the Second Year ofthe
Independence ofAmerica, agree to certain articles ofConfederation and
perpetual Union between the States ofNewhampshire, Massachusetts-bay,
Rhodeisland and Providence Plantations, Connecticut, New York, New Jer-
sey, Pennsylvania, Delaware, Maryland, Virginia, North-Carolina, South-
Carolina, and Georgia in the words following, viz. “Articles of Confederation
and perpetual Union between the states ofNewhampshire, Massachusetts-
bay, Rhodeisland and Providence Plantations, Connecticut, New-York, New-
Jersey, Pennsylvania, Delaware, Maryland, Virginia, North-Carolina, South-
Carolina and Georgia.”
Article I. The Stile of this confederacy shall be “The United States of
America.”
Article II. Each state retains its sovereignty, freedom, and independence,
and every Power, Jurisdiction and right, which is not by this confederation
expressly delegated to the United States, in Congress assembled.
Article III. The said states hereby severally enter into a firm league of
friendship with each other, for their common defence, the security of their
Liberties, and their mutual and general welfare, binding themselves to assist
each other, against all force offered to, or attacks made upon them, or any
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501
of them, on account of religion, sovereignty, trade, or any other pretence
whatever.
Article IV. The better to secure and perpetuate mutual friendship and
intercourse among the people ofthe different states in this union, the free
inhabitants ofeach ofthese states, paupers, vagabonds and fugitives from
justice excepted, shall be entitled to all privileges and immunities of free citi-
zens in the several states; and the people of each state shall have free ingress
and regress to and from any other state, and shall enjoy therein all the privi-
leges oftrade and commerce, subject to the same duties, impositions and
restrictions as the inhabitants thereof respectively, provided that such re-
striction shall not extend so far as to prevent the removal of property im-
ported into any state, to any other state, of which the Owner is an inhabitant;
provided also that no imposition, duties or restriction shall be laid by any
state, on the property of the united states, or either of them.
If any Person guilty of, or charged with treason, felony, or other high mis-
demeanor in any state, shall flee from Justice, and be found in any of the
united states, he shall, upon demand of the Governor or executive power, of
the state from which he fled, be delivered up and removed to the state having
jurisdiction ofhis offence.
Full faith and credit shall be given in each of these states to the records,
acts and judicial proceedings of the courts and magistrates of every other
state.
Article V. For the more convenient management of the general interests of
the united states, delegates shall be annually appointed in such manner as the
legislature of each state shall direct, to meet in Congress on the first Monday
in November, in every year, with a power reserved to each state, to recal its
delegates, or any of them, at any time within the year, and to send others in
their stead, for the remainder of the Year.
No state shall be represented in Congress by less than two, nor by more
than seven Members; and no person shall be capable ofbeing a delegate for
more than three years in any term ofsix years; nor shall any person, being
a delegate, be capable ofholding any office under the united states, for
which he, or another for his benefit receives any salary, fees or emolument of
any kind.
Each state shall maintain its own delegates in a meeting of the states, and
while they act as members of the committee of the states.
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In determining questons in the united states in Congress assembled, each
state shall have one vote.
Freedom of speech and debate in Congress shall not be impeached or
questioned in any Court, or place out of Congress, and the members of con-
gress shall be protected in their persons from arrests and imprisonments,
during the time oftheir going to and from, and attendance on congress,
except for treason, felony, or breach of the peace.
Article VI. No state, without the Consent of the united states in congress
assembled, shall send any embassy to, or receive any embassy from, or enter
into any conference, agreement, alliance or treaty with any King prince or
state; nor shall any person holding any office of profit or trust under the
united states, or any ofthem, accept ofany present, emolument, office or
title of any kind whatever from any king, prince or foreign state; nor shall
the united states in congress assembled, or any ofthem, grant any title of
nobility.
No two or more states shall enter into any treaty, confederation or alli-
ance whatever between them, without the consent of the united states in con-
gress assembled, specifying accurately the purposes for which the same is to
be entered into, and how long it shall continue.
No state shall lay any imposts or duties, which may interfere with any stip-
ulations in treaties, entered into by the united states in congress assembled,
with any king, prince or state, in pursuance of any treaties already proposed
by congress, to the courts ofFrance and Spain.
No vessels ofwar shall be kept up in time ofpeace by any state, except
such number only, as shall be deemed necessary by the united states in con-
gress assembled, for the defence of such state, or its trade; nor shall any
body of forces be kept up by any state, in time of peace, except such number
only, as in the judgment of the united states, in congress assembled, shall be
deemed requisite to garrison the forts necessary for the defence of such state;
but every state shall always keep up a well regulated and disciplined militia,
sufficiently armed and accoutred, and shall provide and constantly have
ready for use, in public stores, a due number of field pieces and tents, and a
proper quantity of arms, ammunition and camp equipage.
No state shall engage in any war without the consent of the united states
in congress assembled, unless such state be actually invaded by enemies, or
shall have received certain advice ofa resolution being formed by some
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nation ofIndians to invade such state, and the danger is so imminent as not
to admit of a delay till the united states in congress assembled can be con-
sulted: nor shall any state grant commissions to any ships or vessels of war,
nor letters of marque or reprisal, except it be after a declaration of war by the
united states in congress assembled, and then only against the kingdom or
state and the subjects thereof, against which war has been so declared, and
under such regulations as shall be established by the united states in congress
assembled, unless such state be infested by pirates, in which case vessels of
war may be fitted out for that occasion, and kept so long as the danger shall
continue, or until the united states in congress assembled, shall determine
otherwise.
Article VII. When land-forces are raised by any state for the common de-
fence, all officers of or under the rank of colonel, shall be appointed by the
legislature of each state respectively, by whom such forces shall be raised, or
in such manner as such state shall direct, and all vacancies shall be filled up
by the State which first made the appointment.
Article VIII. All charges of war, and all other expences that shall be in-
curred for the common defence or general welfare, and allowed by the united
states in congress assembled, shall be defrayed out of a common treasury,
which shall be supplied by the several states in proportion to the value of all
land within each state, granted to or surveyed for any Person, as such land
and the buildings and improvements thereon shall be estimated according to
such mode as the united states in congress assembled, shall from time to time
direct and appoint.
The taxes for paying that proportion shall be laid and levied by the au-
thority and direction of the legislatures of the several states within the time
agreed upon by the united states in congress assembled.
Article IX. The united states in congress assembled, shall have the sole
and exclusive right and power ofdetermining on peace and war, except in
the cases mentioned in the sixth article— of sending and receiving ambassa-
dors—entering into treaties and alliances, provided that no treaty of com-
merce shall be made whereby the legislative power of the respective states
shall be restrained from imposing such imposts and duties on foreigners as
their own people are subjected to, or from prohibiting the exportation or
importation of any species of goods or commodities, whatsover— of estab-
lishing rules for deciding in all cases, what captures on land or water shall
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be legal, and in what manner prizes taken by land or naval forces in the ser-
vice of the united states shall be divided or appropriated— of granting letters
of marque and reprisal in times of peace—appointing courts for the trial of
piracies and felonies committed on the high seas and establishing courts for
receiving and determining finally appeals in all cases of captures, provided
that no member of congress shall be appointed a judge of any of the said
courts.
The united states in congress assembled shall also be the last resort on ap-
peal in all disputes and differences now subsisting or that hereafter may arise
between two or more states concerning boundary, jurisdiction or any other
cause whatever; which authority shall always be exercised in the manner fol-
lowing. Whenever the legislative or executive authority or lawful agent of any
state in controversy with another shall present a petition to congress stating
the matter in question and praying for a hearing, notice thereof shall be
given by order of congress to the legislative or executive authority of the other
state in controversy, and a day assigned for the appearance of the parties by
their lawful agents, who shall then be directed to appoint by joint consent,
commissioners or judges to constitute a court for hearing and determining
the matter in question: but if they cannot agree, congress shall name three
persons out of each of the united states, and from the list of such persons each
party shall alternately strike out one, the petitioners beginning, until the
number shall be reduced to thirteen; and from that number not less than
seven, nor more than nine names as congress shall direct, shall in the pres-
ence of congress be drawn out by lot, and the persons whose names shall be
so drawn or any five of them, shall be commissioners or judges, to hear and
finally determine the controversy, so always as a major part of the judges who
shall hear the cause shall agree in the determination: and if either party shall
neglect to attend at the day appointed, without showing reasons, which con-
gress shall judge sufficient, or being present shall refuse to strike, the congress
shall proceed to nominate three persons out of each state, and the secretary
of congress shall strike in behalf of such party absent or refusing; and the
judgment and sentence of the court to be appointed, in the manner before
prescribed, shall be final and conclusive; and if any of the parties shall refuse
to submit to the authority of such court, or to appear or defend their claim
or cause, the court shall nevertheless proceed to pronounce sentence, or
judgment, which shall in like manner be final and decisive, the judgment
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or sentence and other proceedings being in either case transmitted to con-
gress, and lodged among the acts of congress for the security of the parties
concerned: provided that every commissioner, before he sits in judgment,
shall take an oath to be administered by one of the judges of the supreme or
superior court of the state, where the cause shall be tried, “well and truly to
hear and determine the matter in question, according to the best ofhis judg-
ment, without favour, affection or hope of reward:” provided also, that no
state shall be deprived of territory for the benefit of the united states.
All controversies concerning the private right of soil claimed under differ-
ent grants of two or more states, whose jurisdictions as they may respect such
lands, and the states which passed such grants are adjusted, the said grants or
either of them being at the same time claimed to have originated antecedent
to such settlement of jurisdiction, shall on the petition of either party to the
congress of the united states, be finally determined as near as may be in the
same manner as is before prescribed for deciding disputes respecting territo-
rial jurisdiction between different states.
The united states in congress assembled shall also have the sole and exclu-
sive right and power of regulating the alloy and value of coin struck by their
own authority, or by that of the respective states—fixing the standard of
weights and measures throughout the united states—regulating the trade
and managing all affairs with the Indians, not members of any of the states,
provided that the legislative right of any state within its own limits be not in-
fringed or violated—establishing or regulating post-offices from one state to
another, throughout all the united states, and exacting such postage on the
papers passing thro’ the same as may be requisite to defray the expences of
the said office—appointing all officers of the land forces, in the service of the
united states, excepting regimental officers—appointing all the officers of
the naval forces, and commissioning all officers whatever in the service of the
united states—making rules for the government and regulation of the said
land and naval forces, and directing their operations.
The united states in congress assembled shall have authority to appoint a
committee, to sit in the recess of congress, to be denominated “A Committee
of the States,” and to consist of one delegate from each state; and to appoint
such other committees and civil officers as may be necessary for managing
the general affairs of the united states under their direction—to appoint one
oftheir number to preside, provided that no person be allowed to serve in
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506
the office of president more than one year in any term of three years; to as-
certain the necessary sums of money to be raised for the service of the united
states, and to appropriate and apply the same for defraying the public ex-
pences—to borrow money, or emit bills on the credit of the united states,
transmitting every half year to the respective states an account of the sums of
money so borrowed or emitted,—to build and equip a navy—to agree upon
the number of land forces, and to make requisitions from each state for its
quota, in proportion to the number of white inhabitants in such state; which
requisition shall be binding, and thereupon the legislature of each state shall
appoint the regimental officers, raise the men and cloath, arm and equip
them in a soldier like manner, at the expence of the united states; and the
officers and men so cloathed, armed and equipped shall march to the place
appointed, and within the time agreed on by the united states in congress as-
sembled: But if the united states in congress assembled shall, on considera-
tion of circumstances judge proper that any state should not raise men, or
should raise a smaller number than its quota, and that any other state should
raise a greater number of men than the quota thereof, such extra number
shall be raised, officered, cloathed, armed and equipped in the same manner
as the quota of such state, unless the legislature of such state shall judge that
such extra number cannot be safely spared out of the same, in which case they
shall raise officer, cloath, arm and equip as many of such extra number as
they judge can be safely spared. And the officers and men so cloathed, armed
and equipped, shall march to the place appointed, and within the time agreed
on by the united states in congress assembled.
The united states in congress assembled shall never engage in a war, nor
grant letters of marque and reprisal in time of peace, nor enter into any
treaties or alliances, nor coin money, nor regulate the value thereof, nor as-
certain the sums and expences necessary for the defence and welfare of the
united states, or any of them, nor emit bills, nor borrow money on the credit
of the united states, nor appropriate money, nor agree upon the number of
vessels of war, to be built or purchased, or the number of land or sea forces
to be raised, nor appoint a commander in chief of the army or navy, unless
nine states assent to the same: nor shall a question on any other point, except
for adjourning from day to day be determined, unless by the votes of a major-
ity of the united states in congress assembled.
The congress of the united states shall have power to adjourn to any time
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within the year, and to any place within the united states, so that no period
of adjournment be for a longer duration than the space of six Months, and
shall publish the Journal of their proceedings monthly, except such parts
thereof relating to treaties, alliances or military operations, as in their judg-
ment require secrecy; and the yeas and nays of the delegates of each state on
any question shall be entered on the Journal, when it is desired by any dele-
gate; and the delegates of a state, or any of them, at his or their request shall
be furnished with a transcript of the said Journal, except such parts as are
above excepted, to lay before the legislatures of the several states.
Article X. The committee of the states, or any nine of them, shall be au-
thorized to execute, in the recess of congress, such of the powers of congress
as the united states in congress assembled, by the consent of nine states, shall
from time to time think expedient to vest them with; provided that no power
be delegated to the said committee, for the exercise of which, by the articles
of confederation, the voice of nine states in the congress of the united states
assembled is requisite.
Article XI. Canada acceding to this confederation, and joining in the mea-
sures of the united states, shall be admitted into, and entitled to all the ad-
vantages of this union: but no other colony shall be admitted into the same,
unless such admission be agreed to by nine states.
Article XII. All bills of credit emitted, monies borrowed and debts con-
tracted by, or under the authority of congress, before the assembling of the
united states, in pursuance of the present confederation, shall be deemed and
considered as a charge against the united states, for payment and satisfac-
tion whereof the said united states, and the public faith are hereby solemnly
pledged.
Article XIII. Every state shall abide by the determinations of the united
states in congress assembled, on all questions which by this confederation are
submitted to them. And the Articles of this confederation shall be inviolably
observed by every state, and the union shall be perpetual; nor shall any alter-
ation at any time hereafter be made in any of them; unless such alteration be
agreed to in a congress of the united states, and be afterwards confirmed by
the legislatures of every state.
And Whereas it hath pleased the Great Governor of the World to incline
the hearts of the legislatures we respectively represent in congress, to approve
of, and to authorize us to ratify the said articles of confederation and per-
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petual union. Know Ye that we the undersigned delegates, by virtue of the
power and authority to us given for that purpose, do by these presents, in
the name and in behalf of our respective constituents, fully and entirely rat-
ify and confirm each and every of the said articles of confederation and per-
petual union, and all and singular the matters and things therein contained:
And we do further solemnly plight and engage the faith of our respective con-
stituents, that they shall abide by the determinations of the united states in
congress assembled, on all questions, which by the said confederation are
submitted to them. And that the articles thereof shall be inviolably observed
by the states we respectively represent, and that the union shall be perpetual.
In Witness whereof we have hereunto set our hands in Congress. Done at
Philadelphia in the state ofPennsylvania the ninth day ofJuly, in the Year of
our Lord one Thousand seven Hundred and Seventy-eight, and in the third
year of the independence of America.
Josiah Bartlett,

John Wentworth, junr
 On the part & behalf of the State of New Hampshire.
August 8th, 1778,

John Hancock,

Samuel Adams,

Elbridge Gerry,
 On the part and behalf of the State of Massachusetts
Francis Dana,

Bay.
James Lovell,

Samuel Holten,
William Ellery,
 On the part and behalf of the State of Rhode-Island
Henry Marchant,

and Providence Plantations.
John Collins,

Roger Sherman,

Samuel Huntington,

Oliver Wolcott,
 On the part and behalf of the State of Connecticut.
Titus Hosmer,

Andrew Adams,

Jas Duane,

Fra: Lewis,
 On the part and behalf of the State of New York.
Wm Duer,

Gouvr Morris,

Jno Witherspoon,
 On the Part and in Behalf of the State of New Jersey,
Nathl Scudder,


November 26th, 1778.
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509
Robert Morris,

Daniel Roberdeau,

Jon. Bayard Smith,
 On the part and behalf of the State of Pennsylvania.
William Clingar,

Joseph Reed, 22d July, 1778,
Thos McKean,

Feby 22d, 1779,

John Dickinson,
 On the part & behalf of the State of Delaware.
May 5th, 1779,

Nicholas Van Dyke,

John Hanson,

March 1, 1781,
 On the part and behalf of the State of Maryland.
Daniel Carroll, do

Richard Henry Lee,

John Banister,

Thomas Adams,
 On the Part and Behalf of the State of Virginia.
Jno Harvie,

Francis Lightfoot Lee,

John Penn,

July 21st, 1778,

On the part and behalf of the State of North
Corns Harnett,

Carolina.
Jno Williams,
Henry Laurens,

William Henry Drayton,  On the part and on behalf of the State of South
Jno Mathews,

Carolina.
Richd Hutson,

Thos Heyward, junr.

Jno Walton,

24th July, 1778,
 On the part and behalf of the State of Georgia.
Edw d Telfair,

Edw d Langworthy,
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510
Source: Charles C. Tansill, ed., Documents Illustrative of the Formation of the Union of
the American States (Washington, D.C.: U.S. Government Printing Office, 1927), 38.
appendix 3
Virginia Resolution Proposing the Annapolis Convention
January 21, 1786
A motion was made, that the House do come to the following resolution:
Resolved, That Edmund Randolph, James Madison, jun. Walter Jones,
Saint George Tucker and Meriwether Smith, Esquires, be appointed com-
missioners, who, or any three of whom, shall meet such commissioners as
may be appointed by the other States in the Union, at a time and place to be
agreed on, to take into consideration the trade of the United States; to exam-
ine the relative situations and trade of the said States; to consider how far a
uniform system in their commercial regulations may be necessary to their
common interest and their permanent harmony; and to report to the several
States, such an act relative to this great object, as, when unanimously ratified
by them, will enable the United States in Congress, effectually to provide for
the same.
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Source: Documents Illustrative of the Formation of the Union of the American States
(Washington, D.C.: U.S. Government Printing Office, 1927), 39– 43.
appendix 4
Proceedings of the Annapolis Convention
annapolis in the state of maryland
September 11th 1786
At a meeting of Commissioners, from the States of New York, New Jersey,
Pennsylvania, Delaware and Virginia—
Present
Alexander Hamilton
New York
Egbert Benson
}
Abraham Clarke
William C. Houston
New Jersey
James Schuarman
}
Tench Coxe
Pennsylvania
George Read
John Dickinson
Delaware
Richard Bassett
}
Edmund Randolph
James Madison, Junior
Virginia
Saint George Tucker
}
Mr. Dickinson was unanimously elected Chairman.
The Commissioners produced their Credentials from their respective
States; which were read.
After a full communication of Sentiments, and deliberate consideration of
what would be proper to be done by the Commissioners now assembled, it
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was unanimously agreed: that a Committee be appointed to prepare a draft
of a Report to be made to the States having Commissioners attending at this
meeting—Adjourned ’till Wednesday Morning.
Wednesday September 13th 1786
Met agreeable to Adjournment.
The Committee, appointed for that purpose, reported the draft of the re-
port; which being read, the meeting proceeded to the consideration thereof,
and after some time spent therein, Adjourned ’till tomorrow Morning.
Thursday September 14th 1786
Met agreeable to Adjournment.
The meeting resumed the consideration of the draft of the Report, and
after some time spent therein, and amendments made, the same was unani-
mously agreed to, and is as follows, to wit.
To the Honorable, the Legislatures of Virginia, Delaware, Pennsylvania, New
Jersey, and New York—
The Commissioners from the said States, respectively assembled at An-
napolis, humbly beg leave to report.
That, pursuant to their several appointments, they met, at Annapolis in
the State ofMaryland, on the eleventh day of September Instant, and having
proceeded to a Communication oftheir powers; they found that the States
ofNew York, Pennsylvania, and Virginia, had, in substance, and nearly in the
same terms, authorised their respective Commissioners “to meet such Com-
missioners as were, or might be, appointed by the other States in the Union,
at such time and place, as should be agreed upon by the said Commissioners
to take into consideration the trade and Commerce of the United States, to
consider how far an uniform system in their commercial intercourse and
regulations might be necessary to their common interest and permanent har-
mony, and to report to the several States such an Act, relative to this great
object, as when unanimously ratified by them would enable the United States
in Congress assembled effectually to provide for the same.”
That the State ofDelaware, had given similar powers to their Com-
missioners, with this difference only, that the Act to be framed in virtue of
Appendixes
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those powers, is required to be reported “to the United States in Congress
assembled, to be agreed to by them, and confirmed by the Legislatures of
every State.”
That the State ofNew Jersey had enlarged the object of their appointment,
empowering their Commissioners, “to consider how far an uniform system
in their commercial regulations and other important matters, might be neces-
sary to the common interest and permanent harmony of the several States,”
and to report such an Act on the subject, as when ratified by them “would
enable the United States in Congress assembled, effectually to provide for the
exigencies of the Union.”
That appointments of Commissioners have also been made by the States
ofNew Hampshire, Massachusetts, Rhode Island, and North Carolina, none
of whom however have attended; but that no information has been received
by your Commissioners, of any appointment having been made by the States
of Connecticut, Maryland, South Carolina or Georgia.
That the express terms of the powers to your Commissioners supposing a
deputation from all the States, and having for object the Trade and Com-
merce of the United States, Your Commissioners did not conceive it advisable
to proceed on the business of their mission, under the Circumstance of so
partial and defective a representation.
Deeply impressed however with the magnitude and importance of the ob-
ject confided to them on this occasion, your Commissioners cannot forbear
to indulge an expression of their earnest and unanimous wish, that speedy
measures may be taken, to effect a general meeting, of the States, in a future
Convention, for the same, and such other purposes, as the situation of pub-
lic affairs, may be found to require.
If in expressing this wish, or in intimating any other sentiment, your
Commissioners should seem to exceed the strict bounds of their appoint-
ment, they entertain a full confidence, that a conduct, dictated by an anxi-
ety for the welfare, of the United States, will not fail to receive an indulgent
construction.
In this persuasion, your Commissioners submit an opinion, that the Idea
of extending the powers of their Deputies, to other objects, than those of
Commerce, which has been adopted by the State ofNew Jersey, was an im-
provement on the original plan, and will deserve to be incorporated into that
of a future Convention; they are the more naturally led to this conclusion, as
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in the course of their reflections on the subject, they have been induced to
think, that the power of regulating trade is of such comprehensive extent, and
will enter so far into the general System of the foederal government, that to
give it efficacy, and to obviate questions and doubts concerning its precise
nature and limits, may require a correspondent adjustment of other parts of
the Foederal System.
That there are important defects in the system of the Foederal Govern-
ment is acknowledged by the Acts of all those States, which have concurred
in the present Meeting; That the defects, upon a closer examination, may be
found greater and more numerous, than even these acts imply, is at least so
far probable, from the embarrassments which characterise the present State
of our national affairs, foreign and domestic, as may reasonably be supposed
to merit a deliberate and candid discussion, in some mode, which will unite
the Sentiments and Councils of all the States. In the choice of the mode, your
Commissioners are of opinion, that a Convention of Deputies from the dif-
ferent States, for the special and sole purpose of entering into this investiga-
tion, and digesting a plan for supplying such defects as may be discovered to
exist, will be entitled to a preference from considerations, which will occur,
without being particularised.
Your Commissioners decline an enumeration of those national circum-
stances on which their opinion respecting the propriety of a future Conven-
tion, with more enlarged powers, is founded; as it would be an useless in-
trusion of facts and observations, most of which have been frequently the
subject of public discussion, and none of which can have escaped the pene-
tration of those to whom they would in this instance be addressed. They are
however of a nature so serious, as, in the view of your Commissioners to ren-
der the situation of the United States delicate and critical, calling for an exer-
tion of the united virtue and wisdom of all the members of the Confederacy.
Under this impression, Your Commissioners, with the most respectful
deference, beg leave to suggest their unanimous conviction, that it may es-
sentially tend to advance the interests of the union, if the States, by whom
they have been respectively delegated, would themselves concur, and use
their endeavours to procure the concurrence of the other States, in the ap-
pointment of Commissioners, to meet at Philadelphia on the second Mon-
day in May next, to take into consideration the situation of the United States,
to devise such further provisions as shall appear to them necessary to render
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the constitution of the Foederal 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 Legislatures of every State, will effectually provide for the same.
Though your Commissioners could not with propriety address these
observations and sentiments to any but the States they have the honor to
Represent, they have nevertheless concluded from motives of respect, to
transmit Copies of this Report to the United States in Congress assembled,
and to the executives of the other States.
By order of the Commissioners.
Dated at Annapolis
September 14th, 1786
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Source: Robert Rutland and William M. E. Rachal, eds., The Papers of James Madison
(Chicago: University of Chicago Press, 1975), 9 : 163–164.
appendix 5
Virginia Resolution Providing for Delegates
to the Federal Convention of 1787
November 23, 1786
Whereas the Commissrs. who assembled at Annapolis on the 14th. day of
Sepr. last for the purpose of devising and reporting the means of enabling
Congress to provide effectually for the commercial interests of the U. States,
have represented the necessity of extending the revision of the federal System
to all its defects, and have recommended that deputies for that purpose be
appointed by the several Legislatures to meet in Convention in the city of
Philada. on the 2d. Monday ofMay next; a provision which seems preferable
to a discussion of the subject in Congress, where it might be too much inter-
rupted by the ordinary business before them, and where it would besides
be deprived of the valuable counsels of sundry individuals who are disquali-
fied by the Constitutions or Laws of particular States, or restrained by pecu-
liar circumstances from a seat in that Assembly: And Whereas the General
Assembly ofthis Commonwealth taking into view the actual situation of
the Confederacy, as well as reflecting on the Alarming representations made
from time to time by the U. S. in Congress, particularly in their Act of
the fifteenth day of Feby. last, can no longer doubt that the crisis is arrived
at which the good people of America are to decide the solemn question,
whether they will by wise and magnanimous efforts reap the just fruits of that
Independence which they have so gloriously acquired, and of that Union
which they have cemented with so much of their common blood; or whether
by giving way to unmanly jealousies and prejudices, or to partial and transi-
tory interests they will renounce the auspicious blessings prepared for them
by the Revolution, and furnish to its enemies an eventual triumph over those
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by whose virtue & valour it has been accomplished: And Whereas the same
noble and extended policy, and the same fraternal & affectionate senti-
ments which originally determined the Citizens of this Commonwealth to
unite with their brethren of the other States in establishing a federal Govern-
ment, cannot but be felt with equal force now as motives to lay aside every
inferior consideration, and to concur in such farther concessions and provi-
sions as may be necessary to secure the great objects for which that Govern-
ment was instituted, and to render the U. States as happy in peace as they have
been glorious in war. Be it therefore enacted by the General Assembly of the
Commonwealth ofVirginia that seven commissioners be appointed by joint
ballot of both Houses ofAssembly, who, or any three ofthem, are hereby
authorized as deputies from this Commonwealth to meet such deputies as
may be appointed and authorized by other States, to assemble in Convention
at Philada. as above recommended: and to join with them in devising and
discussing all such alterations and further provisions as may be necessary to
render the federal Constitution adequate to the exigenc[i]es of the Union, and
in reporting such an act for that purpose to the U. S. in Congress, as when
agreed to by them, and duly confirmed by the several States, will effectually
provide for the same. And the Governor is requested to transmit forthwith a
copy of this Act to the U. S. in Congs. and to the Executives of each of the
States in the Union.
And Be it further enacted that in case of the death of any of the sd. depu-
ties, or of their declining their appts. the Executive are hereby authorised to
supply such vacancies.
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Source: Charles C. Tansill, ed., Documents Illustrative of the Formation of the Union of
the American States (Washington, D.C.: U.S. Government Printing Office, 1927), 44 – 46.
appendix 6
Call by the Continental Congress
for the Federal Convention of 1787
Wednesday Feby. 21, 1787
The report of a grand comee. consisting of Mr. Dane Mr. Varnum Mr. S. M.
Mitchell Mr. Smith Mr. Cadwallader Mr. Irwine Mr. N. Mitchell Mr. Forrest
Mr. Grayson Mr. Blount Mr. Bull & Mr. Few, to whom was referred a letter
of 14 Septr. 1786 from J. Dickinson written at the request of Commissioners
from the States of Virginia Delaware Pensylvania New Jersey & New York
assembled at the City of Annapolis together with a copy of the report of the
said commissioners to the legislatures of the States by whom they were ap-
pointed, being an order of the day was called up & which is contained in the
following resolution viz
“Congress having had under consideration the letter ofJohn Dickinson
esqr. chairman of the Commissioners who assembled at Annapolis during
the last year also the proceedings of the said commissioners and entirely co-
inciding with them as to the inefficiency of the federal government and the
necessity of devising such farther provisions as shall render the same ade-
quate to the exigencies of the Union do strongly recommend to the different
legislatures to send forward delegates to meet the proposed convention on
the second Monday in May next at the city ofPhiladelphia.”
. . .
A motion was then made by the delegates for Massachusetts to postpone
the farther consideration of the report in order to take into consideration a
motion which they read in their place, this being agreed to, the motion of
the delegates for Massachusetts was taken up and being amended was agreed
to as follows
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Appendixes
Whereas there is provision in the Articles of Confederation & 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 expe-
rience 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 in May next a Convention of delegates who shall have been ap-
pointed 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 & the preservation of
the Union.
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Source: Charles C. Tansill, ed., Documents Illustrative of the Formation of the Union
of the American States (Washington, D.C.: U.S. Government Printing Office, 1927),
1005–1006.
appendix 7
Resolution of the Federal Convention Submitting
the Constitution to the Continental Congress
In Convention Monday September 17th 1787
Present
The States of
New Hampshire, Massachusetts, Connecticut, Mr. Hamilton from New
York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Caro-
lina, South Carolina and Georgia. Resolved,
That the preceeding Constitution be laid before the United States in Con-
gress assembled, and that it is the Opinion of this Convention, that it should
afterwards be submitted to a Convention of Delegates, chosen in each State
by the People thereof, under the Recommendation of its Legislature, for
their Assent and Ratification; and that each Convention assenting to, and rat-
ifying the Same, should give Notice thereof to the United States in Congress
assembled.
Resolved, That it is the Opinion of this Convention, that as soon as the Con-
ventions of nine States shall have ratified this Constitution, the United States
in Congress assembled should fix a Day on which Electors should be ap-
pointed by the States which shall have ratified the same, and a Day on which
the Electors should assemble to vote for the President, and the Time and
Place for commencing Proceedings under this Constitution. That after such
Publication the Electors should be appointed, and the Senators and Repre-
sentatives elected: That the Electors should meet on the Day fixed for the
Election of the President, and should transmit their Votes certified, signed,
sealed and directed, as the Constitution requires, to the Secretary of the
United States in Congress assembled, that the Senators and Representatives
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should convene at the Time and Place assigned; that the Senators should ap-
point a President of the Senate, for the sole Purpose of receiving, opening and
counting the Votes for President; and, that after he shall be chosen, the Con-
gress, together with the President, should, without Delay, proceed to execute
this Constitution.
By the Unanimous Order of the Convention
Go Washington Presidt
W. Jackson Secretary.
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Source: Charles C. Tansill, ed., Documents Illustrative of the Formation of the Union
of the American States (Washington, D.C.: U.S. Government Printing Office, 1927),
1003–1004.
appendix 8
Washington’s Letter ofTransmittal to the President
of the Continental Congress
In Convention, September 17, 1787
Sir,
We have now the honor to submit to the consideration of the United States
in Congress assembled, that Constitution which has appeared to us the most
adviseable.
The friends of our country have long seen and desired, that the power of
making war, peace, and treaties, that oflevying money and regulating com-
merce, and the correspondent executive and judicial authorities should be
fully and effectually vested in the general government of the Union: But the
impropriety of delegating such extensive trust to one body of men is evi-
dent—Hence results the necessity of a different organization.
It is obviously impracticable in the federal government of these states, to
secure all rights of independent sovereignty to each, and yet provide for the
interest and safety of all: Individuals entering into society, must give up a
share ofliberty to preserve the rest. The magnitude of the sacrifice must de-
pend as well on situation and circumstance, as on the object to be obtained.
It is at all times difficult to draw with precision the line between those rights
which must be surrendered, and those which may be reserved; and on the
present occasion this difficulty was encreased by a difference among the sev-
eral states as to their situation, extent, habits, and particular interests.
In all our deliberations on this subject we kept steadily in our view, that
which appears to us the greatest interest of every true American, the con-
solidation of our Union, in which is involved our prosperity, felicity, safety,
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perhaps our national existence. This important consideration, seriously and
deeply impressed on our minds, led each state in the Convention to be less
rigid on points of inferior magnitude, than might have been otherwise ex-
pected; and thus the Constitution, which we now present, is the result of a
spirit of amity, and of that mutual deference and concession which the pecu-
liarity of our political situation rendered indispensible.
That it will meet the full and entire approbation of every state is not per-
haps to be expected; but each will doubtless consider, that had her interest
been alone consulted, the consequences might have been particularly dis-
agreeable or injurious to others; that it is liable to as few exceptions as could
reasonably have been expected, we hope and believe; that it may promote the
lasting welfare of that country so dear to us all, and secure her freedom and
happiness, is our most ardent wish.
With great respect, We have the honor to be, Sir,
Your Excellency’s
most obedient and humble servants,
George Washington, President
By unanimous Order of the Convention
His Excellency the President of Congress
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Source: Charles C. Tansill, ed., Documents Illustrative of the Formation of the Union of
the American States (Washington, D.C.: U.S. Government Printing Office, 1927), 1007.
appendix 9
Resolution of the Continental Congress Submitting
the Constitution to the Several States
Friday Sept 28. 1787
Congress assembled present Newhampshire Massachusetts Connecticut
New York New Jersey Pensylvania, Delaware Virginia North Carolina South
Carolina and Georgia and from Maryland Mr Ross
Congress having received the report of the Convention lately assembled in
Philadelphia
Resolved Unanimously that the said Report with the resolutions and letter
accompanying the same be transmitted to the several legislatures in Order to
be submitted to a convention ofDelegates chosen in each state by the people
thereof in conformity to the resolves of the Convention made and provided
in that case.
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appendix 10
Letter of the Secretary of the Continental Congress
Transmitting Copy of the Constitution
to the Several Governors
Office of Secretary of Congress
Sept 28th 1787—
Sir
In obedience to an unanimous resolution of the United States in Congress
Assembled, a copy of which is annexed, I have the honor to transmit to Your
Excellency, the Report of the Convention lately Assembled in Philadelphia,
together with the resolutions and letter accompanying the same; And have
to request that Your Excellency will be pleased to lay the same before the
Legislature, in order that it may be submitted to a Convention ofDelegates
chosen in Your State by the people of the State in conformity to the resolves
of the Convention, made & provided in that case.—
with the greatest respect
I have the honor &c—
C: T—
Source: Charles C. Tansill, ed., Documents Illustrative of the Formation of the Union of
the American States (Washington, D.C.: U.S. Government Printing Office, 1927), 1008.
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445
241– 42
195, 197,
240, 272–81
295–96
273, 313–14
282
526
The Constitution of the United States
(cross-referenced with The Federalist)
the preamble
We the people of the United States, in Order to form a more perfect Union,
establish Justice, insure domestic Tranquility, provide for the common de-
fence, promote the general Welfare, and secure the Blessings of Liberty to
ourselves and our Posterity, do ordain and establish this Constitution for the
United States of America.
article i
section 1
All legislative Powers herein granted shall be vested in a Congress of the
United States, which shall consist of a Senate and House of Representatives.
section 2
1. The House ofRepresentatives shall be composed ofMembers chosen
every second Year by the People of the several States, and the Electors in each
State shall have the Qualifications requisite for Electors of the most numer-
ous Branch of the State Legislature.
2. No Person shall be a Representative who shall not have attained to the
Age of twenty-five Years, and been seven Years a Citizen of the United States,
and who shall not, when elected, be an Inhabitant of that State in which he
shall be chosen.
3. [Representatives and direct Taxes shall be apportioned among the sev-
eral States which may be included within this Union, according to their re-
spective Numbers, which shall be determined by adding to the whole Num-
Source: U.S. Congress, House, Committee on the Judiciary, The Constitution of the
United States of America, as Amended through July 1971, H. Doc. 93–215, 93rd Cong.,
2nd sess. 1974.
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527
282–86
301
286 –95
410
195, 197,
240, 311,
319–32
308
350 –51
319, 333
1. The part in brackets was changed by section 2 of the Fourteenth Amendment.
2. The part in brackets was changed by section 1 of the Seventeenth Amendment.
3. The part in brackets was changed by the second paragraph of the Seventeenth
Amendment.
ber of free Persons, including those bound to Service for a Term of Years, and
excluding Indians not taxed, three fifths of all other Persons.]1 The actual
Enumeration shall be made within three Years after the first Meeting of the
Congress of the United States, and within every subsequent Term of ten
Years, in such Manner as they shall by Law direct. The Number ofRepresen-
tatives shall not exceed one for every thirty Thousand, but each State shall
have at Least one Representative; and until such inumeration shall be made,
the State ofNew Hampshire shall be entitled to choose three, Massachusetts
eight, Rhode Island and Providence Plantations one, Connecticut five, New-
York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six,
Virginia ten, North Carolina five, South Carolina five, and Georgia three.
4. When vacancies happen in the Representation from any State, the Ex-
ecutive Authority thereof shall issue Writs of Election to fill such Vacancies.
5. The House ofRepresentatives shall choose their Speaker and other Offi-
cers; and shall have the sole Power of Impeachment.
section 3
1. The Senate of the United States shall be composed of two Senators from
each State [chosen by the Legislature thereof,] 2 for six Years; and each Sena-
tor shall have one Vote.
2. Immediately after they shall be assembled in Consequence of the first
Election, they shall be divided as equally as may be into three Classes. The
Seats ofthe Senators ofthe first Class shall be vacated at the Expiration of
the second Year, of the second Class at the Expiration of the fourth Year, and
of the third Class at the Expiration of the sixth Year, so that one third may be
chosen every second Year; [and ifVacancies happen by resignation, or other-
wise, during the Recess of the Legislature of any State, the Executive thereof
may make temporary Appointments until the next Meeting of the Legisla-
ture, which shall then fill such Vacancies.] 3
3. No Person shall be a Senator who shall not have attained to the Age of
thirty Years, and been nine Years a citizen of the United States, and who shall
not, when elected, be an Inhabitant of that State for which he shall be chosen.
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195, 337– 47,
409 –10
338
443
305–18
304 –5
Appendixes
528
4. The part in brackets was changed by section 2 of the Twentieth Amendment.
4. The Vice President of the United States, shall be President of the Senate,
but shall have no Vote, unless they be equally divided.
5. The Senate shall choose their other Officers, and also a President pro
tempore, in the Absence of the Vice President, or when he shall exercise the
Office of President of the United States.
6. The Senate shall have the sole Power to try all impeachments. When
sitting for that Purpose, they shall be on Oath or Affirmation. When the
President ofthe United States is tried, the Chief Justice shall preside: And
no Person shall be convicted without the Concurrence of two thirds of the
Members present.
7. Judgment in Cases ofImpeachment 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 Pun-
ishment, according to Law.
section 4
1. The Times, Places and Manner ofholding 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, ex-
cept as to the Places of choosing Senators.
2. The Congress shall assemble at least once in every Year, and such
Meeting shall [be on the first Monday in December],4 unless they shall by
Law appoint a different Day.
section 5
1. Each House shall be the Judge of the Elections, Returns and Qualifica-
tions of its own Members, and a Majority of each shall constitute a Quorum
to do Business; but a smaller Number may adjourn from day to day, and may
be authorized to compel the attendance of absent Members, in such Manner,
and under such Penalties as each House may provide.
2. Each House may determine the Rules of its Proceedings, punish its
Members for Disorderly Behavior, and, with the Concurrence of two thirds,
expel a Member.
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209, 395
344
356,
308 –84
Appendixes
529
3. Each House shall keep a Journal ofits Proceedings, and from time
to time publish the same, excepting such parts as may in their Judgment re-
quire Secrecy; and the Yeas and Nays of the Members of either House on any
question shall, at the Desire of one fifth of those Present, be entered on the
Journal.
4. Neither House, during the Session of Congress, shall, without the Con-
sent of the other, adjourn for more than three days, nor to any other Place
than that in which the two Houses shall be sitting.
section 6
1. The Senators and Representatives shall receive a Compensation for their
Services, to be ascertained by Law, and paid out of the Treasury of the United
States. They shall in all Cases, except Treason, Felony and Breach ofthe
Peace, be privileged from Arrest during their Attendance at the Session of
their respective Houses, and in going to and returning from the same; and
for any Speech or Debate in either House, they shall not be questioned in any
other Place.
2. No Senator or Representative shall, during the Time for which he was
elected, be appointed to any civil Office under the Authority of the United
States, which shall have been created, or the Emoluments whereof shall have
been increased during such time; and no person holding any Office under the
United States, shall be a Member of either House during his Continuance in
Office.
section 7
1. All Bills for raising Revenue shall originate in the House of Represen-
tatives; but the Senate may propose or concur with Amendments as on other
Bills.
2. Every Bill which shall have passed the House ofRepresentatives and
the Senate, shall, before it becomes a Law, be presented to the President of the
United States. Ifhe approves, he shall sign it, but if not he shall return it,
with his Objections to that House in which it shall have originated, who shall
enter the Objections at large on their Journal, and proceed to reconsider it.
If, after such Reconsideration two thirds of that House shall agree to pass the
Bill, it shall be sent, together with the Objections, to the other House, by
which it shall likewise be reconsidered, and if approved by two thirds of that
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356,
380 –84
145–79,
213 –15,
291–93,
448 – 49
213
215–22
155–56,
217–18
219 –20
220
222
222
420 –21
Appendixes
530
House, it shall become a law. But in all such Cases the Votes ofHouses shall
be determined by Yeas and Nays, and the Names ofthe Persons voting for
and against the Bill shall be entered on the Journal of each House respectively.
Ifany Bill shall not be returned by the President within ten Days (Sundays
excepted) after it shall have been presented to him, the same shall be a Law,
in like Manner as ifhe had signed it, unless the Congress, by their Adjourn-
ment prevent its Return, in which Case it shall not be a Law.
3. Every Order, Resolution, or Vote, to which the Concurrence ofthe
Senate and House ofRepresentatives may be necessary (except on a question
ofAdjournment) shall be presented to the President ofthe United States;
and before the same shall take Effect, shall be approved by him, or being dis-
approved by him, shall be repassed by two thirds ofthe Senate and House
ofRepresentatives, according to the Rules and Limitations prescribed in the
Case of a Bill.
section 8
The Congress shall have Power
1. To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts
and provide for the common Defence and general Welfare of the United
States; but all Duties, Imposts and Excises shall be uniform throughout the
United States;
2. To borrow Money on the credit of the United States;
3. To regulate Commerce with foreign Nations, and among the several
States, and with the Indian Tribes;
4. To establish an uniform Rule of Naturalization, and uniform Laws on
the subject ofBankruptcies throughout the United States;
5. To coin Money, regulate the value thereof, and of foreign Coin, and fix
the Standard ofWeights and Measures;
6. To provide for the Punishment of counterfeiting the Securities and cur-
rent Coin of the United States;
7. To establish Post Offices and post Roads;
8. To promote the Progress of Science and useful Arts, by securing for
limited Times to Authors and Inventors the exclusive Right to their respec-
tive Writings and Discoveries;
9. To constitute Tribunals inferior to the supreme Court;
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208, 357–58
112–13, 117–
18, 129–32
208 –12
211–13
140 – 45
140 – 45, 293
155, 222–23
223
141, 158 –61,
233–35
217–18
433,
442– 44
Appendixes
531
10. To define and punish Piracies and Felonies committed on the high
Seas, and Offenses against the Law of Nations;
11. To declare War, grant Letters ofMarque and Reprisal, and make Rules
concerning Captures on Land and Water;
12. To raise and support Armies, but no Appropriation ofMoney to that
Use shall be for a longer Term than two Years;
13. To provide and maintain a Navy;
14. To make Rules for the Government and Regulation of the land and
naval Forces;
15. To provide for calling forth the Militia to execute the laws of the Union,
suppress Insurrections, and repel Invasions;
16. 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;
17. To exercise exclusive Legislation in all Cases whatsoever, over such
District (not exceeding ten Miles square) as may, by Cession of particular
States, and the Acceptance of Congress, become the Seat of the Government
of the United States, and to exercise like Authority over all Places purchased
by the Consent of the Legislature of the State in which the same shall be, for
the Erection ofForts, Magazines, Arsenals, dock-Yards, and other needful
Buildings;—And
18. To make all Laws which shall be necessary and proper for carrying into
Execution the foregoing Powers, and all other Powers vested by this Con-
stitution in the Government of the United States, or in any Department or
officer thereof.
section 9
1. The Migration or Importation ofsuch Persons as any ofthe States now
existing shall think proper to admit shall not be prohibited by the Con-
gress prior to the Year one thousand eight hundred and eight, but a Tax or
duty may be imposed on such Importation, not exceeding ten dollars for
each Person.
2. The privilege of the Writ of Habeas Corpus shall not be suspended, un-
less when in Cases ofRebellion or Invasion the public Safety may require it.
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232, 403,
443 – 44
155
198 –99,
232, 360 –
61, 442– 44,
453
157, 230 –31
155, 156,
230 –33
155, 230 –33
Appendixes
532
3. No Bill of Attainder or ex post facto Law shall be passed.
4. No Capitation, or other direct, Tax shall be laid, unless in Proportion to
the Census or Enumeration herein before directed to be taken.5
5. No Tax or Duty shall be laid on Articles exported from any State.
6. No Preference shall be given by any Regulation of Commerce or Reve-
nue to the Ports of one State over those of another: nor shall Vessels bound
to, or from, one State, be obliged to enter, clear, or pay Duties in another.
7. No Money shall be drawn from the Treasury, but in Consequence of
Appropriations made by Law; and a regular Statement and Account of the
Receipts and Expenditures of all public Money shall be published from time
to time.
8. No Title ofNobility shall be granted by the United States: And no Per-
son holding any Office of Profit or Trust under them shall, without the Con-
sent of the Congress, accept of any present, Emolument, Office, or Title, of
any kind what ever, from any King, Prince, or foreign State.
section 10
1. No State shall enter into any Treaty, Alliance, or Confederation; grant
Letters ofMarque and Reprisal; coin Money; emit Bills of Credit; make any
Thing but gold and silver Coin a Tender in payment ofDebts; pass any Bill
of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts,
or grant any Title ofNobility.
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.
3. No State shall, without the Consent of Congress, lay any Duty of Ton-
nage, keep Troops, or Ships ofWar in time of Peace, enter into any Agree-
ment or Compact with another State, or with a foreign Power, or engage in
War, unless actually invaded, or in such imminent Danger as will not admit
of delay.
5. The Sixteenth Amendment gave Congress the power to tax incomes.
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195, 197,
353–55,
361–78
197, 240,
351–54,
399– 400
345
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533
6. The material in brackets has been superseded by the Twelfth Amendment.
article ii
section 1
1. The executive Power shall be vested in a President ofthe United States of
America. He shall hold his Office during the Term of four Years, and, together
with the Vice President, chosen for the same Term, be elected, as follows:
2. Each State shall appoint, in such Manner as the Legislature thereof may
direct, a Number of Electors, equal to the whole number of Senators and
Representatives to which the State may be entitled in the Congress: but no
Senator or Representative, or Person holding an Office of Trust or Profit
under the United States, shall be appointed an Elector.
3. [The Electors shall meet in their respective States, and vote by Ballot
for two Persons, of whom one at least shall not be an Inhabitant of the same
State with themselves. And they shall make a List of all the Persons voted for,
and of the Number of Votes for each; which List they shall sign and certify,
and transmit sealed to the Seat of the Government of the United States, di-
rected to the President ofthe Senate. The President ofthe Senate shall, in
the Presence of the Senate and House of Representatives, open all the Certifi-
cates, and the Votes shall then be counted. The Person having the greatest
Number ofVotes shall be the President, if such Number be a Majority of
the whole Number ofElectors appointed; and if there be more than one
who have such Majority and have an equal Number ofVotes, then the House
of Representatives shall immediately choose by Ballot one of them for Presi-
dent; and ifno Person have a Majority, then from the five highest on the
list the said House shall in like Manner choose the President. But in choos-
ing the President, the Votes shall be taken by States, the Representation
from each State having one Vote; A quorum for this Purpose shall consist
ofa Member or Members from two thirds ofthe States, and a Majority of
all the States shall be necessary to a Choice. In every Case, after the Choice
ofthe President, the Person having the greatest Number of Votes ofthe
electors shall be the Vice President. But if there should remain two or more
who have equal Votes, the Senate shall choose from them by Ballot the Vice
President.] 6
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379 –81,
408 –10
357–58,
384 –85
385
357–58,
384 –86
Appendixes
534
7. This provision has been affected by the Twenty-fifth Amendment.
4. The Congress may determine the Time of choosing the Electors, and the
Day on which they shall give their Votes; which Day shall be the same
throughout the United States.
5. No Person, except a natural-born Citizen, or a Citizen of the United
States at the time of the Adoption of this Constitution, shall be eligible to that
Office of President; neither shall any Person be eligible to that Office who
shall not have attained to the Age of thirty-five Years, and been fourteen Years
a Resident within the United States.
6. In Case of the Removal of the President from Office, or of his Death,
Resignation, or Inability to discharge the Powers and Duties of the said
Office,7 the Same shall devolve on the Vice President, and the Congress may
by Law provide for the Case of Removal, Death, Resignation, or Inability,
both the President and Vice President, declaring what Officer shall then act
as President, and such Officer shall act accordingly, until the Disability be
removed, or a President shall be elected.
7. The President shall, at stated Times, receive for his Services, a Compen-
sation, 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.
8. Before he enter on the Execution of his Office, he shall take the follow-
ing Oath or affirmation:—“I do solemnly swear (or affirm) that I will faith-
fully execute the Office of President of the United States, and will, to the best
of my Ability, preserve, protect, and defend the Constitution of the United
States.”
section 2
1. The President shall be Commander in Chief of the Army and Navy of
the United States, and ofthe Militia ofthe several States, when called into the
actual Service of the United States; he may require the Opinion, in writing, of
the principal Officer in each of the executive Departments, upon any Subject
relating to the Duties of their respective Offices, and he shall have Power to
grant Reprieves and Pardons for Offences against the United States, except
in Cases ofImpeachment.
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215–17,
332–37,
342, 344 –
47
215–17,
343– 46,
360, 391–99
348 –51,
391–92
399– 400,
357
399– 400
399– 400,
356 –59
399, 215–17,
359
356 –57,
399– 400
195, 355–56
417– 42
340 – 42
Appendixes
535
2. He shall have Power, by and with the Advice and Consent of the Senate,
to make Treaties, provided two thirds of the Senators present concur; and he
shall nominate, and by and with the Advice and Consent ofthe Senate,
shall appoint, Ambassadors, other public Ministers, and Consuls, Judges of
the supreme Court, and all other Officers of the United States, whose Ap-
pointments are not herein otherwise provided for, and which shall be estab-
lished by Law: but the Congress may by Law vest the Appointment ofsuch
inferior Officers, as they think proper, in the President alone, in the Courts
ofLaw, or in the Heads ofDepartments.
3. 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.
section 3
He shall from time to time give to the Congress Information of the State of
the Union, and recommend to their Consideration such Measures as he shall
judge necessary and expedient; he may, on extraordinary Occasions, convene
both Houses, or either of them, and in Case of Disagreement between them,
with Respect to the Time of Adjournment, he may adjourn them to such
Time as he shall think proper; he shall receive Ambassadors and other public
Ministers; he shall take Care that the Laws be faithfully executed, and shall
Commission all the Officers of the United States.
section 4
The President, Vice President and all civil Officers of the United States, shall
be removed from Office on Impeachment for, and Conviction of, Treason,
Bribery, or other high Crimes and Misdemeanors.
article iii
section 1
The judicial Power of the United States, shall be vested in one supreme Court,
and in such inferior Courts as the Congress may from time to time ordain
and establish. The Judges, both of the supreme and inferior Courts, shall hold
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401–8
408 –10
411–16
423 –25
430 – 42
443 – 44
223 –24, 443
223 –24, 443
Appendixes
536
8. These clauses were affected by the Eleventh Amendment.
their Offices during good Behavior, and shall, at stated Times, receive for
their Services, a Compensation, which shall not be diminished during their
Continuance in Office.
section 2
1. The judicial Power shall extend to all Cases in Law and Equity, arising
under this Constitution, the Laws of the United States, and Treaties made, or
which shall be made, under their Authority;—to all Cases affecting Ambassa-
dors, 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; 8 —between Citizens of different States,—be-
tween Citizens of the same State claiming Lands under Grants of different
States, and between a State, or the Citizens thereof, and foreign States, Citi-
zens or Subjects.8
2. In all Cases affecting Ambassadors, other public Ministers, and Con-
suls, and those in which a State shall be Party, the supreme Court shall have
original Jurisdiction. In all the other Cases before mentioned, the supreme
Court shall have appellate Jurisdiction, both as to Law and Fact, with such
Exceptions, and under such Regulations as the Congress shall make.
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
1. 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 ofTreason unless on the Testimony of two wit-
nesses to the same overt Act, or on Confession in open Court.
2. The Congress shall have Power to declare the Punishment ofTreason,
but no Attainder ofTreason shall work Corruption of Blood, or Forfeiture
except during the Life of the Person attainted.
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221
220 –21,
413–14
224 –25
224 –25
196
224 –26
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537
9. This paragraph has been superseded by the Thirteenth Amendment.
article iv
section 1
Full Faith and Credit shall be given in each State to the public Acts, Records,
and judicial Proceedings of every other State. And the Congress may by gen-
eral Laws prescribe the Manner in which such Acts, Records and Proceedings
shall be proved, and the Effect thereof.
section 2
1. The Citizens of each State shall be entitled to all Privileges and Immuni-
ties of Citizens in the several States.
2. A Person charged in any State with Treason, Felony, or other Crime,
who shall flee from Justice, and be found in another State, shall on Demand
of the executive Authority of the State from which he fled, be delivered up, to
be removed to the State having Jurisdiction of the Crime.
3. [No Person held to Service or Labor in one State, under the Laws
thereof, escaping into another, shall, in consequence of any Law or Regula-
tion therein, be discharged from such Service or Labor, but shall be delivered
up on Claim of the Party to whom such Service or Labor may be due.] 9
section 3
1. New States may be admitted by the Congress into this Union; but no
new State shall be formed or erected within the Jurisdiction of any other
State; nor any State be formed by the Junction of two or more States, or Parts
of States, without the Consent of the Legislatures of the States concerned, as
well as of the Congress.
2. The Congress shall have Power to dispose of and make all needful Rules
and Regulations respecting the Territory or other Property belonging to the
United States; and nothing in this Constitution shall be so construed as to
Prejudice any Claims of the United States, or of any particular State.
section 4
The United States shall guarantee to every State in this Union a Republican
Form of Government, and shall protect each of them against Invasion; and
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452–54
198, 228,
261, 454 –57
228 –29
228 –29
134 –35,
158 – 61, 198,
235–37
134 –35, 236
Appendixes
538
10. Obsolete.
on Application of the Legislature, or of the Executive (when the Legislature
cannot be convened), against domestic Violence.
article v
The Congress, whenever two thirds ofboth Houses shall deem it necessary,
shall propose Amendments to this Constitution, or, on the Application of
the Legislatures of two thirds of the several States, shall call a Convention for
proposing Amendments, which, in either Case, shall be valid to all Intents
and Purposes, as Part of this Constitution, when ratified by the Legislatures
of three fourths of the several States, or by Conventions in three fourths
thereof, as the one or the other Mode of Ratification may be proposed by
the Congress; provided [that no Amendment which may be made prior to the
Year One thousand eight hundred and eight shall in any Manner affect the
first and fourth Clauses in the Ninth Section of the first Article; and]10 that
no State, without its Consent, shall be deprived of its equal Suffrage in the
Senate.
article vi
1. All Debts contracted and Engagements entered into, before the Adop-
tion of this Constitution, shall be as valid against the United States under this
Constitution, as under the Confederation.
2. This Constitution, and the Laws of the United States which shall be
made in Pursuance thereof; and all Treaties made, or which shall be made,
under the Authority of the United States, shall be the supreme Law of the
Land; and the Judges in every State shall be bound thereby, any Thing in the
Constitution or Laws of any State to the Contrary notwithstanding.
3. The Senators and Representatives before mentioned, and the Members
of the several State Legislatures, and all executive and judicial Officers, both
of the United States and of the several States, shall be bound by Oath or
Affirmation to support this Constitution; but no religious Test shall ever be
required as a Qualification to any Office or public Trust under the United
States.
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196 –98
203– 4,
228 –29
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article vii
The Ratification of the Conventions of nine States, shall be sufficient for the
Establishment of this Constitution between the States so ratifying the Same.
Done in Convention by the Unanimous Consent of the States present the
Seventeenth Day of September in the Year of our Lord one thousand seven
hundred and Eighty seven and of the Independence of the United States of
America the Twelfth. In witness whereof We have hereunto subscribed our
Names, George Washington, President and deputy from Virginia.
 John Langdon,
New Hampshire 
 Nicholas Gilman.
 Nathaniel Gorham,
Massachusetts

 Rufus King.
 William Samuel Johnson,
Connecticut

 Roger Sherman.
New York
Alexander Hamilton.
 William Livingston,
 David Brearley,
New Jersey

 William Paterson,
 Jonathan Dayton.
 Benjamin Franklin,


Thomas Mifflin,

Robert Morris,
Pennsylvania

George Clymer,
 Thomas FitzSimons,
 Jared Ingersoll,
 James Wilson,
 Gouverneur Morris.
 George Read,
 Gunning Bedford Jr.,
Delaware
 John Dickinson,
 Richard Bassett,
 Jacob Broom.
 James McHenry,
Maryland
 Daniel of St. Thomas Jenifer,
 Daniel Carroll.
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540
 John Blair,
Virginia

 James Madison Jr.
 William Blount,
North Carolina
 Richard Dobbs Spaight,
 Hugh Williamson.
 John Rutledge,
 Charles Cotesworth Pinckney,
South Carolina

 Charles Pinckney,
 Pierce Butler.
 William Few,
Georgia

 Abraham Baldwin.
[The language of the original Constitution, not including the Amend-
ments, was adopted by a convention of the states on September 17, 1787, and
was subsequently ratified by the states on the following dates: Delaware, De-
cember 7, 1787; Pennsylvania, December 12, 1787; New Jersey, December 18,
1787; Georgia, January 2, 1788; Connecticut, January 9, 1788; Massachusetts,
February 6, 1788; Maryland, April 28, 1788; South Carolina, May 23, 1788; New
Hampshire, June 21, 1788.
Ratification was completed on June 21, 1788.
The Constitution subsequently was ratified by Virginia, June 25, 1788;
New York, July 26, 1788; North Carolina, November 21, 1789; Rhode Island,
May 29, 1790; and Vermont, January 10, 1791.]
the amendments
(First ten amendments ratified December 15, 1791.)
Amendment I
Congress shall make no law respecting an establishment of religion, or pro-
hibiting the free exercise thereof; or abridging the freedom of speech, or of
the press; or the right of the people peaceably to assemble, and to petition the
Government for a redress of grievances.
Amendment II
A well regulated Militia, being necessary to the security of a free State, the
right of the people to keep and bear Arms, shall not be infringed.
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Amendment III
No Soldier shall, in time ofpeace 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.
Amendment IV
The right ofthe 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 per-
sons or things to be seized.
Amendment V
No person shall be held to answer for a capital, or otherwise infamous crime,
unless on a presentment or indictment of a Grand Jury, except in cases aris-
ing in the land or naval forces, or in the Militia, when in actual service in time
of War of public danger; nor shall any person be subject for the same offence
to be twice put in jeopardy oflife or limb; nor shall be compelled in any crim-
inal case to be a witness against himself, nor be deprived of life, liberty, or
property, without due process oflaw; nor shall property be taken for public
use, without just compensation.
Amendment VI
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 ascer-
tained by law, and to be informed of the nature and cause of the accusation;
to be confronted with the witness against him; to have compulsory process
for obtaining witnesses in his favor, and to have the Assistance of Counsel for
his defense.
Amendment VII
In Suits at common law, where the value in controversy shall exceed twenty
dollars, the right of trial by jury shall be preserved, and no fact tried by a jury,
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shall be otherwise re-examined in any Court of the United States, than ac-
cording to the rules of the common law.
Amendment VIII
Excessive bail shall not be required, nor excessive fines imposed, nor cruel
and unusual punishments inflicted.
Amendment IX
The enumeration in the Constitution, of certain rights, shall not be con-
strued to deny or disparage others retained by the people.
Amendment X
The powers not delegated to the United States by the Constitution, nor pro-
hibited by it to the States, are reserved to the States respectively, or to the
people.
Amendment XI (Ratified February 7, 1795)
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.
Amendment XII (Ratified June 15, 1804)
The Electors shall meet in their respective states and vote by ballot for Presi-
dent and Vice-President, one of whom, at least, shall not be an inhabitant of
the same state with themselves; they shall name in their ballots the person
voted for as President, and in distinct ballots the person 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
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11. The part in brackets has been superseded by section 3 of the Twentieth Amendment.
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 Rep-
resentatives shall choose immediately, by ballot, the President. But in choos-
ing 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 mem-
ber 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, be-
fore 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—]11 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 ofElectors 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 ofVice-President of the United States.
Amendment XIII (Ratified December 6, 1865)
section 1
Neither slavery nor involuntary servitude, except as a punishment for crime
whereof the party shall have been duly convicted, shall exist within the
United States, or any place subject to their jurisdiction.
section 2
Congress shall have power to enforce this article by appropriate legislation.
Amendment XIV (Ratified July 9, 1868)
section 1
All persons born or naturalized in the United States and subject to the juris-
diction thereof, are citizens of the United States and of the State wherein they
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12. See the Twenty-sixth Amendment.
reside. No State shall make or enforce any law which shall abridge the privi-
leges or immunities of citizens of the United States; nor shall any State de-
prive any person oflife, liberty, or property, without due process oflaw; nor
deny to any person within its jurisdiction the equal protection of the laws.
section 2
Representatives shall be apportioned among the several States according to
their respective numbers, counting the whole number of persons in each
State, excluding Indians not taxed. But when the right to vote at any election
for the choice of electors for President and Vice President of the United
States, Representatives in Congress, the Executive and Judicial officers of a
State, or the members of the Legislature thereof, is denied to any of the male
inhabitants of such State, being twenty-one years of age,12 and citizens of the
United States, or in any way abridged, except for participation in rebellion,
or other crime, the basis ofrepresentation therein shall be reduced in the
proportion which the number of such male citizens shall bear to the whole
number of male citizens twenty-one years of age in such State.
section 3
No person shall be a Senator or Representative in Congress, or elector of
President and Vice President, or hold any office, civil or military, under the
United States, or under any State, who, having previously taken an oath, as
a member of Congress, or as an officer of the United States, or as a member
of any State legislature, or as an executive or judicial officer of any State, to
support the Constitution of the United States, shall have engaged in insurrec-
tion or rebellion against the same, or given aid or comfort to the enemies
thereof. But Congress may by a vote of two-thirds of each House, remove
such disability.
section 4
The validity of the public debt of the United States, authorized by law, in-
cluding debts incurred for payment of pensions and bounties for services
in suppressing insurrection or rebellion, shall not be questioned. But neither
the United States nor any State shall assume or pay any debt or obligation
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incurred in aid ofinsurrection or rebellion against the United States, or
any claim for the loss or emancipation of any slave; but all such debts, obli-
gations and claims shall be held illegal and void.
section 5
The Congress shall have power to enforce, by appropriate legislation, the pro-
visions of this article.
Amendment XV (Ratified February 3, 1870)
section 1
The right of citizens of the United States to vote shall not be denied or
abridged by the United States or by any State on account of race, color, or
previous condition of servitude.
section 2
The Congress shall have power to enforce this article by appropriate
legislation.
Amendment XVI (Ratified February 3, 1913)
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.
Amendment XVII (Ratified April 8, 1913)
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 exec-
utive thereof to make temporary appointments until the people fill the va-
cancies by election as the legislature may direct.
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13. This Amendment was repealed by section 1 of the Twenty-first Amendment.
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.
Amendment XVIII (Ratified January 16, 1919)
section 1
After one year from the ratification of this article the manufacture, sale, or
transportation of intoxicating liquors within, the importation thereof into, or
the exportation thereof from the United States and all territory subject to the
jurisdiction thereof for beverage purposes is hereby prohibited.
section 2
The Congress and the several States shall have concurrent power to enforce
this article by appropriate legislation.
section 3
This article shall be inoperative unless it shall have been ratified as an amend-
ment to the Constitution by the legislature of the several States, as provided
in the Constitution, within seven years from the date of the submission
hereof to the States by the Congress.13
Amendment XIX (Ratified August 18, 1920)
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.
Amendment XX (Ratified January 23, 1933)
section 1
The terms ofthe President and Vice President shall end at noon on the
20th day ofJanuary, and the terms of Senators and Representatives at noon
on the 3d day ofJanuary, of the years in which such terms would have ended
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14. See the Twenty-fifth Amendment.
ifthis article had not been ratified; and the terms oftheir successors shall
then begin.
section 2
The Congress shall assemble at least once in every year, and such meeting
shall begin at noon on the 3d day ofJanuary, unless they shall by law appoint
a different day.
section 3 14
If, at the time fixed for the beginning of the term of the President, the Presi-
dent elect shall have died, the Vice President elect shall become President. If
a President shall not have been chosen before the time fixed for the beginning
ofhis term, or if the President elect shall have failed to qualify, then the Vice
President elect shall act as President until a President shall have qualified; and
the Congress may by law provide for the case wherein neither a President
elect nor a Vice President elect shall have qualified, declaring who shall then
act as President, or the manner in which one who is to act shall be selected,
and such person shall act accordingly until a President or Vice President shall
have qualified.
section 4
The Congress may by law provide for the case of the death of any of the per-
sons from whom the House of Representatives may choose a President
whenever the right of choice shall have devolved upon them, and for the case
of the death of any of the persons from whom the Senate may choose a Vice
President whenever the right of choice shall have devolved upon them.
section 5
Sections 1 and 2 shall take effect on the 15th day of October following the
ratification of this article.
section 6
This article shall be inoperative unless it shall have been ratified as an amend-
ment to the Constitution by the legislatures of three-fourths of the several
States within seven years from the date of its submission.
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Amendment XXI (Ratified December 5, 1933)
section 1
The eighteenth article of amendment to the Constitution of the United States
is hereby repealed.
section 2
The transportation or importation into any State, Territory or possession of
the United States for delivery or use therein of intoxicating liquors, in viola-
tion of the laws thereof, is hereby prohibited.
section 3
This article shall be inoperative unless it shall have been ratified as an amend-
ment to the Constitution by conventions in the several States, as provided in
the Constitution, within seven years from the date of the submission hereof
to the States by the Congress.
Amendment XXII (Ratified February 27, 1951)
section 1
No person shall be elected to the office of the President more than twice, and
no person who has held the office of President, or acted as President, for
more than two years of a term to which some other person was elected Presi-
dent shall be elected to the office of the President more than once. But this
Article shall not apply to any person holding the office of President when this
Article was proposed by the Congress, and shall not prevent any person who
may be holding the office of President, or acting as President, during the term
within which this Article become operative from holding the office of Presi-
dent or acting as President during the remainder of such term.
section 2
This Article shall be inoperative unless it shall have been ratified as an amend-
ment to the Constitution by the legislatures of three-fourths of the several
States within seven years from the date of its submission to the States by the
Congress.
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Amendment XXIII (Ratified March 29, 1961)
section 1
The District constituting the seat of Government of the United States shall
appoint in such manner as the Congress may direct:
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 ifit 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.
section 2
The Congress shall have power to enforce this article by appropriate
legislation.
Amendment XXIV (Ratified January 23, 1964)
section 1
The right ofcitizens ofthe United States to vote in any primary or other
election for President or Vice President, for electors for President or Vice
President, or for Senator or Representative in Congress, shall not be denied
or abridged by the United States or any State by reason of failure to pay any
poll tax or other tax.
section 2
The Congress shall have power to enforce this article by appropriate
legislation.
Amendment XXV (Ratified February 10, 1967)
section 1
In case of the removal of the President from office or of his death or resigna-
tion, the Vice President shall become President.
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section 2
Whenever there is a vacancy in the office of the Vice President, the President
shall nominate a Vice President who shall take office upon confirmation by a
majority vote ofboth Houses of Congress.
section 3
Whenever the President transmits to the President pro tempore of the Sen-
ate and the Speaker of the House of Representatives his written declaration
that he is unable to discharge the powers and duties ofhis office, and until he
transmits to them a written declaration to the contrary, such powers and du-
ties shall be discharged by the Vice President as Acting President.
section 4
Whenever the Vice President and a majority of either the principal officers of
the executive departments or ofsuch other body as Congress may by law
provide, transmit to the President pro tempore of the Senate and the Speaker
ofthe House of Representatives their written declaration that the President
is unable to discharge the powers and duties ofhis office, the Vice Presi-
dent shall immediately assume the powers and duties of the office as Acting
President.
Thereafter, when the President transmits to the President pro tempore of
the Senate and the Speaker of the House of Representatives his written dec-
laration that no inability exists, he shall resume the powers and duties ofhis
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 Sen-
ate and the Speaker of the House of Representatives their written declaration
that the President is unable to discharge the powers and duties ofhis 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, de-
termines by two-thirds vote ofboth houses that the President is unable to
discharge the powers and duties ofhis office, the Vice President shall con-
tinue to discharge the same as Acting President; otherwise, the President shall
resume the powers and duties ofhis office.
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Amendment XXVI (Ratified June 30, 1971)
section 1
The right of citizens of the United States, who are eighteen years of age or
older, to vote shall not be denied or abridged by the United States or by any
State on account of age.
section 2
The Congress shall have power to enforce this article by appropriate
legislation.
Amendment XXVII (Ratified May 7, 1992)
No law, varying the compensation for the services of the Senators and Rep-
resentatives, shall take effect, until an election of Representatives shall have
intervened.
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Index
553
Achaean league, 75, 87–89, 186, 239, 364
Achaeus, 186
Achaia (Achaea), 89
Adjournment, president’s power to ad-
journ Congress, 357
Admiralty. See Judiciary
Admission of new states to Union, 224
Aetolians (Etolians), 89
Agriculture, 50, 55, 59, 81, 103, 165, 174, 214,
312
Albany (N.Y.), 299, 316
Alcohol, taxation on import of, 59
Alexander, 88
Aliens, rights of, 220 –21, 227
Alliances. See Confederacies; Treaties
Amadaeus, Victor, of Savoy, 94
Ambassadors
appointment of, 360, 391
government’s power to send and re-
ceive, 215, 359
status abroad under Articles of Con-
federation, 69-70
Supreme Court jurisdiction over, 422
Amendment
of Articles of Confederation, 188,
200 –202, 228 –30
of Constitution, 199, 228, 261, 455–57
American Revolution, 6, 66 –67, 105–6,
115, 120, 125, 128, 145, 165, 185, 235, 247,
290, 441
Amphyctionic confederacy, 84 –88, 186,
225
Anarchy, 108, 127, 271, 342, 362, 457
as fate of petty republics, 37
tendency of confederacies to, 75–80,
89, 90, 98
Annapolis Convention, 200, 204
Anne, Queen, 17
Anti-Federalists, views of, 189–93
Apollo, 86
Appellate jurisdiction. See Supreme
Court
Appointment, president’s power of, 190,
290, 337, 345, 360, 391–99
Apportionment, 30, 282–86
Appropriations, 131, 210 –11
Arragon (Aragon), king of, 24n
Aratus, 87, 186
Archons, 329
Aristocracy, 83, 190, 194, 225, 329, 343, 373,
399
Army
power of president to command, 357,
374, 384 –85
raising of, 105–6, 112–32, 145, 208 –9,
242
standing, 32–36, 75–80, 117– 45, 208 –
13, 247
Articles of Confederation, 4, 6 –7, 125–26
amendment of, 188, 200 –202, 228 –30
compared with Constitution, 202–3,
214 –15, 218 –21, 224, 230 –36, 242,
285–86, 390 –91, 449–50
deficiencies of, 68 –75, 99–112, 113–14,
116, 146 – 48, 179–81, 187–88, 191–
93, 200 –202, 218, 219–20, 229, 401
great and radical vice in, 71
obligation of debts, 228
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Articles of Confederation (continued)
powers of Congress, 208, 214 –16, 391
requisitions, 114, 146 – 47, 191
and standing armies, 119, 123–24
and territorial disputes, 26 –28
Aspasia, 21n
Assemblies, popular, 74
often dominated by passions, 23, 322
on proper size of, 47– 48, 286 –89,
304 –5
size of and capacity to deliberate, 288,
304
size of and oligarchic control, 288,
304 –5
tendency of to dominate, 256 –59,
327–28, 331–32, 343– 44, 371–73
Athens, 23, 85–86, 88, 126, 186 –87, 288,
327, 329
Attainder, bills of. See Bills of attainder
Aulic council, 91
Austria, 24, 90, 97
Bankruptcy, uniform laws of, 218, 221
Bashaws, tax practices in Ottoman Em-
pire, 146
Bavaria, duke of, 93
Belgic confederacy, 96
Biennial elections, 273–75
Bill of rights
American, 192, 442–51
English, 133, 445– 47
Bills of attainder, 232, 403, 443
Bills of credit (paper money), 191, 230 –32
Blackstone, Sir William, 357n, 359n, 444
Bourbon, conflict with House of Austria,
24
British constitution, 210 –11, 250, 274, 276,
277–78, 294, 303, 368, 417–18
Brutus, 186
Caesar, 101
Callicrates, 89
Cambray, League of, 24n
Cambridge (N.Y.), 316
Canada, admission as state, 224
Canals, 65
Cantons. See under Switzerland
Capital, national, 447– 48
Carthage, 24, 328, 329, 331
Catholics, 95
Cato, 349n
Census, 286, 288 –89, 301
Chancery courts, 435, 435n, 438
Charlemagne, 90
Charles I, 357n, 445
Charles II, 128, 274, 357n
Charles V, 22
Charles VII, 209, 210
Checks and balances. See Constitution:
principles of (separation of powers);
States: separation of powers
Chesterfield, earl of, 110
Chief justice
and trial of impeachment, 411
China, 14
Christianity, 90
Citizenship, 220 –21
Civil cases, 430
Civil law, 424, 435
Civil liberty, 37–38, 42– 43
Classes, 59, 169–70, 210, 270 –71, 295–96
and representatives, 170 –71. See also
Interests
Cleomenes, 88
Coercion, 72–73, 99
Colonial legislatures, 274 –76
Comita centuriata, 162–63
Comita tributa, 162–63
Comity clause, 220 –21, 413–14
Commentaries on the Laws of England
(Blackstone), 357n, 359n, 444n
Commerce, 49–55, 55–56, 69, 80, 109, 114,
121, 164, 213, 279, 292, 312
effects of disunion on, 58, 62
need for national regulation of,
218 –19
and war, 13–14, 23–24
Commerce clause, 217, 218 –19, 242, 292
Common law, 183, 217, 222, 424 –25, 435,
439, 443
Index
554
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Compacts, 71–72, 99–100, 112, 198, 229–
30, 232
Compromise, 184, 284 –85, 320, 454 –58
Confederacies
danger of states forming, 17–20, 26,
31–36, 57–58, 60 –62, 137
character of confederate republics,
39– 41
and feudal systems, 82–84
of ancient Greece, 84 –89, 239
of Germanic and Swiss, 90 –95
of the United Provinces, 95–99
principles of in the proposed consti-
tution, 196 –99
Confederation. See Articles of Confedera-
tion
Congress, 127–31, 145– 46, 173–75, 222–26,
262–63, 268 –69, 272, 315–18, 402– 4,
432, 450, 457
powers of, 112–13, 117–18, 140 – 45,
145– 46, 158 –60, 207–15, 215–22,
232–37, 292–93, 305–15, 417–25
Connecticut, 28, 29, 31, 101, 102, 106, 253,
277, 300, 436, 441
Constitution, 41, 65
advantages of, 454 –55
amendment of, 199, 228 –29, 261,
455–57
as a bill of rights, 443– 44, 446 – 47
as bundle of compromises, 184 –85,
284 –85, 320, 383
compared with
Articles ofConfederation,
202–3
constitution ofNew York, 452
ordinary statutes, 403–5, 417–18
state constitutions, 195–96
as “fundamental law,” 277–78, 403–5,
417–18
influence of God on, 185
interpretation of, 431–32
people as final interpreters, 261
legitimacy of, 199–206
as mere parchment, 126, 255, 260,
264, 380
objections to, 2–3, 5–6, 38, 62–67,
71, 77–78, 99–100, 111–12, 116, 134 –
37, 141– 42, 143– 44, 152, 158 –59,
179–81, 189–93, 196, 201, 207, 210 –
11, 213–14, 228, 233, 237–38, 243,
247– 48, 287, 295, 304 –5, 306, 311–
12, 329–30, 335–36, 347–51, 362–
63, 393, 405–6, 417, 442– 43, 448 –
49, 452, 457–58
objectives of, 98 –9, 112–13, 228
obstacles to ratification, 1–3, 181–82
principles of, 203
democracy, 45– 48, 112, 194 –97,
405–6
federalism, 41, 99–100, 196 –99,
239–72. See also Reserved
powers
legislative balances and checks,
52, 387–89, 393–96
limited government, 386, 403,
418 –19. See also Separation of
powers
republican government, guaran-
tee of, 196, 25–26, 452–53
republicanism, 4, 25–26, 37– 41,
45– 49, 63, 66 –67, 106 –7,
109–10, 169–72, 181, 194 –96,
261, 270 –72, 290 –91, 295–96,
362–63, 405–6, 444, 452–53
separation of powers, 38, 249–
55, 267–72, 342– 44, 371, 379–
84, 387–90, 402–8, 418 –19
sovereignty, national and state,
41, 70, 73, 114, 152–53, 154 –55,
157, 203, 220, 238, 320, 423,
426 –27. See also Sovereignty
provisions of, 526 –39
ratification of, 197, 229
reasons to support, 452–58
state, 4, 42, 100, 117, 118n, 129, 195, 232,
235–36, 252–55, 256 –60, 262, 270,
273, 277, 287–88, 298 –300, 301,
316 –18, 330 –31, 339, 355, 363, 384 –
85, 401, 408, 420, 433– 42. See also
individual states by name
Index
555
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Contracts, impairment of, 31, 232
Convention, constitutional (federal)
delegates to, 7
difficulties confronting, 181–85
factors precipitating, 7, 8 –9
legitimacy of, 199–206
second convention, improbability of,
455
Conventions, constitutional (state), 205
Copyrights, 222
Cosmi, 329
Council of appointment (N.Y.), 398
Council of Censors (Pa.), 259, 264 –67
Council ofRevision (N.Y.), 356, 383–84
Counterfeiting, 220
Courts. See Judiciary
Credit, private, 70
Credit, public, 30, 69, 1148 – 49, 453. See
also Bills of Credit
Creditors, 44. See also Factions
Crete, 186
Cromwell, Oliver, 101
Debtors, 22, 44. See also Factions
Debts, 48, 69, 144, 147– 48, 164 –66, 192,
213, 228, 448 – 49
Declaration ofIndependence, 205n
Declaration ofRights (1688). See Bill of
Rights: English
Defense, national, 9–10, 14 –15, 32–34, 66,
112–32, 140 – 41, 163–64, 208 –15, 241,
388
Delaware, 106, 108, 118n, 195, 254, 287–88,
356, 419, 435
Deliberation, provisions for, 288, 304,
326 –27, 333, 369–70, 380 –81
obstacles to in ratification debate,
1– 4, 7–8
Delphos, temple of, 85
Democracy
definition and character of“pure”
democracy, 46, 257, 304 –5
compared with republics, 46 – 49,
63–64, 328 –29. See also Constitu-
tion, principles of
Demosthenes, 85
Diets, German and Polish, 64 –65, 91, 108,
390
District of Columbia, 222–23
Disunion, danger of, 52, 54 –55, 61–62,
66 –67, 76 –77, 131–32, 209, 453
Doge of Genoa, 12
Donawerth (Donauwörth), 93
Draco (Dracon), 186
Dutch. See United Provinces
Ecclesiastical law, 183
Economy, U.S. See Agriculture; Commerce
Egypt, 88
Elections
differences between in small and
large republics, 62–63
frequency of, 195, 273–81
of representatives by the people, 47,
171, 195, 295–98
of senators by state legislature, 133,
195
times, places, and manners, 305–18.
See also Electors; Electoral College
Electors
the people, 296 –97
presidential, 332–33, 351–54
qualifications of, 272–73
Electoral College, 195, 333, 352–54
Energy
importance of for good government,
3, 51–52, 70, 108, 126 –27, 178, 179–
82
in the executive, 362– 400
England. See Great Britain
Ephori, 329, 331
Equality
economic (property), 44
political, 46
of opportunity, 173
Equity (law), 184, 415, 435–38
Europe, 31, 32, 36, 49, 50, 51, 53, 56, 57, 63–
64, 71, 83, 120, 129, 164, 209–12, 217, 239,
247– 48, 309, 437. See also individual
countries by name
Index
556
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Excises (taxes), 56, 102–3, 155–56, 168 –69,
174 –76, 213. See also Taxes
Executive. See Plural executive; President
Experience, 127, 148, 179–80, 228, 273–74,
281, 290, 301, 316, 317, 330, 457
lessons of, 7, 123, 152, 182–83, 187, 218,
242, 243– 44, 256, 258, 269, 294 –95,
395
as oracle of truth, 99
as oracle of wisdom, 73
as parent of wisdom, 376
Export duties, 155–56, 161, 189, 213, 218,
232–33
Ex post facto laws, 232, 403, 443– 44
Factions, 37–38, 63, 73, 79, 100, 133, 145,
185, 224, 238, 271, 317, 338, 341, 362, 365,
370, 381, 453
causes of, 43– 44
control of, 42– 49
defined, 43. See also Majorities; Mi-
norities; Parties, political
Farmers, 324
Federal Farmer, 352n
Federalism. See Constitution, principles of
Feudalism, 82–84, 90 –95, 239
Fisheries, 13–14, 52
Flanders, 62
Force, as an instrument of authority, 75–
80, 99–100, 132–39, 140 – 41
Foreign affairs, 9–20, 113, 374
power to regulate, 215–18, 280
See also Treaties
Forts, national, 222–23
Fox, Charles James, 373n
Framers, character of, 7
France, 12, 13, 22, 24, 52, 57–58, 58 –59, 65,
95, 101, 110, 120, 144, 164, 209
Franchise, See Suffrage
Franks, 90
Freedom of press. See Press, freedom of
Full faith and credit clause, 221
Gaul, 90
General welfare clause, 114, 213–14, 242
Genoa, 12
George II, 274
Georgia, 39, 66, 107n, 122, 144, 255, 287,
419, 435. See also Constitutions, state
Germany, 56, 64, 95–99, 101, 105, 219, 225,
413
Glorious Revolution, 128
God, 183–85
Government
energetic, need for, 3, 108, 116, 126, 181
forms of, 45– 46, 196 –99, 271–72, 354
limited, 37–38, 321, 327, 362–63, 385–
86, 402–3, 417–19, 444 – 45
objects of, 137–38, 151–52, 164 –65,
181, 271–72, 285, 306, 325–26
origin of, 196, 268
principles of good, 132–37, 236, 295–
96, 322–23, 354, 363, 371, 392, 442
right to alter or abolish, 199, 205,
405–6
weaknesses of, 86, 97–98, 108, 115,
126, 193, 323, 362–63, 370, 390 –91.
See also Constitution, principles
of; Democracy
Governors
election in New York, 355
power to fill Senate vacancies, 349–51
powers compared with president’s,
358 –61
terms of office in New York, Dela-
ware, and South Carolina, 195–96.
See also States
Grand Signior, 355
Great Britain, 10, 12, 13, 15, 17–18, 22, 24 –
25, 27, 50, 56 –57, 58, 60, 97, 105, 118, 120 –
21, 122, 124, 128, 164, 210, 212, 222, 246
Bill of rights, 128, 443, 445, 446n, 447
constitution of, 210 –11, 250, 274, 277–
78, 294, 303, 368, 417–18
impeachment, provision for, 339,
356 –58, 368
judiciary of, 408, 418, 435, 441– 42
king of, 165, 251, 348, 355–62, 368, 382
legal system of, 183, 217, 222, 435, 437–
38
Index
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Great Britain (continued)
Parliament of, 104, 128, 211, 250, 274 –
76, 277–78, 294 –95, 299, 303, 331,
339, 356, 357n, 358 –59, 373, 373n,
382, 385, 417–19
republican character of, 194
standing armies, absence of, 35, 209–
11
trial by jury, 441– 42
Greece, 16, 21–22, 34, 37, 63, 84 –89, 225, 329
Grotius, Hugo, 96 –97, 449n
Habeas corpus, 443– 44
Hannibal, 24
Hanover, treaty of, 97
Henry VIII, 22
Holland, 24, 97, 194, 225. See also United
Provinces
Homer, 250
House of Commons, 25, 211, 274, 294, 299,
303, 339, 373. See also Great Britain: Par-
liament
House ofLords, 331, 339, 417–18. See also
Great Britain: Parliament
House ofRepresentatives
composition of, 272–34, 450 –51
election, 195, 237, 240, 272–81, 295–
96, 308 –18
powers, 197, 302–3, 332, 344 – 45, 354,
387–88, 389–90, 399, 409–10
size, 286 –95, 300 –305
term of office, 273–74
See also Congress; Constitution, U.S.
Human nature
ambition, 21, 164, 268 –69, 388 –89
animosity, 13, 44, 164, 218 –19
avarice, 55, 219, 388 –89
bias, 151, 340
capriciousness, 298
depravity, 185, 291, 407
diversity of faculties, 43– 44
enterprise, 55–56
equality, desire of, 21
fallibility, 180
frailty, 119, 365
glory, love of, 23
government, renders necessary, 73,
238 –69
gratitude, 296
honor, 395
imperfect, 183
ingratitude, 296
liberty, spirit of, 297
local attachment, 81, 123
man’s capacity for self-government,
289–91, 395
obstinacy, 364
passions, 43– 44, 73, 76, 179–80, 219,
260, 264, 266, 322, 327, 365
power, love of, 21, 23, 73–74, 123, 370,
378, 381
pride, 12, 347, 365
rapaciousness, 21
reason, 43, 219, 260, 264, 266, 288,
304, 327
self–government, capacity for, 1
self-interest, 43, 98, 219, 365
venality, 395
vice, 395
vindictive, 21
virtue, 291, 347, 370 –71, 395
wealth, love of, 23
wickedness, 298, 407
Hume, David, 457n
Impeachment, 190, 356 –58, 385, 400, 409–
10, 443
defense of Senate as trial court,
337– 47
as a restraint on judiciary, 420
Import duties, 57–59, 102–3, 147, 155–56,
161, 167–69, 174 –77, 213, 218, 232–33
Imposts. See Import duties
India, 14
India bill, 373
Indians
commerce with, 219
wars with, 11–12, 120, 122, 124
Index
558
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8
Instability, political, 321–24. See also Anar-
chy; Factions
Insurrections, 79–80, 131–32, 136 –37, 144 –
45, 226 –27, 386, 453. See also Anarchy;
Instability; Rebellion
Interests
as check on power, 267–68, 374
difficulty of resolving, 60, 224 –25
influence of immediate interest, 10,
25, 45, 77, 176
influence of partial interests, 4 –6, 10,
20 –21, 45, 84 –85, 185–86
multiplicity as barrier to factions
rule, 63–64, 327–28
representation of, 206 –10, 376 –79
source of faction, 58
variety of, 59, 73
Interposition, 78 –79, 226, 245–56, 305
Interstate commerce. See Commerce
Inventions, patent protection under the
Constitution, 222
Ireland, 15, 274, 276
Isolation, advantages of, 31, 209–10
Italy, 24, 37, 63
James II, 128
Japan, 428
Jefferson, Thomas, 258, 260 –61
Jenkinson, Charles (Lord Hawkesbury),
104 –5
John, King, 445
Judicial review, 403–6, 428 –29
Judiciary
appointment and tenure, 401–2
impeachment and removal, 409–10
independence, 406 –7
jurisdiction and powers, 402–3, 411–
16, 423–29
objections to, 417–18
power of Congress to regulate, 416,
420, 425
salary, 408 –9
tenure, 401–2. See also Supreme Court
Junius, 368
Jury, trial by, 340, 424 – 42, 443
Justice
on administration ofby states, 80 –
81, 82
as holding balance between contend-
ing interests, 44
as the end of government, 271
Kentucky, 144
Khan ofTartary, 355
King. See Monarchy; individual monarchs
by name
King’s County (N.Y.), 102
Lacedemonians, 85–87, 126
Lake Champlain, 144
Lake Erie, 64
Land taxes, 59, 160, 166, 170 –71, 174 –76
Landed interest, 170, 312–13
Large states
equality with small states in Senate,
184, 285–86, 320 –21
on potential conflict with small
states, 301–3
problems in confederacies, 34, 77–78
Law of nations, 10, 215–17, 280, 335, 412,
437
Law of nature, 229
Laws (U.S.)
bankruptcy, 218, 221
Constitution as supreme law, 152–53,
158 –61
enforcement of, 99–104, 132–39, 141
extension to individuals, 71–84, 114 –
35, 198
judicial interpretation of, 403–8,
417–19, 431
uniformity of, 412. See also Mutable
government
Lee, Richard Henry (Federal Farmer),
352n
Legislation. See Laws (U.S.)
Legislatures
checks on, 268 –69
Index
559
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Legislatures (continued)
closeness to people, 263
powers of, 34, 257
state, 130
tendency to usurp power, 257–59,
263–64, 269, 371–72, 380
unicameral, 111
Letters from the Federal Farmer, 352n
Leuctra, 85
Liberty, 3, 37–38, 81, 91, 190, 192, 289, 315,
317, 452–53
abuses of, 330
and constitutional rights, 444 – 45
not endangered by independent judi-
ciary, 402–3
and equal application of the laws, 297
and frequent elections, 273, 276 –78
mutable policy poisons, 323–24
need to combine with energy and
stability, 181–82
and presidential re-eligibility, 378
of the press, 445– 46
and the separation of powers, 249–
52, 268
as source of faction, 43, 238
and standing armies, 127–29, 130 –31
states as guardians of, 137–38, 245–
48, 270, 289, 448
threats to, 289–91
and trial by jury, 432–33, 441– 42
Liquor. See Alcohol
Locrians (Zaleucus), 186
Lome (Lolme), Jean Louis de, English
Constitution, 368n
Louis XIV, 12, 24
Lycian confederacy, 41, 75, 239
Lycurgus, 87, 187, 191
Lysander, 126
Mably, L’Abbé de, 26n, 88, 98
Macedon, 85–89, 225
Magna Carta, 274, 445
Maine, 122
Maintenon, Madame de, 22n
Majorities
control of, 270 –71
overbearing, 42, 48, 77, 270, 310 –11
under Articles of Confederation,
106 –9. See also Factions
Man, nature of, 43– 44. See also Human
nature
Man of the seven mountains, 355
Manufacturing, 44, 50, 55, 165, 167–72,
173–74, 213, 312, 324
Marlborough, duchess of, 22n
Marlborough, duke of, 24
Marque, letters of, 25, 230
Martin, Luther, 405n
Maryland, 28, 102, 107n, 118n, 195, 212, 254,
330 –31, 419, 435. See also Constitutions,
state
Massachusetts, 22, 25, 28, 39, 100, 101, 106,
118n, 125, 136, 144, 252, 287, 299, 300,
343n, 356, 358, 384, 408n, 419, 436, 439.
See also Constitutions, state
Maximilian, 413
Mechanics, 55, 170, 171
Megarensians (Magarensians), 21
Merchants, 55, 168, 170 –70, 172–73, 312,
324
Messene, 89
Militia, 15–19, 120 –21, 125, 136 –37, 140 –
45, 208 –9, 213, 247– 48, 279, 292–93,
357, 384. See also Army
Milot (Millot), Abbé, 86
Minorities
protecting rights of, 270 –72, 405
rule by, 305
under Articles of Confederation,
106 –9. See also Factions
Mississippi River, 14, 52, 64, 69
Monarchy, 34, 39, 189–90, 194, 225, 238,
333
judicial restraint on, 388
and standing armies, 128 –29, 209–10
treaty-making power, 388
trial by jury as restraint on, 432–33
and war, 6, 23, 24 –25, 165
Index
560
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Money
monied interest, 312
paper, 231–32
origin of money bills, 302
power to borrow, 208, 213
power to coin and regulate value of,
218, 220, 230 –32
Montesquieu, Charles, 38 – 41, 225, 227,
250 –52, 402n
Montgomery County (N.Y.), 102, 316
Mutable government
dangers of, 389–92
Natural rights, 5
Naturalization, 155, 218, 221
Nature, state of, 271. See also Law of nature
Navy
need for, 51–53, 121, 164, 212–13
presidential power over, 357–58,
384 –85
Necessary and proper clause, 141, 152, 158 –
60, 232–36
Nekar (Neker), Jacques, 58
Negroes. See Slaves
Netherlands. See United Provinces
Neutrality, 51
New England, 177n, 423
New Hampshire, 28, 101, 107n, 118n, 144,
252, 299, 300, 343n, 358, 419. See also
Constitutions, state
New Jersey, 28, 61, 62, 102, 107n, 188, 253,
343n, 363, 435. See also Constitutions,
state
New York, 29, 39, 61, 106, 107n, 122, 129,
137, 144, 168 –69, 195, 200, 203, 206, 212,
253, 287, 299, 300, 316, 343, 363, 423, 428,
440
governor of, 348, 355–61, 383–84, 398
judiciary of, 410, 435
laws and constitution of, 359–60,
363, 369, 383–84
Nobility, titles of. See Titles of nobility
Norman Conquest, 128
Northwest, 65
North Carolina, 25, 39, 102, 106, 118n, 127,
255, 419, 435
Notes on the State of Virginia, 258, 260
Numa Pompilios. 186
Oath to support constitution, 235–36
Obstacles to union, 1–2
Oligarchy, 295, 304 –5, 399
Orange, Prince of, 128, 445. See also United
Provinces
Order, political and social, 136 –37, 151,
163–64, 261–62, 322–23, 412–14
Ottoman Empire, 146
Pardoning power, 357–57, 385–86
Parliament. See Great Britain: Parliament
Parties, political, 263–64, 266 –67, 271–72,
338, 365, 386, 393. See also Factions
Party, spirit of, 130, 262, 267, 333, 349, 393
Patents, 222
Patricians, 162–63, 364
Patronage, corrupting influence of,
290 –91
Peloponnesian War, 22, 86, 136
Pennsylvania, 25, 28, 39, 61, 62, 102, 106,
118n, 125, 127, 129, 137, 254, 259, 265, 287–
88, 299, 300, 343n, 405n, 419, 435, 436.
See also Constitutions, state
People, American
character and intelligence of, 5, 9, 29,
49, 52, 57, 66 –67, 126 –29, 181, 194,
207–8, 247– 48, 262, 289, 297–98,
311, 325, 327, 370 –71
and constitution, 78 –79, 196 –97, 229,
264, 264 –67
and courts, 404 –6
and elections, 352–54
and president, 370 –71, 378
and representatives, 138, 273, 276,
282–86, 326 –32, 447– 48
prefer state and local government to
national, 81–83, 110 –11, 153, 241.
See also Constitution; principles of
(republicanism and democracy)
Index
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Pericles, 21, 21n
Persia, 85
Petition of right, 445
Pfeffel, Christian Fredrich, 93n
Phidias, 22
Philadelphia, 200, 299
Philip ofMacedon, 86, 89
Philopoemen, 87
Philosophers, 182
Procians, 86
Piracy, 202, 217
Plato, 262
Plebeians, 162–63, 364
Plural executive, 363–69
Plutarch, 85, 186
Poland, 64, 94, 108, 194, 390
Politics, science of
axioms of, 113, 150 –51, 235, 276, 288,
412
limitations of, 151–52, 182–83
new and improved principles of, 38
Poll tax, 176 –78
Polybius, 331
Pompadour, Madame de, 22n
Pope, Alexander, quoted, 354
Pope Julius II, 24
Portugal, 10
Posse comitatus, 141
Post office, 202, 218
roads, 218, 222
Potosi mines, 25
Power
abuse of, 207–8, 268 –69, 276, 307,
309, 321–22, 330, 368 –70
love of, 21, 23, 73, 80, 107, 123, 317, 378,
381
must be in proportion to ends, 113–
14, 115–16, 150 –52, 153, 207–8,
234 –35
Praetor, 87, 364
President
cabinet of, 449–50
compared with governor, 358 –61
compared with monarch, 348, 355–
62, 382
control of, 400
election of, 195, 197, 236 –37, 240, 311,
332–33, 351–55
energy in, 362– 400
and federalism, 197–98, 236 –37, 240
impeachment and removal of, 195,
356
limits on, 195–96, 356, 368 –69, 400
plural executive, 363–69
powers, 348 –62, 380 – 400
re-eligibility, 374 –78
relations with Congress, 358 –59, 371,
380 –84, 396 –97, 399– 400
salary, 379–80, 409, 450
term of office, 195, 355, 369–73
unity of, 182, 355–56, 363–69, 385
Press, freedom of, 214, 445– 46, 446, 452
Privileges and immunities clause, 220, 413
Privy council, 437
Prize cases, 437
Property, 70, 125, 324, 370
diversity in state of, 311–12
factions and rights of, 44, 45, 48
protection of, 362, 452–53
as qualification for suffrage, 298, 313
and slaves, taxation, and representa-
tion, 282–86
Prussia, 10, 92
Public good, 45, 61, 64, 108, 135, 179, 185,
238, 271, 370, 382
Public opinion, 135, 262, 348, 367, 446
Punic Wars, 331
Quotas, 101–3, 105–6, 114, 123, 147
Ratification
of Articles of Confederation, 112, 188
of Constitution, 196 –97, 203, 229
Reason
dictates of, 73, 113, 150, 235, 330, 364,
404
fallibility of, 43, 276 –77
need for reinforcement of, 262
and overpowering passions, 264, 266,
288, 304
Index
562
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Rebellion, 137, 386. See also Insurrections;
Shays’s Rebellion
Religion, 44, 46, 48, 94 –95, 185, 271, 361
Representation
likely character of, 46 – 48, 169–72,
172–73
principle of, 63–64
problem of geographical distance, 66,
447– 48
republican nature of, 194 –95, 273,
287–89, 293–95, 295–300
Reprisal, letters of, 25, 230 –31
Republicanism. See Constitution: princi-
ples of (republicanism); Republics
Republics
and betrayal of representatives,
321–22
of commercial bellicosity, 24
definition and character of, 193–96
and democracies, 46 – 47, 63–64
extensiveness of and control of fac-
tions, 45– 48, 270 –72
and foreign corruption, 1109–10
and judiciary, 402
Montesquieu on size of, 38 – 41
need for delay and deliberation in,
327, 370, 405
unmixed and extensive, 64
Requisitions on states
for taxes, 101–2, 105
for troops, 105–6. See also Quotas
Reserved powers, 154 –55, 237– 48. See also
Constitution: principles of (federalism)
Revenue. See Taxes
Revolution, American. See American Rev-
olution
Revolution, Glorious, 128
Rhode Island, 31, 101, 106, 108, 253, 271,
277, 287–88, 326, 436. See also Constitu-
tions, state
Rome, 23, 24, 87, 89, 162, 163, 186, 209, 328,
329, 362– 64, 390
Romulus, 186
Rotation in office, 396
Russia, 101
Rutherford, Thomas, 449n
Rutherford’s (Rutherforth’s) Institutes,
449n
Safety. See Security
St. Croix, Abbé de, 93
St. Lawrence River, 14
Samnians, City of, 21
Sanctions, legal, 72–75, 99–101, 134 –35
Savoy, 94
Saxony, electors of, 92
Scipio, 24
Scotland, 15, 17, 83, 294
Secession, 305
Security
against foreign danger, 181, 208 –15,
389
as object of government, 4, 9, 13, 45,
229
Senate
election, 240, 310, 318, 319–20, 354
membership, 301–2, 308, 320 –32, 334,
349–51, 392
powers, , 332– 47, 346, 359–61, 387–
91, 391– 400
qualifications, 319
term, 319, 321–32. See also Congress
Separation of powers. See Constitution:
principles of (separation of powers);
States: separation of powers
Servius Tullius, 186
Shays’s Rebellion, 22, 100 –101, 125, 136 –37,
386. See also Rebellion
Slaves, 227
on importation of, 192, 217
as persons or property (three-fifths
clause), 282–86
Small states, 28, 34, 106 –7, 184, 189, 285–
86, 287, 301–3, 320 –21
Social compact, 99–100, 232
Socrates, 288
Solon, 186, 187, 329
South Carolina, 107n, 195, 255, 277, 287,
343n, 419, 435. See also Constitutions,
state
Index
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Sovereignty
in confederate republic, 41
difficulty of dividing authority, 182–
85
and equal state representation in Sen-
ate, 320
evils of imperium in imperio, 70 –75,
99, 114
scope of national authority, 99–100,
113, 150 –54, 154 –57, 198 –99, 202–
5, 232–37, 241– 42, 359
state authority, nature of, 41, 47, 65,
81, 154 –57, 198 –99, 240 – 41
See also Constitution, principles of
(sovereignty)
Sparta, 23, 86, 88, 186, 191, 328, 329, 331
Stadtholder, 96, 98
Standing armies. See Army
States
concurrent jurisdiction with national
government, 154 –57
courts, 110 –11, 195, 408, 412–16, 419–
22, 426 –29, 435–37, 438 – 42
dissension among, 20 –26, 26 –31, 37–
39
elections, 275, 284 –84, 315–18
executives, 355, 355–62, 363–64, 369,
383–84, 398 – 400
legislatures, 244 – 45, 277, 289, 305–10,
311, 319–20, 330, 333, 451, 456 –57
northern, 60
relations with federal government,
83–84, 242– 48
restrictions on, 154 –57, 230 –35, 412
separation of powers in, 251–55
southern, 19–20, 60 –62, 282–85, 314n
See also Constitutions, state
States’ rights. See Constitution: principles
of (federalism)
Suabia (Swabia), 90, 93
Suffrage, 272–73, 298 –99
Supremacy clause, 135, 158 –61, 198, 235–37
Supreme Court, 110 –11, 339– 41, 349, 360,
391, 417–29. See also Judiciary
Swabia. See Suabia
Sweden, 92, 110
Switzerland, 219, 225
cantons, 94 –95, 219, 225
Syria, 88
Tamony, 357n
Taxes, 45, 56, 57–60, 141, 240 – 41, 279,
292–93, 433
concurrent power, 156, 162–67
direct, 56 –57, 174 –75, 189, 202, 282
double, 177
external, 147, 166, 213
indirect, 103, 174
internal, 147, 166, 173–79, 292
national, 148 –78, 292
and necessary and proper clause, 159
See also Excises (taxes)
Temple, Sir William, 97, 98
Territory
disputes over western lands, 26 –28,
413
extensiveness requires energetic gov-
ernment, 116
extensiveness and just republican
government, 38 – 41, 46 – 49, 62–
67, 271–72, 327
extensiveness obstacle to usurpation,
139
power to dispose of, 224
Thebans, 85
Theseus, 186
Three-fifths clause, 282–86. See also Slaves
Thuanus (Thou, Jacques Auguste de), 93
Titles of nobility, 196, 232, 360, 443– 44,
453
Trade. See Commerce
Treason, 223–24, 358, 385–86, 443
Treaties
and House ofRepresentatives, 280,
389–90
judicial authority over, 415–16, 437
power to make, 215–16
role of Senate and president in mak-
ing, 332–37, 344, 359, 361, 388 –91,
400
Index
564
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as supreme law ofland, 110, 335–36,
412–13
violation of as cause of war, 9–12
Treaty ofHanover, 97
Treaty of peace (1783), 11, 27, 64, 69
Treaty ofWestphalia, 92, 97
Trial by jury. See Jury, trial by
Tribunes, 329, 331, 364
Tullus, Hostilius, 186
Turkish Empire, 146
Tyranny, 100, 276 –77
affliction of petty republics, 37
causes of, 98, 112, 362
defined as accumulation of powers,
249, 257, 258
experiences of ancient Greece with,
85, 88, 89
legislature likely source of, 257–59,
263–64, 269
Montesquieu on, 252–52
Unicameral legislatures, inadequacy of,
111. See also Legislatures
Union
insufficiency of Articles of Confeder-
ation to promote, 68 –112
need for, 112–32
utility of, 5–67
United Netherlands. See United Provinces
United Provinces (Netherlands), 24, 50,
95–99, 101, 110, 144, 185, 194, 219, 225,
285, 390
Utrecht, Union of, 97
Venice, 24, 194, 258
Vermont, 28, 137. See also Constitutions,
state
Veto power, 269, 356, 361, 370 –72, 380 –
84
Vice–president, 354 –55
Virginia, 39, 102, 106, 144, 195, 204, 212,
254, 258, 260, 275, 287–88, 356, 435
Voters. See Electors
Wales, 15
War
causes of, 10, 11–12, 13, 14, 25, 26 –31,
78 –80, 164
prevention of, 14 –15, 124 –25
war powers, 105–6, 112–21, 123–25,
207–15, 384 –85
Weights and measures, 202, 218, 220
West Indies, 51, 120
Western Territory, 27–28, 65, 121, 192. See
also Territory
Westphalia, Treaty of. See Treaty ofWest-
phalia
William III, 274
Wolsey, Thomas, 22
Wyoming Valley, 28
Xerxes, 85–86
Yates, Abraham, 384n
Zaleucus. See Locrians
Zeland (Zealand), 9
Index
565
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This book is set in Minion, a typeface designed by Robert
Slimbach specifically for digital typesetting. Released by Adobe
in 1989, it is a versatile neohumanist face that shows the influence
of Slimbach’s own calligraphy.
Printed on paper that is acid-free and meets the requirements
of the American National Standard for Permanence of Paper
for Printed Library Materials, z39.48.1992
Book design by Louise OFarrell,
Gainesville, Florida
Typography by G&S Typesetters,
Austin, Texas
Printed and bound by Sheridan Books, Inc.,
Ann Arbor, Michigan

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