a collection of essays written to support the constitution

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Federalist Papers

By: History.com Editors

Updated: June 22, 2023 | Original: November 9, 2009

The Federalist Papers are a collection of essays written in the 1780s in support of the proposed U.S. Constitution and the strong federal government it advocated. In October 1787, the first in a series of 85 essays arguing for ratification of the Constitution appeared in the Independent Journal , under the pseudonym “Publius.” Addressed to “The People of the State of New York,” the essays were actually written by the statesmen Alexander Hamilton , James Madison and John Jay . They would be published serially from 1787-88 in several New York newspapers. The first 77 essays, including Madison’s famous Federalist 10 and Federalist 51 , appeared in book form in 1788. Titled The Federalist , it has been hailed as one of the most important political documents in U.S. history.

Articles of Confederation

As the first written constitution of the newly independent United States, the Articles of Confederation nominally granted Congress the power to conduct foreign policy, maintain armed forces and coin money.

But in practice, this centralized government body had little authority over the individual states, including no power to levy taxes or regulate commerce, which hampered the new nation’s ability to pay its outstanding debts from the Revolutionary War .

In May 1787, 55 delegates gathered in Philadelphia to address the deficiencies of the Articles of Confederation and the problems that had arisen from this weakened central government.

A New Constitution

The document that emerged from the Constitutional Convention went far beyond amending the Articles, however. Instead, it established an entirely new system, including a robust central government divided into legislative , executive and judicial branches.

As soon as 39 delegates signed the proposed Constitution in September 1787, the document went to the states for ratification, igniting a furious debate between “Federalists,” who favored ratification of the Constitution as written, and “Antifederalists,” who opposed the Constitution and resisted giving stronger powers to the national government.

The Rise of Publius

In New York, opposition to the Constitution was particularly strong, and ratification was seen as particularly important. Immediately after the document was adopted, Antifederalists began publishing articles in the press criticizing it.

They argued that the document gave Congress excessive powers and that it could lead to the American people losing the hard-won liberties they had fought for and won in the Revolution.

In response to such critiques, the New York lawyer and statesman Alexander Hamilton, who had served as a delegate to the Constitutional Convention, decided to write a comprehensive series of essays defending the Constitution, and promoting its ratification.

Who Wrote the Federalist Papers?

As a collaborator, Hamilton recruited his fellow New Yorker John Jay, who had helped negotiate the treaty ending the war with Britain and served as secretary of foreign affairs under the Articles of Confederation. The two later enlisted the help of James Madison, another delegate to the Constitutional Convention who was in New York at the time serving in the Confederation Congress.

To avoid opening himself and Madison to charges of betraying the Convention’s confidentiality, Hamilton chose the pen name “Publius,” after a general who had helped found the Roman Republic. He wrote the first essay, which appeared in the Independent Journal, on October 27, 1787.

In it, Hamilton argued that the debate facing the nation was not only over ratification of the proposed Constitution, but over the question of “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.”

After writing the next four essays on the failures of the Articles of Confederation in the realm of foreign affairs, Jay had to drop out of the project due to an attack of rheumatism; he would write only one more essay in the series. Madison wrote a total of 29 essays, while Hamilton wrote a staggering 51.

Federalist Papers Summary

In the Federalist Papers, Hamilton, Jay and Madison argued that the decentralization of power that existed under the Articles of Confederation prevented the new nation from becoming strong enough to compete on the world stage or to quell internal insurrections such as Shays’s Rebellion .

In addition to laying out the many ways in which they believed the Articles of Confederation didn’t work, Hamilton, Jay and Madison used the Federalist essays to explain key provisions of the proposed Constitution, as well as the nature of the republican form of government.

'Federalist 10'

In Federalist 10 , which became the most influential of all the essays, Madison argued against the French political philosopher Montesquieu ’s assertion that true democracy—including Montesquieu’s concept of the separation of powers—was feasible only for small states.

A larger republic, Madison suggested, could more easily balance the competing interests of the different factions or groups (or political parties ) within it. “Extend the sphere, and you take in a greater variety of parties and interests,” he wrote. “[Y]ou make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens[.]”

After emphasizing the central government’s weakness in law enforcement under the Articles of Confederation in Federalist 21-22 , Hamilton dove into a comprehensive defense of the proposed Constitution in the next 14 essays, devoting seven of them to the importance of the government’s power of taxation.

Madison followed with 20 essays devoted to the structure of the new government, including the need for checks and balances between the different powers.

'Federalist 51'

“If men were angels, no government would be necessary,” Madison wrote memorably in Federalist 51 . “If angels were to govern men, neither external nor internal controls on government would be necessary.”

After Jay contributed one more essay on the powers of the Senate , Hamilton concluded the Federalist essays with 21 installments exploring the powers held by the three branches of government—legislative, executive and judiciary.

Impact of the Federalist Papers

Despite their outsized influence in the years to come, and their importance today as touchstones for understanding the Constitution and the founding principles of the U.S. government, the essays published as The Federalist in 1788 saw limited circulation outside of New York at the time they were written. They also fell short of convincing many New York voters, who sent far more Antifederalists than Federalists to the state ratification convention.

Still, in July 1788, a slim majority of New York delegates voted in favor of the Constitution, on the condition that amendments would be added securing certain additional rights. Though Hamilton had opposed this (writing in Federalist 84 that such a bill was unnecessary and could even be harmful) Madison himself would draft the Bill of Rights in 1789, while serving as a representative in the nation’s first Congress.

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Ron Chernow, Hamilton (Penguin, 2004). Pauline Maier, Ratification: The People Debate the Constitution, 1787-1788 (Simon & Schuster, 2010). “If Men Were Angels: Teaching the Constitution with the Federalist Papers.” Constitutional Rights Foundation . Dan T. Coenen, “Fifteen Curious Facts About the Federalist Papers.” University of Georgia School of Law , April 1, 2007. 

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Introductory note: the federalist, [27 october 1787–28 may 1788], introductory note: the federalist.

[New York, October 27, 1787–May 28, 1788]

The Federalist essays have been printed more frequently than any other work of Hamilton. They have, nevertheless, been reprinted in these volumes because no edition of his writings which omitted his most important contribution to political thought could be considered definitive. The essays written by John Jay and James Madison, however, have not been included. They are available in many editions, and they do not, after all, properly belong in the writings of Alexander Hamilton.

The Federalist , addressed to the “People of the State of New-York,” was occasioned by the objections of many New Yorkers to the Constitution which had been proposed on September 17, 1787, by the Philadelphia Convention. During the last week in September and the first weeks of October, 1787, the pages of New York newspapers were filled with articles denouncing the Constitution. 1 The proposed government also had its defenders, but their articles were characterized by somewhat indignant attacks on those who dared oppose the Constitution rather than by reasoned explanations of the advantages of its provisions. 2

The decision to publish a series of essays defending the Constitution and explaining in detail its provisions was made by Alexander Hamilton. Both the reasons for his decision and the date on which he conceived the project are conjecturable. Having gone to Albany early in October to attend the fall session of the Supreme Court, he was not in New York City during the early weeks of the controversy over the Constitution. 3 He must, nevertheless, have concluded that if it were to be adopted, convincing proof of its merits would have to be placed before the citizens of New York. His decision to write the essays may have been made before he left Albany, for according to tradition he wrote the first number of The Federalist in the cabin of his sloop on the return trip to New York. 4

At some time before the appearance of the first essay, written under the pseudonym “Publius,” Hamilton sought and found collaborators, for the first essay, published in The [New York] Independent Journal: or, the General Advertiser on October 27, 1787, was followed in four days by an essay by John Jay. Neither Hamilton nor Jay left a record of any plans they might have made, but the third collaborator, James Madison, later wrote that “the undertaking was proposed by Alexander Hamilton to James Madison with a request to join him and Mr. Jay in carrying it into effect. William Duer was also included in the original plan; and wrote two or more papers, which though intelligent and sprightly, were not continued, nor did they make a part of the printed collection.” 5 Hamilton also sought the assistance of Gouverneur Morris, who in 1815 remembered that he had been “warmly pressed by Hamilton to assist in writing the Federalist.” 6

In reprinting the text of The Federalist the original manuscripts have been approximated as nearly as possible. As the first printing of each essay, despite typographical errors, was presumably closest to the original, the text published in this edition is that which was first printed. The texts of those essays among the first seventy-seven which were written by Hamilton or are of doubtful authorship are taken from the newspapers in which they first appeared; the texts of essays 78–85 are taken from the first edition of The Federalist , edited by John and Archibald McLean. 7

With the exception of the last eight numbers, all the issues of The Federalist were first printed in the newspapers of New York City. The first essay was published on October 27, 1787, in The Independent Journal: or, the General Advertiser , edited by John McLean and Company. Subsequent essays appeared in The Independent Journal and in three other New York newspapers: New-York Packet , edited by Samuel and John Loudon; The Daily Advertiser , edited by Francis Childs; and The New-York Journal, and Daily Patriotic Register , edited by Thomas Greenleaf. 8

The first seven essays, published between October 27 and November 17, 1787, appeared on Saturdays and Wednesdays in The Independent Journal , a semiweekly paper, and a day or two later in both New-York Packet and The Daily Advertiser . At the conclusion of essay 7 the following announcement appeared in The Independent Journal: “In order that the whole subject of these Papers may be as soon as possible laid before the Public, it is proposed to publish them four times a week, on Tuesday in the New-York Packet and on Thursday in the Daily Advertiser.” The intention thus was to publish on Tuesday in New-York Packet , on Wednesday in The Independent Journal , on Thursday in The Daily Advertiser , and on Saturday in The Independent Journal .

The announced plan was not consistently followed. On Thursday, November 22, The Daily Advertiser , according to the proposed schedule, published essay 10, but after its publication no other essay appeared first in that newspaper. To continue the proposed plan of publication—a plan which occasionally was altered by publishing three instead of four essays a week—the third “Publius” essay of the next week appeared on Friday in New-York Packet . After November 30 the essays appeared in the following manner: Tuesday, New-York Packet , Wednesday, The Independent Journal , Friday, New-York Packet , and Saturday, The Independent Journal . The third essay of the week appeared either on Friday in the Packet or on Saturday in The Independent Journal . This pattern of publication was followed through the publication of essay 76 (or essay 77, in the numbering used in this edition of Hamilton’s works) on April 2, 1788. The remaining essays were first printed in the second volume of McLean description begins The Federalist: A Collection of Essays, Written in Favour of the New Constitution, As Agreed upon by the Federal Convention, September 17, 1787. In Two Volumes (New York: Printed and Sold by J. and A. McLean, 1788). description ends ’s edition of May 28, 1788, and beginning on June 14 were reprinted, at intervals of several days, first in The Independent Journal and then in New-York Packet .

The first edition, printed by J. and A. McLean 9 and corrected by Hamilton, is the source from which most editions of The Federalist have been taken. On January 1, 1788, McLean description begins The Federalist: A Collection of Essays, Written in Favour of the New Constitution, As Agreed upon by the Federal Convention, September 17, 1787. In Two Volumes (New York: Printed and Sold by J. and A. McLean, 1788). description ends , having observed “the avidity” with which the “Publius” essays had been “sought after by politicians and persons of every description,” announced plans for the publication of “The FEDERALIST, A Collection of Essays, written in favour of the New Constitution, By a Citizen of New-York , Corrected by the Author, with Additions and Alterations.” 10 The promised volume, including the first thirty-six essays, was published on March 22, 1788. Hamilton was not altogether pleased with the volume, for he stated in the preface 11 that it contained “violations of method and repetitions of ideas which cannot but displease a critical reader.” Despite such imperfections, he hoped that the essays would “promote the cause of truth, and lead to a right judgment of the true interests of the community.” Interested readers were promised a second volume of essays as soon as the editor could prepare them for publication.

“This Day is published,” The Independent Journal advertised on May 28, 1788, “The FEDERALIST, VOLUME SECOND.” This volume contained the remaining essays, including the final eight which had not yet appeared in the newspapers. As in the first volume, there were editorial revisions which probably were made by Hamilton. The final eight essays, which first appeared in this volume were reprinted in The Independent Journal and in New-York Packet between June 14, 1788, and August 16, 1788.

In addition to the McLean edition, during Hamilton’s lifetime there were two French editions 12 and two American editions of The Federalist . The second American edition, printed by John Tiebout in 1799, was not a new printing but a reissue of the remaining copies of the McLean edition with new title pages. The third American edition, published in 1802, not only was a new printing; it also contained revisions presumably approved by Hamilton. It is this, the Hopkins description begins The Federalist On The New Constitution. By Publius. Written in 1788. To Which is Added, Pacificus, on The Proclamation of Neutrality. Written in 1793. Likewise, The Federal Constitution, With All the Amendments. Revised and Corrected. In Two Volumes (New York: Printed and Sold by George F. Hopkins, at Washington’s Head, 1802). description ends edition, which must be taken as Hamilton’s final version of The Federalist . 13

George F. Hopkins announced his plan for a new edition of The Federalist in the January 13, 1802, issue of New-York Evening Post . “Proposals, By G. F. Hopkins, 118 Pearl Street,” read the advertisement in the Post , “For Publishing by Subscription, in Two handsome Octavo Volumes, THE FEDERALIST, ON THE CONSTITUTION, BY PUBLIUS Written in 1788. TO WHICH IS ADDED, PACIFICUS, ON THE PROCLAMATION OF NEUTRALITY. Written in 1793. The whole Revised and Corrected. With new passages and notes .” Hopkins proposed not only to issue a revised text but to give the author of each essay; by naming Hamilton, Madison, and Jay as the authors of The Federalist , he publicly broke the poorly kept secrecy surrounding its authorship. Almost a year passed before Hopkins, on December 8, 1802, offered to the public “in a dress which it is believed will meet with general approbation” the new edition.

Although it is certain that Hamilton did not himself revise the text published in the Hopkins edition, available evidence indicates that he approved the alterations which were made. In 1847 J. C. Hamilton wrote to Hopkins requesting information on the extent to which Hamilton had made or approved the revisions. Hopkins replied that the changes had been made by a “respectable professional gentleman” who, after completing his work, had “put the volumes into the hands of your father, who examined the numerous corrections, most of which he sanctioned, and the work was put to press.” The editor, who was not named by Hopkins, was identified by J. C. Hamilton as John Wells, an eminent New York lawyer. The Hopkins edition, Hamilton’s son emphatically stated, was “ revised and corrected by John Wells … and supervised by Hamilton.” 14 Henry B. Dawson in his 1864 edition of The Federalist contested J. C. Hamilton’s conclusion and argued that the changes were made by William Coleman, editor of New-York Evening Post , and that they were made without Hamilton’s authorization or approval. According to Dawson, Hopkins declared on two different occasions in later years—once to James A. Hamilton and once to John W. Francis—that Hamilton refused to have any changes made in the essays. 15 Although it is impossible to resolve the contradictory statements on Hamilton’s participation in the revisions included in the 1802 edition of The Federalist , J. C. Hamilton presents the more convincing evidence. He, after all, quoted a statement by Hopkins description begins The Federalist On The New Constitution. By Publius. Written in 1788. To Which is Added, Pacificus, on The Proclamation of Neutrality. Written in 1793. Likewise, The Federal Constitution, With All the Amendments. Revised and Corrected. In Two Volumes (New York: Printed and Sold by George F. Hopkins, at Washington’s Head, 1802). description ends , while Dawson related only a conversation.

The McLean and Hopkins editions thus constitute Hamilton’s revision of the text of The Federalist . Hamilton made some minor changes in essays written by Jay and Madison—changes which in the McLean edition they presumably authorized. Jay never revised the essays he wrote, and it was not until 1818 that Madison authorized the publication of an edition which included his own corrections of his essays. This edition was published by Jacob Gideon, 16 a printer in Washington, D.C.

It is, then, from the newspapers of the day, the McLean edition of 1788, and the Hopkins edition of 1802 that a definitive text of Hamilton’s contribution to The Federalist must be reconstructed. In the present edition, as stated above, the texts of essays 1–77 have been taken from the newspapers in which they first appeared; the texts of essays 78–85 are from volume two of the McLean edition. All changes which Hamilton later made or approved in the texts of the essays he wrote have been indicated in notes. Thus in essays 1–77 all changes made in the McLean and Hopkins editions in Hamilton’s essays are given. In essays 78–85 all the changes which appeared in the Hopkins edition are noted. The edition in which a revision was made is indicated by a short title, either by the name “McLean” or “Hopkins.” To this rule there are, however, three exceptions: 1. When an obvious typographical error appears in the text taken from the newspaper, it has been corrected without annotation. 2. When in McLean there is a correction of a printer’s error which, if left unchanged, would make the text meaningless or inaccurate, that correction has been incorporated in the text; the word or words in the newspaper for which changes have been substituted are then indicated in the notes. 3. Obvious printer’s errors in punctuation have been corrected; a period at the end of a question, for example, has been changed to a question mark. When a dash is used at the end of a sentence, a period has been substituted.

Because of changes made in the McLean edition, the numbering of certain essays presents an editorial problem. When McLean, with Hamilton’s assistance, published the first edition of The Federalist , it was decided that the essay published in the newspaper as 35 should follow essay 28, presumably because the subject matter of 35 was a continuation of the subject treated in 28. It also was concluded, probably because of its unusual length, that the essay which appeared in the newspapers as essay 31 should be divided and published as two essays. When these changes were made, the original numbering of essays 29–36 was changed in the following way:

Essays 36–78 in the McLean edition thus were one number higher than the number given the corresponding essay in the newspaper.

Because McLean changed the numbers of some of the essays, later editors have questioned whether there were 84 or 85 essays. This is understandable, for there were only 84 essays printed in the newspapers, the essays 32 and 33 by McLean having appeared in the press as a single essay. The last essay printed in The Independent Journal accordingly was numbered 84. The last eight essays published in New-York Packet , on the other hand, were given the numbers used in the second volume of McLean’s edition. The last number of The Federalist printed by New-York Packet in April had been numbered “76”; the following essay, published in June, was numbered “78.” By omitting the number “77,” the editor of New-York Packet , like McLean, numbered the last of the essays “85.”

Later editions of The Federalist , except for that published by Henry B. Dawson, have followed the numbering of the McLean edition. Since no possible purpose would be served and some confusion might result by restoring the newspaper numbering, the essays in the present edition have been given the numbers used by McLean in 1788, and the newspaper number has been placed in brackets.

Almost a century and a half of controversy has centered on the authorship of certain numbers of The Federalist . Similar to most other eighteenth-century newspaper contributors, the authors of The Federalist chose to write anonymously. When The Federalist essays appeared in the press, many New Yorkers probably suspected that Hamilton, if not the sole author of the “Publius” essays, was the major contributor. Friends of Hamilton and Madison, and perhaps those of Jay, certainly knew that this was a joint enterprise and who the authors were. 17 The number of essays written by each author, if only because the question probably never arose, aroused no curiosity. The Federalist , after all, was written for the immediate purpose of persuading the citizens of New York that it was to their interest to adopt the Constitution; certainly not the authors, and probably few readers, realized that the essays which in the winter of 1788 appeared so frequently in the New York press under the signature of “Publius” would become a classic interpretation of the Constitution of the United States. In 1802, George F. Hopkins proposed to publish a new edition of The Federalist in which the authors would be identified; but because of Hamilton’s “decided disapprobation” 18 no identification of the authors was made in that edition. It was not until three years after Hamilton’s death that The Port Folio , a Philadelphia weekly, published a list of the authors of the essays, thus opening a controversy which still remains unsettled. 19

The evidence on the authorship of several of the essays is contradictory because both Hamilton and Madison made, or allegedly made, several lists in which they claimed authorship of the same essays. It is neither necessary nor instructive to discuss the minor discrepancies found in the claims by the two men in their respective lists. 20 The whole problem is simplified by keeping in mind that of the eighty-five essays the authorship of only fifteen is disputed. Despite contrary claims in several of the least credible lists published during the first two decades of the nineteenth century, it has long been accepted that Hamilton wrote essays 1, 6–9, 11–13, 15–17, 21–36, 59–61, and 65–85; that Madison was the author of essays 10, 14, 37–48; and that Jay contributed essays 2–5 and 64. 21 The authorship of only essays 18–20, 49–58, and 62–63 is therefore debatable.

The number of disputed essays can be reduced by examining the reliability of the several Madison and Hamilton lists. There are four reputed Madison lists: 1. An article, signed “Corrector,” which appeared in the National Intelligencer on March 20, 1817, and which, according to the anonymous author, was copied from “a penciled memorandum in the hand of Madison.” 22 2. A statement of authorship, supposedly endorsed by Madison, made by Richard Rush, a member of Madison’s cabinet, in his copy of The Federalist . 23 3. An article in the City of Washington Gazette , December 15, 1817, claiming to set forth a list “furnished by Madison himself.” 24 4. The edition of The Federalist published by Jacob Gideon in 1818, which based its attribution of authorship on Madison’s own “copy of the work which that gentleman had preserved for himself.” 25 There is no evidence that Madison approved the first three lists; the fourth, the Gideon edition, was not only based on Madison’s copy, but it was endorsed by him as correct.

Hamilton’s claims to authorship are more complicated. Despite statements by his partisans, there are only three Hamilton lists that merit the serious attention of the historian who applies any known tests for evaluating historical evidence. They are the so-called “Benson list,” the list allegedly preserved by Hamilton in his own copy of The Federalist , and the “Kent list.”

The Benson list, according to a story first related by William Coleman in March, 1817, was left by Hamilton, shortly before his death, between the pages of a book in the library of his long-time friend, Judge Egbert Benson. Arriving at Benson’s office, Hamilton was told by Robert Benson, Jr., Egbert’s nephew and clerk, that the Judge and Rufus King had gone to Massachusetts for a few days. As Hamilton conversed with the law clerk, he idly handled one of the volumes on the shelves in the office. After Hamilton’s death which occurred two days later, Benson remembered the incident and, looking in the book Hamilton had picked up, he found a scrap of paper, unsigned but in Hamilton’s hand, listing the essays he had written. 26 Judge Benson, according to the traditional account, pasted it on the inside cover of his copy of The Federalist but somewhat later, fearing that he might lose such a valuable document, deposited it in the New York Society Library. The memorandum was presumably stolen in 1818. 27

The existence of the Benson list was corroborated by two witnesses, Robert Benson and William Coleman. Coleman, editor of New-York Evening Post , is the less credible authority; he may have seen the Benson list, but it is significant that he never definitely stated that he did. The most emphatic statement that he made, elicited by the demands for proof made by an antagonist in a newspaper controversy over the authorship of The Federalist , was as follows:

“I, therefore, for the entire satisfaction of the public, now state, that the memorandum referred to is in General Hamilton’s own hand writing, was left by him with his friend judge BENSON, the week before his death, and was, by the latter, deposited in the city library, where it now is, and may be seen, pasted in one of the volumes of The Federalist .” 28

The statement of Robert Benson, the law clerk to whom Hamilton spoke on the day before his encounter with Burr, is more convincing, but it was made many years after the event, and it is far from being conclusive. “I was then a student in the office,” Benson recalled “and well known to the General” who called and enquired for Judge Benson.

“I replied that he had left the city with Mr. King. The General in his usual manner then went to the book case and took down a book which he opened and soon replaced, and left the office. Some time after the General’s death, a memorandum in his handwriting was found in a volume of Pliny’s letters, I think , which, I believe , was the book he took down, and which memorandum was afterwards wafered by the Judge in the inside cover of the first volume of the Federalist, and where it remained for several years. He subsequently removed it, and, as I understand , gave it to some public library.… The marks of the wafers still remain in the volume, and above them in Judge Benson’s handwriting is, what is presumed, and I believe to be , a copy of the General’s memorandum above referred to.” 29

The Benson list is suspect, then, because the claim for its authenticity is based on the evidence of two men neither of whom stated that he actually saw it. If there had not already been too much fruitless speculation on Hamilton’s thoughts and intentions, it would be interesting to explain why Hamilton chose such a roundabout method to make certain that future generations would recognize his contribution to such a celebrated book. Perhaps he knew that Robert Benson would search all the volumes in his uncle’s office on the suspicion that Hamilton, however uncharacteristically, had concealed a note on some important subject; or perhaps he thought that Benson frequently read Pliny’s Letters and thus could be sure the note would be found. One can speculate endlessly on the motives for Hamilton’s extraordinary behavior, but the significant fact is that the Benson list is inadequate as historical evidence.

Evidence of the existence of Hamilton’s own copy of The Federalist in which he supposedly listed the essays he wrote comes from a notice which appeared on November 14, 1807, in The Port Folio . “The Executors of the last will of General Hamilton,” the Philadelphia weekly announced, “have deposited in the Publick Library of New-York a copy of ‘ The Federalist ,’ which belonged to the General in his lifetime, in which he has designated in his own handwriting, the parts of that celebrated work written by himself, as well as those contributed by Mr. JAY and Mr. MADISON.” No one has seen Hamilton’s copy in the last 150 years; whether it existed or what happened to it, if it did exist, cannot now be known. 30

While the numbers claimed by Hamilton in the Benson list and in his own copy of The Federalist are the same, the list by Chancellor James Kent disagrees in several particulars from the other two. The Kent list, in the Chancellor’s own writing, was found on the inside cover of his copy of The Federalist , now in the Columbia University Libraries. Because of differences in the ink and pen he used, Kent’s statement may be divided into three parts, each of which was written at a different time. In the following copy of Kent’s notes the three parts are indicated by Roman numerals:

The numbers which were written over the numbers Kent first wrote are not in Kent’s writing. However familiar one is with the handwriting of another, it is difficult to determine if a single numeral is in his writing. But despite the impossibility of positive identification, a close comparison of numerals made by Hamilton with the numerals which were added to the Kent list strongly indicates that the changes are in the writing of Hamilton. The Kent list thus becomes the only evidence in Hamilton’s writing which now exists. See also James Kent to William Coleman, May 12, 1817 ( ALS , Columbia University Libraries).

Certain reasonable deductions can be made from the evidence presented by Kent’s notes. The ink clearly reveals that the three notes were made at different times. The information in part I of the notes was obtained from someone other than Hamilton, for otherwise Kent would not have written in part II “that Mr. Hamilton told me.” The information in part II must have been given to Kent in a conversation, for it is evident that Kent was not sure that he remembered what Hamilton had said or that Hamilton could remember, without reference to a copy of The Federalist , which essays he had written.

Part III—because it refers to Hamilton as “general” (a rank which he attained in 1798), and because the conversation alluded to took place in Albany—must have been made between 1800, the year in which Hamilton resumed his law practice after completing his duties as inspector general of the Army, and his death in 1804. The third section of Kent’s memorandum also indicates that Hamilton corrected and approved the Kent list. It constitutes, therefore, the most reliable evidence available on Hamilton’s claims of authorship. It should be noted, however, that Kent later doubted the accuracy of Hamilton’s memory, for on the page opposite his memorandum he pasted a copy of the article from the City of Washington Gazette , which stated that Madison had written essays 10, 14, 17, 18, 19, 21, 37–58, 62–63, and that Jay was the author of essays 2, 3, 4, 5, 64. Underneath this clipping Kent wrote:

“I have no doubt Mr. Jay wrote No 64 on the Treaty Power—He made a Speech on that Subject in the NY Convention, & I am told he says he wrote it. I suspect therefore from internal Ev. the above to be the correct List, & not the one on the opposite page.” 31

A comparison of the Kent list (for those essays claimed by Hamilton) with the Gideon edition (for those essays claimed by Madison) makes it clear that there is room for doubt only over the authorship of essays 18, 19, 20, 50, 51, 52, 54–58, and 62–63. About three of these—18, 19, and 20—there should be no dispute, for there is a statement by Madison which Hamilton’s claim does not really controvert. On the margin of his copy of The Federalist opposite number 18 Madison wrote:

“The subject matter 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 problem of determining the authorship of these three essays is merely one of deciding on the comparative contributions of the two men. Although there are several sentences which are very similar to remarks Hamilton recorded in the outline for his speech of June 18, 1787, on the Constitution, most of the material was undoubtedly supplied by Madison who without doubt wrote these essays. Essay 20, for example, is virtually a copy of notes which Madison had taken in preparation for the Constitutional Convention. 32 On the other hand, Hamilton, however slight his contribution, did contribute to these essays. The authorship of 50, 51, 52, 54, 55, 56, 57, 58, 62, and 63 is more difficult to determine, 33 but Madison’s claim as represented by the Gideon edition appears more convincing than Hamilton’s claim as represented by the Kent list.

Internal evidence has proved to be of little assistance in determining the authorship of The Federalist . The ablest studies in this field are those by Edward G. Bourne 34 and J. C. Hamilton. 35 Bourne attributes all disputed essays to Madison; J. C. Hamilton asserts that they were written by his father. Bourne and J. C. Hamilton attempt to prove their respective cases by printing excerpts from the disputed essays parallel to similar, and sometimes identical, passages from other writings by each man. Bourne presents very convincing evidence for Madison’s authorship of numbers 49, 51, 53, 62, 63, and a fair case for Madison having written numbers 50 and 52; his case for 54, 55, 56, 57, and 58 is particularly weak as he offers no evidence from Madison’s other writings and relies on the argument that, as essays 48–58 are a group, the author who wrote the earlier essays must also have written the later ones in the group. J. C. Hamilton, on the other hand, produces some evidence that Hamilton wrote essays 55–58, and he offers contrived and unconvincing arguments in support of Hamilton’s authorship of the remaining disputed essays. The significant point, however, is that each man was able to find evidence that his candidate wrote all the disputed essays. The contradictory conclusions of these two men—one of whom studied intensively the previous writings of Madison and the other whose life-long study of his father gave him a knowledge of Hamilton’s writings which never has been excelled—point up the difficulties of deciding this dispute on the basis of internal evidence.

The problems posed by internal evidence are made even more difficult by the fact that both Hamilton and Madison defended the Constitution with similar arguments and by the fact that they both had a remarkably similar prose style. To attempt to find in any of the disputed essays words which either man used and which the other never employed is futile, if only because the enormous amount which each wrote allows the assiduous searcher to discover almost any word in the earlier or subsequent writings of both. 36 The search for parallel statements in the disputed essays and in earlier writings is also an unrewarding enterprise. Madison doubtless did not approve of the ideas expressed in Hamilton’s famous speech on June 18, 1787, to the Convention; but before 1787 both men agreed on the weaknesses of the Confederation and the necessity of a stronger central government. 37 The similarity of their thinking is particularly apparent to one who examines their collaboration when they were both members of the Continental Congress in 1783. Their later political differences prove little about what they wrote in 1787–88.

If one were to rely on internal evidence, it would be impossible to assign all the disputed essays to either Hamilton or Madison. While such evidence indicates that Madison surely wrote numbers 49–54 and probably 62–63, it also suggests that Hamilton wrote 55–58. In this edition of Hamilton’s writings, however, greater weight is given to the claims made by the disputants than to internal evidence. Madison’s claims were maturely considered and emphatically stated; Hamilton, on the other hand, showed little interest in the question, and he died before it had become a matter of acrimonious controversy. But the fact remains that Hamilton’s claims have never been unequivocally refuted, and the possibility remains that he could have written essays 50–52, 54–58, 62–63. As a consequence, these essays have been printed in this edition of Hamilton’s writings. Madison’s adherents may, however, derive some consolation from the fact that in the notes to each of these essays it is stated that Madison’s claims to authorship are superior to those of Hamilton.

1 .  The most important of these was by “Cato,” presumably George Clinton. The first “Cato” letter was published in The New-York Journal, and Weekly Register on September 27, 1787.

2 .  See, for example, the two articles by “Caesar” ( September 28 and October 15, 1787 ), which erroneously have been attributed to H.

3 .  An anonymous newspaper article, signed “Aristides” and published in The [New York] Daily Advertiser on October 6, stated that H’s absence from the city prevented him from defending himself against newspaper attacks. An entry in H’s Cash Book dated November 4 (see “Cash Book,” March 1, 1782–1791 ) indicates that he attended the October session of the Supreme Court in Albany.

4 .  The story was first related in Hamilton, History description begins John C. Hamilton, Life of Alexander Hamilton, a History of the Republic of the United States of America (Boston, 1879). description ends III, 369, and has been repeated in most works on The Federalist .

5 .  A memorandum by Madison entitled “The Federalist,” quoted in J. C. Hamilton, ed., The Federalist: a Commentary on the Constitution of the United States. A Collection of Essays by Alexander Hamilton, Jay, and Madison. Also, The Continentalist and Other Papers by Hamilton (Philadelphia, 1865), I, lxxxv.

The essays by William Duer, signed “Philo-Publius,” are published at the end of the second volume of J. C. Hamilton’s edition of The Federalist .

6 .  Morris to W. H. Wells, February 24, 1815, in Sparks, The Life of Gouverneur Morris description begins Jared Sparks, The Life of Gouverneur Morris (Boston, 1832). description ends , III, 339.

7 .  Drafts of only two essays, 5 and 64, both of which were written by John Jay, have been found. The draft of essay 5 is in the John Jay Papers, Columbia University Libraries. The draft of essay 64 is in the New-York Historical Society, New York City. The draft of essay 3 is now owned by Mr. Ruddy Ruggles of Chicago.

8 .  Most writers have stated that all the essays first appeared in The Independent Journal: or, the General Advertiser or New-York Packet . Others (J. C. Hamilton and Henry B. Dawson, for example) were aware that they appeared first in different newspapers, but they did not determine accurately the newspaper in which each essay first appeared.

The Independent Journal and New-York Packet carried the entire series of essays, while The Daily Advertiser ceased to print them after essay 51. The New-York Journal carried only essays 23 through 39. At no time, however, did an essay appear in The New-York Journal without appearing in at least one of the three other papers at the same time. On January 1, 1788, Thomas Greenleaf, editor of the Journal and supporter of George Clinton, printed a letter signed “45 Subscribers” which complained about Greenleaf’s publication of “Publius,” which was already appearing in three newspapers. Shortly after this, on January 30, 1788, Greenleaf discontinued publication of the essays with number 39 (numbered by him 37).

9 .  The full title is The Federalist: A Collection of Essays, Written in Favour of the New Constitution, As Agreed Upon by the Federal Convention, September 17, 1787. In Two Volumes (New York: Printed and Sold by J. and A. McLean, No. 41, Hanover-Square. MDCCLXXXVIII). This is referred to hereafter as the “McLean edition.”

10 .  The Independent Journal: or, the General Advertiser January 1, 1788.

11 .  There is no question that H was the author of the preface and that he corrected the essays. Not only was this stated by McLean’s advertisement, but Madison, writing years later, said that the essays “were edited as soon as possible in two small vols. the preface to the 1st. vol. drawn up by Mr. H., bearing date N. York Mar. 1788” ( Hunt, Writings of Madison description begins Gaillard Hunt, ed., The Writings of James Madison (New York, 1902). description ends , VIII, 411).

12 .  The first French edition, published in two volumes in 1792, listed the authors as “MM. Hamilton, Madisson et Gay, Citoyens de l’Etat de New-York.” The second edition, published in 1795 and also in two volumes, named “MM. Hamilton, Madisson et Jay” as the authors. For a description of these editions, see The Fœderalist: A Collection of Essays, Written in Favor of the New Constitution, as Agreed upon by the Fœderal Convention, September 17, 1787. Reprinted from the Original Text . With an Historical Introduction and Notes by Henry B. Dawson. In Two Volumes (Morrisania, New York, 1864), I, lxiv–lxvi.

13 .  The FEDERALIST, On the New Constitution. By Publius. Written in 1788. To Which is Added, PACIFICUS, On the Proclamation of Neutrality. Written in 1793. Likewise, The Federal Constitution, With All the Amendments. Revised and Corrected. In Two Volumes (New York: Printed and Sold by George F. Hopkins, At Washington’s Head, 1802). Cited hereafter as the “Hopkins edition.”

14 .  J. C. Hamilton, The Federalist description begins John C. Hamilton, ed., The Federalist: A Commentary on the Constitution of the United States. A Collection of Essays by Alexander Hamilton, Jay, and Madison. Also, The Continentalist and Other Papers by Hamilton (Philadelphia, 1865). description ends , I, xci, xcii.

15 .  Henry B. Dawson, The Fœderalist , I, lxx–lxxi.

16 .  The Federalist, on The New Constitution, written in the year 1788, By Mr. Hamilton, Mr. Madison, and Mr. Jay with An Appendix, containing The Letters of Pacificus and Helvidius, on the Proclamation of Neutrality of 1793; Also the Original Articles of Confederation, and The Constitution of the United States, with the Amendments Made Thereto. A New Edition. The Numbers Written by Mr. Madison corrected by Himself (City of Washington: Printed and Published by Jacob Gideon, Jun., 1818). Cited hereafter as the “Gideon edition.”

17 .  Three days after the publication of the first essay, Hamilton sent George Washington a copy of it. Hamilton wrote that the essay was “the first of a series of papers to be written in its [the Constitution’s] defense.” Washington, of course, knew that H was the author, for H customarily sent to Washington anonymous newspaper articles which he wrote. On December 2, 1787, Madison wrote to Edmund Randolph:

“The enclosed paper contains two numbers of the Federalist. This paper was begun about three weeks ago, and proposes to go through the subject. I have not been able to collect all the numbers, since my return to Philad, or I would have sent them to you. I have been the less anxious, as I understand the printer means to make a pamphlet of them, when I can give them to you in a more convenient form. You will probably discover marks of different pens. I am not at liberty to give you any other key, than, that I am in myself for a few numbers; and that one, besides myself was a member of the Convention.” ( Hunt, Writings of Madison description begins Gaillard Hunt, ed., The Writings of James Madison (New York, 1902). description ends , V, 60–61.)

18 .  The first edition of The Federalist which attributed specific essays to individual authors appeared as the second and third volumes of a three-volume edition of H’s writings published in 1810 ( The Federalist, on the new constitution; written in 1788, by Mr. Hamilton, Mr. Jay, and Mr. Madison … A new edition, with the names and portraits of the several writers . In Two Volumes [New York, published by Williams & Whiting, 1810]).

19 .  The letter in The Port Folio of November 14, 1807, reads as follows:

“Mr. OLDSCHOOL,

“The Executors of the last will of General HAMILTON have deposited in the Publick Library of New-York a copy of ‘ The Federalist ,’ which belonged to the General in his lifetime, in which he has designated, in his own hand-writing, the parts of that celebrated work written by himself, as well as those contributed by Mr. JAY and Mr. MADISON. As it may not be uninteresting to many of your readers, I shall subjoin a copy of the General’s memorandum for publication in ‘The Port Folio.’   M.

“Nos. 2, 3, 4, 5, 54 Mr. JAY. Nos. 10, 14, 37, to 48 inclusive, Mr. MADISON. Nos. 18, 19, 20, Mr. HAMILTON and Mr. MADDISON jointly—all the rest by Mr. HAMILTON.”

20 .  There are several lists other than those subsequently discussed in the text. On the flyleaf of volume 1 of his copy of The Federalist , Thomas Jefferson wrote the following: “No. 2. 3. 4. 5. 64 by Mr. Jay. No. 10. 14. 17. 18. 19. 21. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 50. 51. 52. 53. 54. 55. 56. 57. 58. 62. 63. by Mr. Madison. The rest of the work by Alexander Hamilton.” Jefferson’s copy of The Federalist , now in the Rare Book Room of the Library of Congress, came to him indirectly from H’s wife, Elizabeth. It bears the inscription: “For Mrs. Church from her Sister . Elizabeth Hamilton.” The words, “For Mrs. Church from her Sister ,” are in the handwriting of Elizabeth Hamilton. Angelica Schuyler Church, despite her admiration for her brother-in-law, had long been a friend of Jefferson and must have sent her copy of The Federalist to him. It is not known from whom Jefferson got his information on the authorship of the essays, but presumably it was from Madison. It will be noted that there is only one minor difference between Jefferson’s attribution of the essays and that made by Madison: Jefferson attributed essay 17 to Madison. A facsimile is printed in E. Millicent Sowerby, Catalog of the Library of Thomas Jefferson (Washington, D.C., 1953), III, 228.

On the title page of George Washington’s copy of The Federalist there is an assignment of authorship which reads as follows: “Jay author—1, 2, 3, 4, 5, and 54. Madison—10, 14, 37–48 exclusive of last. 18, 19, 20, productive of Jay, AH and Madison. All rest by Gen’l Hamilton.” This memorandum is in an unidentified handwriting. Except for two differences it conforms to the Benson list. Without more information on the source of the list, its reliability is highly suspect (Washington’s copy of The Federalist is in the National Archives).

Henry Cabot Lodge in his edition of The Federalist ( HCLW description begins Henry Cabot Lodge, ed., The Works of Alexander Hamilton (New York, 1904). description ends , XI, xxvii), placed in evidence lists of authors which he found in copies of The Federalist owned by Fisher Ames and George Cabot. Both correspond to the Benson list.

21 .  Jay’s authorship of these essays is incontestable. H supposedly stated in the Benson list that he wrote 64 and that Jay was the author of 54. The draft of 64, in the writing of Jay, is in the New-York Historical Society, New York City. Both H and Madison agreed that Jay wrote 2, 3, 4, and 5.

That Jay contributed only five essays was due to an attack of rheumatism which lasted through the winter of 1787. It was not due, as his earlier biographers stated, to an injury which he received in the “Doctors’ Riot” in New York. The riot did not occur until April, 1788, by which time most of the “Publius” essays had been written (Frank Monaghan, John Jay [New York, 1935], 290).

22 .  “I take upon me to state from indubitable authority,” Corrector wrote “that Mr. Madison wrote Nos. 10, 14, 18, 19, 20, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 62, 63, and 64. Mr. Jay wrote Nos. 2, 3, 4, and 5; and Mr. Hamilton the residue” ([Washington] National Intelligencer , March 20, 1817).

23 .  Benjamin Rush, the oldest son of Richard, sent Henry B. Dawson the following description of the notes in the edition of The Federalist owned by his father: “On a fly-leaf of the second volume there is the following memorandum in my father’s handwriting. I copy it exactly as it appears: ‘The initials, J.M. J.J. and A.H. throughout the work, are in Mr. Madison’s hand, and designate the author of each number. By these it will be seen, that although the printed designations are generally correct, they are not always so’” (Benjamin Rush to Dawson, August 29, 1863, New-York Historical Society, New York City).

Madison’s attribution of authorship, according to Benjamin Rush, was exactly the same as that which the Virginian authorized in the Gideon edition.

24 .  The anonymous author of the article in the City of Washington Gazette stated that Madison wrote essays 10, 14, 17, 18, 19, 21, 37–58, 62–63, that Jay was the author of essays 2, 3, 4, 5, and 64, and that H wrote the rest.

25 .  Gideon, p. 3. In this edition, essays 10, 14, 18–20, 37–58, 62–63 are assigned to Madison; 2, 3, 4, 5, and 64 to Jay; and the remainder to H. Madison’s copy of The Federalist , with corrections in his handwriting, is in the Rare Book Room of the Library of Congress.

26 .  The memorandum by H, as printed by William Coleman, reads as follows: “Nos. 2. 3. 4. 5. 54, Mr. Jay; Nos. 10, 14, 37 to 48 inclusive, Mr. Madison; Nos. 18, 19, 20, Mr. Hamilton and Mr. Madison jointly; all the rest by Mr. Hamilton” ( New-York Evening Post , March 25, 1817).

27 .  According to Coleman the memorandum was deposited by Egbert Benson in “the city library,” as the New York Society Library was then sometimes known. The remainder of the story related in this paragraph is taken from J. C. Hamilton’s account of a “ Copy of a statement in my possession made for me by Egbert Benson, Esq., a nephew of Judge Benson.” It is quoted in Hamilton, The Federalist description begins John C. Hamilton, ed., The Federalist: A Commentary on the Constitution of the United States. A Collection of Essays by Alexander Hamilton, Jay, and Madison. Also, The Continentalist and Other Papers by Hamilton (Philadelphia, 1865). description ends , I, xcvi–xcvii.

28 .  New-York Evening Post , January 23, 1818.

The volume from which the memorandum was stolen may have been at one time in the New York Society Library; however, it is no longer there. That library has no McLean edition of The Federalist that bears any marks which indicate that a piece of paper once had been pasted on the inside cover.

29 .  Hamilton, The Federalist description begins John C. Hamilton, ed., The Federalist: A Commentary on the Constitution of the United States. A Collection of Essays by Alexander Hamilton, Jay, and Madison. Also, The Continentalist and Other Papers by Hamilton (Philadelphia, 1865). description ends , I, xcvi–xcvii. The italics have been inserted.

J. C. Hamilton did not get this statement from Robert Benson. It was, as has been stated, from the “ Copy of a statement in my possession made for me by Egbert Benson, Esq., a nephew of Judge Benson” ( ibid. , xcvii).

30 .  For the attribution of authorship which H made in his copy of The Federalist , see note 20.

H’s copy is now in neither the New York Society Library, the New-York Historical Society, nor the New York Public Library, and those libraries have no record of ever having owned it. G. W. Cole, ed., A Catalogue of Books Relating to the Discovery and Early History of North and South America, The E. D. Church Library (New York, 1907), V, Number 1230, lists an item purporting to be H’s copy of The Federalist with notes in his writing. According to the librarian of the Huntington Library, San Marino, California, which acquired the Church library, the notes were not in the writing of H. The book, which is no longer in the Huntington Library, was sold to an unknown purchaser.

J. C. Hamilton, probably unintentionally, contradicts the statement that the names of the authors in his father’s copy of The Federalist were in H’s handwriting. He stated that his father dictated to him the authors of the essays which he then copied into H’s copy ( The Federalist description begins John C. Hamilton, ed., The Federalist: A Commentary on the Constitution of the United States. A Collection of Essays by Alexander Hamilton, Jay, and Madison. Also, The Continentalist and Other Papers by Hamilton (Philadelphia, 1865). description ends , I, xcvi–xcvii).

31 .  Not too much reliance should be placed on Kent’s endorsement of the Madison list in the City of Washington Gazette . According to that list, Madison wrote not only all the disputed essays but also essay 17. As Madison’s most ardent defenders assign this essay to H, it seems that Kent’s statement indicated nothing more than his suspicion that H may have made errors in his assignment of authors of the essays.

While Kent’s statement shows that he doubted the accuracy of the attribution of essays made by H, it raises several questions that cannot satisfactorily be answered. The clipping from the City of Washington Gazette was dated December 15, 1817, and the notes on the opposite page of the flyleaf, as stated in the text, could not have been written later than 1804. How, then, could Kent have written that he doubted that Jay wrote essay 64 when the essay was attributed to Jay on a page which was in front of Kent as he wrote? The only possible answer is that Kent, when writing in 1817 or later, failed to look carefully at the changes which had been made in his earlier memorandum and had his uncorrected list in mind. Whatever the explanation for his later statement, it is at least certain that he did not change the earlier list after he saw the article in the City of Washington Gazette .

32 .  “Notes of Ancient and Modern Confederacies, preparatory to the federal Convention of 1787” ( Madison, Letters description begins James Madison, Letters and Other Writings of James Madison (Philadelphia, 1867). description ends , I, 293–315).

33 .  A favorite argument of those who support Madison’s claim to essays 49–58 of The Federalist is that since those essays constitute a unit, one man must have written all of them. The essays deal with: 1. the necessity of the departments of government having checks on each other, and 2. the House of Representatives. Madison’s defenders, in their desire to prove his authorship, forget that essays 59, 60, and 61, essays which they attribute to H, also deal with the House of Representatives. There are, furthermore, several obvious breaks in continuity among the essays from 48 to 58, at which a change of authors could have taken place. Essay 51, for example, ends the discussion of the necessity that “these departments shall be so far connected and blended as to give to each a constitutional control over the others,” and essay 52 begins the discussion of the House of Representatives. A change could also have occurred after essay 54 or essay 57. This is not to say that changes in authorship did occur; it is to indicate that the “unit” argument will not stand up under scrutiny.

34 .  “The Authorship of the Federalist,” The American Historical Review , II (April, 1897), 443–60.

35 .  The fact that only Bourne and J. C. Hamilton are cited does not mean that other studies of the authorship of The Federalist have been ignored or overlooked. It means rather that other authors, while sometimes introducing new arguments, have relied heavily on the research of Bourne and J. C. Hamilton. To cite all those who have agreed with Bourne or Hamilton would be redundant; to summarize all the arguments of the numerous students of The Federalist —based for the most part on Bourne and Hamilton’s original research—is a task best left to the historiographer of that work.

There have been, of course, other able studies of the authorship of the disputed essays. Among the defenders of H’s claim, Henry Cabot Lodge (“The Authorship of the Federalist,” HCLW description begins Henry Cabot Lodge, ed., The Works of Alexander Hamilton (New York, 1904). description ends , XI, xv–xlv) and Paul L. Ford (“The Authorship of The Federalist,” The American Historical Review , II [July, 1897], 675–82) have been the most able advocates. The most convincing exponent of Madison’s claim since Bourne is Douglass Adair (“The Authorship of the Disputed Federalist Papers,” The William and Mary Quarterly , 3rd. ser., Vol. I, Numbers 2 and 3 [April and July, 1944], 97–122, 235–64). In two essays which brilliantly summarize the century-old controversy over the authorship of the disputed essays, Adair amplifies the research of Bourne and attempts to assign the disputed essays on the basis of the political philosophy which they reveal.

36 .  See, for example, S. A. Bailey, “Notes on Authorship of Disputed Numbers of the Federalist,” Case and Comment , XXII (1915), 674–75. Bailey credits Madison with sole authorship of the disputed essays on the basis of the use of the word “while” by H and “whilst” by Madison. Although the evidence for Bailey’s conclusion is convincing—and there is far more evidence than he produces—his argument is destroyed by H’s occasional use of “whilst.” In essay 51, for example, H, who himself edited the essays for publication by McLean, substituted “whilst” for “and.” In essay 81, certainly written by H, the word “whilst” is used. Edward G. Bourne (see note 35), to give another example, offers as evidence for Madison’s authorship of essay 56 his use of the word “monitory,” which, according to Bourne, was “almost a favorite word with Madison.” Yet in essay 26, H, in revising the essays for publication in the McLean edition, changed “cautionary” to “monitory.” Similarly, to assign authorship on the basis of differences in the spelling of certain words in different essays—for example, “color” or “colour,” “federal” or “fœderal”—would be hazardous. The editors of the various newspapers in which the essays appeared obviously changed the spelling of certain words to conform to their individual preferences.

37 .  Similarity between a statement in one of the disputed essays and an earlier remark in the writings of either Madison or H is perhaps valid evidence. It does not seem relevant, however, to attempt to prove authorship by reference to the later writings of either of the men. As both presumably read all the essays, they might later have borrowed a statement from a number of The Federalist written by the other without being aware of its source.

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Course: US history   >   Unit 3

• The Articles of Confederation
• What was the Articles of Confederation?
• Shays's Rebellion
• The Constitutional Convention
• The US Constitution

The Federalist Papers

• The Bill of Rights
• Social consequences of revolutionary ideals
• The presidency of George Washington
• Why was George Washington the first president?
• The presidency of John Adams
• Regional attitudes about slavery, 1754-1800
• Continuity and change in American society, 1754-1800
• Creating a nation
• The Federalist Papers was a collection of essays written by John Jay, James Madison, and Alexander Hamilton in 1788.
• The essays urged the ratification of the United States Constitution, which had been debated and drafted at the Constitutional Convention in Philadelphia in 1787.
• The Federalist Papers is considered one of the most significant American contributions to the field of political philosophy and theory and is still widely considered to be the most authoritative source for determining the original intent of the framers of the US Constitution.

The Articles of Confederation and Constitutional Convention

• In Federalist No. 10 , Madison reflects on how to prevent rule by majority faction and advocates the expansion of the United States into a large, commercial republic.
• In Federalist No. 39 and Federalist 51 , Madison seeks 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,” emphasizing the need for checks and balances through the separation of powers into three branches of the federal government and the division of powers between the federal government and the states. 4 ‍  
• In Federalist No. 84 , Hamilton advances the case against the Bill of Rights, expressing the fear that explicitly enumerated rights could too easily be construed as comprising the only rights to which American citizens were entitled.

What do you think?

• For more on Shays’s Rebellion, see Leonard L. Richards, Shays’s Rebellion: The American Revolution’s Final Battle (Philadelphia: University of Pennsylvania Press, 2002).
• Bernard Bailyn, ed. The Debate on the Constitution: Federalist and Anti-Federalist Speeches, Articles, and Letters During the Struggle over Ratification; Part One, September 1787 – February 1788 (New York: Penguin Books, 1993).
• See Federalist No. 1 .
• See Federalist No. 51 .
• For more, see Michael Meyerson, Liberty’s Blueprint: How Madison and Hamilton Wrote the Federalist Papers, Defined the Constitution, and Made Democracy Safe for the World (New York: Basic Books, 2008).

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The Federalist

The Federalist is a collection of short essays written by Alexander Hamilton , James Madison , and John Jay .

Hamilton became Secretary of the Treasury and remained in that position for much of Washington’s Presidency. Madison went on to be a member of the House of Representatives, Secretary of State under Thomas Jefferson, and the fourth President of the United States. John Jay served for a time as Chief Justice of the Supreme Court and then as Governor of the state of New York.

The Federalist was written in order to convince New Yorkers and Americans generally that they should ratify, or give formal consent to, the Constitution, making it officially valid. Many feared that the proposed Constitution created too strong of a central government. Defenders of the Constitution began writing in support of the Constitution, arguing that the Constitution created a stronger central government than existed under the Article of Confederation -- and for good reason -- but also that the new Constitution’s government was still carefully limited by federalism and the separation of powers. In other words, these writers claimed, the Constitution actually created the kind of government sought by its critics. The Federalist has become the most famous of these pro-Constitution writings.

The essays were originally published in the New York press between October 27, 1787 and August 13, 1788, but from the beginning, Hamilton planned to have them printed in book form, which he did in March and May of 1788. As a result, some of the essays appeared in book form even before they appeared in the press. To this day, they remain a touchstone for understanding the Constitution.

Who: Alexander Hamilton, James Madison, and John Jay

Why: To convince New Yorkers and Americans generally that they should ratify, or give formal consent to the Constitution, making it officially valid.

When: March and May of 1788.

Publishing Information: The Federalist : A Collection of Essays, written in Favour of the New Constitution, as Agreed Upon by the Federal Convention, September 17, 1787. First Edition. In Two Volumes. New York: J. and A. M’Lean, 1788. With Michael Zinman bookplate.

Alexander Hamilton

James Madison

Learning Activities

As The Federalist explains, the Constitution tries to combine both energy and safety. It includes institutions like the President meant to provide that energy but also checks and balances to prevent the government from acting oppressively. Do you think they succeeded? Why or why not?  

The Federalist Papers (1787-1788)

Additional Text

After the Constitution was completed during the summer of 1787, the work of ratifying it (or approving it) began. As the Constitution itself required, 3/4ths of the states would have to approve the new Constitution before it would go into effect for those ratifying states.

The Constitution granted the national government more power than under the Articles of Confederation . Many Americans were concerned that the national government with its new powers, as well as the new division of power between the central and state governments, would threaten liberty.

In order to help convince their fellow Americans of their view that the Constitution would not threaten freedom, James Madison , Alexander Hamilton , and John Jay teamed up in 1788 to write a series of essays in defense of the Constitution. The essays, which appeared in newspapers addressed to the people of the state of New York, are known as the Federalist Papers. They are regarded as one of the most authoritative sources on the meaning of the Constitution, including constitutional principles such as checks and balances, federalism, and separation of powers.

Related Resources

James Madison

No other Founder had as much influence in crafting, ratifying, and interpreting the United States Constitution and the Bill of Rights as he did. A skilled political tactician, Madison proved instrumental in determining the form of the early American republic.

Alexander Hamilton

A proponent of a strong national government with an “energetic executive,” he is sometimes described as the godfather of modern big government.

John Jay epitomized the selfless leader of the American Revolution. Born to a prominent New York family, John Jay gained notoriety as a lawyer in his home state.

Federalist 10

Written by James Madison, this essay defended the form of republican government proposed by the Constitution. Critics of the Constitution argued that the proposed federal government was too large and would be unresponsive to the people.

Federalist 51

In this Federalist Paper, James Madison explains and defends the checks and balances system in the Constitution. Each branch of government is framed so that its power checks the power of the other two branches; additionally, each branch of government is dependent on the people, who are the source of legitimate authority.

Federalist 70

In this Federalist Paper, Alexander Hamilton argues for a strong executive leader, as provided for by the Constitution, as opposed to the weak executive under the Articles of Confederation. He asserts, “energy in the executive is the leading character in the definition of good government.

Would you have been a Federalist or an Anti-Federalist?

Federalist or Anti-Federalist? Over the next few months we will explore through a series of eLessons the debate over ratification of the United States Constitution as discussed in the Federalist and Anti-Federalist papers. We look forward to exploring this important debate with you! One of the great debates in American history was over the ratification […]

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The Federalist: a collection of essays, written in favour of the new Constitution, as agreed upon by the Federal Convention, September 17, 1787. : In two volumes. Vol. I[-II.]

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The federalist: addressed to the people of the state of new-york., number xxxvii. concerning the difficulties which the con|vention must have experienced in the for|mation of a proper plan..

IN reviewing the defects of the existing confede|ration, and shewing that they cannot be supplied by a government of less energy than that before the public, several of the most important principles of the latter fell of course under consideration. But as the ultimate object of these papers is to determine clearly and fully the merits of this constitution, and the expediency of adopting it, our plan cannot be compleated without taking a more critical and thorough survey of the work of the convention; without examining it on all its sides; comparing it in all its parts, and calculating its probable effects. That this remaining task may be executed under impressions conducive to a just and fair result, some reflections must in this place be indulged, which candour previously suggests. It is a misfortune, inseparable from human affairs, that public measures

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are rarely investigated with that spirit of moderation which is essential to a just estimate of their real ten|dency to advance or obstruct the public good; and that this spirit is more apt to be diminished than promoted, by those occasions which require an unusual exercise of it. To those who have been led by experience to attend to this consideration, it could not appear surprising, that the act of the convention which recommends so many important changes and innovations, which may be viewed in so many lights and relations, and which touches the springs of so many passions and interests, should find or excite dispositions unfriendly both on one side, and on the other, to a fair discussion and accurate judg|ment 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 predis|position to censure; but with a predetermination to condemn: As the language held by others betrays an opposite predetermination or bias, which must render their opinions also of little moment in the question. In placing however, these different cha|racters on a level, with respect to the weight of their opinions, I wish not to insinuate that there may not be a material difference in the purity of their intentions. It is but just to remark in favor of the latter descrip|tion, that as our situation is universally admitted to be peculiarly critical, and to require indispensibly, that something should be done for our relief, the pre|determined patron of what has been actually done, may have taken his bias from the weight of these considerations, as well as from considerations of a sinister nature. The predetermined adversary on the other hand, can have been governed by no venial motive whatever. The intentions of the first may be upright, as they may on the contrary be culpable. The views of the last cannot be upright, and must be culpable. But the truth i • • , that these papers are not addressed to persons falling under either of these

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characters. They solicit the attention of those only, who add to a sincere zeal for the happiness of their country, a temper favorable to a just estimate of the means of promoting it.

Persons of this character will proceed to an exami|nation of the plan submitted by the convention, not only without a disposition to find or to magnify faults; but will see the propriety of reflecting that a faultless plan was not to be expected. Nor will they barely make allowances for the errors which may be chargeable on the fallibility to which the conven|tion, as a body of men, were liable; but will keep in mind that they themselves also are but men, and ought not to assume an infallibility in rejudging the fallible opinions of others.

With equal readiness will it be perceived, that besides these inducements to candour, many allow|ances 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 shewn in the course of these papers, that the existing confederation is founded on prin|ciples which are fallacious; that we must consequently change this first foundation, and with it, the super-structure resting upon it. It has been shewn, that the other confederacies which could be consulted as pre|cedents, have been viciated by the same erroneous principles, and can therefore furnish no other light than that of beacons, which give warning of the course to be shunned, without pointing out that which ought to be pursued. The most that the convention could do in such a situation, was to avoid the errors suggested by the past experience of other countries, as well as of our own; and to provide a convenient mode of rectifying their own errors, as future expe|rience may unfold them.

Among the difficulties encountered by the conven|tion, a very important one must have lain, in com|bining

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the requisite stability and energy in govern|ment with the inviolable attention due to liberty, and to the republican form. Without substantially accomplishing this part of their undertaking, they would have very imperfectly fulfilled the object of their appointment, or the expectation of the public: Yet, that it could not be easily accomplished, will be denied by no one, who is unwilling to betray his ignorance of the subject. Energy in government is essential to that security against external and internal danger, and to that prompt and salutary execution of the laws, which enter into the very definition of good government. Stability in government, is essential to national character, and to the advantages annexed to it, as well as to that repose and confidence in the minds of the people, which are among the chief bless|ings of civil society. An irregular and mutable legislation is not more an evil in itself, than it is odious to the people; and it may be pronounced with assurance, that the people of this country, enlightened as they are, with regard to the nature, and interested, as the great body of them are, in the effects of good government will never be satisfied, till some remedy be applied to the vicissitudes and uncertainties, which characterize the state admini|strations. 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 prop • • rtions. 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 entrusted with it should be kept in dependence on the people, by a short dura|tion 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

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frequent return of electors, and a frequent change of measures, from a frequent change of men; whilst energy in government requires not only a certain duration of power, but the execution of it by a single hand. How far the convention may have succeeded in this part of their work, will better appear on a more accurate view of it. From the cursory view, here taken, it must clearly appear to have been an arduous part.

Not less arduous most have been the task of mark|ing the proper line of partition, between the authority of the general, and that of the state governments. Every man will be sensible of this difficulty, in pro|portion 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 satis|factory precision, by all the efforts of the most acute and metaphysical philosophers. Sense, perception, judgment, desire, volition, memory, imagination, are found to be separated, by such delicate shades and minute gradations, that their boundaries have eluded the most subtle investigations, and remain a pregnant source of ingenious disquisition and con|troversy. 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 district of vegetable life from the neighbouring region of unor|ganized matter, or which marks the termination of the former and the commencement of the animal empire. A st • • ll greater obscurity lies in the dis|tinctive characters, by which the objects in each of these great departments of nature have been arranged and assorted. When we pass from the works of nature, in which all the delineations are perfectly

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accurate, and appear to be otherwise only from the imperfection of the eye which surveys them, to the institutions of man, in which the obscurity arises as well from the object itself, as from the organ by which it is contemplated; we must perceive the necessity of moderating still farther our expectations and hopes from the efforts of human sagacity. Expe|rience 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 pro|vinces, the legislative, executive and judiciary; or even the privileges and powers of the different legis|lative branches. Questions daily occur in the course of practice, which prove the obscurity which reigns in these subjects, and which puzzles the greatest adepts in political science. The experience of ages, with the continued and combined labors of the most enlightened legislators and jurists, have been equally unsuccessful in delineating the several objects and limits of different codes of laws and different tri|bunals of justice. The precise extent of the common law, the statute law, the maritime law, the ecclesi|astical 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 fre|quent and intricate discussions, sufficiently denoting the indeterminate limits by which they are respec|tively 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

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through which the conceptions of men are conveyed to each other, adds a fresh embarrasment. 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 appropriated to them. But no language is so copious as to supply words and phrases for every complex idea, or so correct as not to include many equivocally denoting different ideas. Hence it must happen, that however accurately objects may be discriminated in themselves, and however accurately the discrimination may be con|sidered, the definition of them may be rendered inaccurate by the inaccuracy of the terms in which it is delivered. And this unavoidable inaccuracy must be greater or less, according to the complexity and novelty of the objects defined. When the Almighty himself condescends to address mankind in their own language, his meaning luminous as it must be, is rendered dim and doubtful, by the cloudy medium through which it is communicated. Here then are three sources of vague and incorrect definitions; indistinctness of the object, imperfection of the organ of conception, inadequateness of the vehicle of ideas. Any one of these must produce a certain degree of obscurity. The convention, in delineating the boun|dary between the federal and state jurisdictions, must have experienced the full effect of them all.

To the difficulties already mentioned, may be added the interfering pretensions of the larger and smaller states. We cannot err in supposing that the former would contend for a participation in the government, fully proportioned to their superior wealth and importance; and that the latter would not be less tenacious of the equality at present enjoyed by them. We may well suppose that neither side would entirely yield to the other, and consequently that the struggle could be terminated only by com|promise. It is extremely probable also, that after

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the ratio of representation had been adjusted, this very compromise must have produced a fresh struggle between the same parties, to give such a turn to the organization of the government, and to the distri|bution of its powers, as would increase the impor|tance of the branches, in forming which they had respectively obtained the greatest share of influence. There are features in the constitution which warrant each of these suppositions; and as far as either of them is well founded, it shews that the convention must have been compelled to sacrifice theoretical pro|priety to the force of extraneous considerations.

Nor could it have been the large and small states only which would marshal themselves in opposition to each other on various poin • • s. Other combinations, resulting from a difference of local position and policy, must have created additional difficulties. As every state may be divided into different districts, and its citizens into different classes, which give birth to contending interests and local jealousies; so the different parts of the United States are distin|guished from each other, by a variety of circum|stances, which produce a like effect on a larger scale. And although this variety of interests, for reasons sufficiently explained in a former paper, may have a salutary influence on the administration of the govern|ment when formed; yet every one must be sensible of the contrary influence which must have been expe|rienced 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 struc|ture and regular symmetry, which an abstract view of the subject might lead an ingenious theorist to bestow on a constitution planned in his closet or in his imagination? The real wonder is, that so many difficulties should have been surmounted; and sur|mounted with an unanimity almost as unprecedented as it must have been unexpected. It is impossible for

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any man of candor to reflect on this circumstance, without partaking of the astonishment. It is impos|sible for the man of pious reflection not to perceive in it, a finger of that Almighty Hand which has been so frequently and signally extended to our relief in the critical stages of the revolution. We had occasion in a former paper, to take notice of the repeated trials which have been unsuccessfully made in the United Netherlands, for reforming the baneful and notorious vices of their constitution. The history of almost all the great councils and consultations, held among mankind for reconciling their discordant opinions, assuaging their mutual jealousies, and adjusting their respective interests, is a history of factions, contentions and disappointments; and may be classed among the most dark and degrading pic|tures which display the infirmities and depravities of the human character. If, in a few scattered instances, a brighter aspect is presented, they serve only as exceptions to admonish us of the general truth; and by their lustre to darken the gloom of the adverse prospect to which they are contrasted. In revolving the causes from which these exceptions result, and applying them to the particular 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 animosities; the diseases most incident to deliberative bodies, and most apt to contaminate their proceedings. The second con|clusion is, that all the deputations 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.

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Number xxxviii. 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 antient history, in which government has been established with deliberation and consent, the task of framing it has not been committed to an assembly of men; but has been performed by some individual citizen of pre-eminent wisdom and approved integrity. Minos, we learn, was the pri|mitive founder of the government of Crete; as Zaleucus was of that of the Locrians. Theseus first, and after him Draco and Solon, instituted the govern|ment of Athens. Lycurgus was the lawgiver of Sparta. The foundation of the original government of Rome was laid by Romulus; and the work com|pleated by two of his 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 reform, which he alledged 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 received its first birth from Achaeus, and its second from Aratus. What degree of agency these reputed lawgivers might have in their respective establish|ments, or how far they might be cloathed with the legitimate authority of the people, cannot in every instance be ascertained. In some, however, the pro|ceeding was strictly regular. Draco appears to have been entrusted by the people of Athens, with inde|finite powers to reform its government and laws.

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And Solon, according to Plutarch, was in a manner compelled by the universal suffrage of his fellow citizens, to take upon him the sole and absolute power of new modelling the constitution. The pro|ceedings under Lycurgus were less regular; but as far as the advocates for a regular reform could prevail, they all turned their eyes towards the single efforts of that celebrated patriot and sage, instead of seeking to bring about a revolution, by the intervention of a deliberative body of citizens. Whence could it have proceeded that a people, jealous as the Greeks were of their liberty, should so far abandon the rules of caution, as to place their destiny in the hands of a single citizen? Whence could it have proceeded that the Athenians, a people who would not suffer an army to be commanded by fewer than ten generals, and who required no other proof of danger to their liberties than the illustrious merit of a fellow citizen, should consider one illustrious citizen as a more eligible depositary of the fortunes of themselves and their posterity, than a select body of citizens, from whose common deliberations more wisdom, as well as more safety, might have been expected? These questions cannot be fully answered without supposing that the fears of discord and disunion among a number of counsellors, exceeded the apprehension of treachery or incapacity in a single individual. History informs us likewise of the difficulties with which these cele|brated 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 temporising policy, confessed that he had not given to his countrymen the government best suited to their happiness, but most tolerable to their prejudices. And Lycurgus, more true to his object, was under the necessity of mixing a portion of violence with the authority of superstition; and of securing his final success, by a voluntary renunciation, first of his country, and then

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of his life. If these lessons teach us, on one hand, to admire the improvement made by America on the ancient mode of preparing and establishing regular plans of government; they serve not less on the other, to admonish us of the hazards and difficulties incident to such experiments, and of the great imprudence of unnecessarily multiplying them.

Is it an unreasonable co • • jecture that the errors which may be contained in the plan of the convention are such as have resulted rather from the defect of antecedent experience on this complicated and difficult subject, than from a want of accuracy or care in the investigation of it; and consequently such as will not be ascertained until an actual trial shall have pointed them out? This conjecture is rendered probable not only by many considerations of a general nature, but by the particular case of the articles of confederation. It is observable that among the numerous objections and amendments suggested by the several states, when these articles were submitted for their ratification, not one is found which alludes to the great and radical error, which on actual trial has discovered itself. And if we except the observations which New-Jersey was led to make rather by her local situ|ation than by her peculiar foresight, it may be ques|tioned whether a single suggestion was of sufficient moment to justify a revision of the system. There is abundant reason nevertheless to suppose that imma|terial as these objections were, they would have been adhered to with a very dangerous inflexibility in some states, had not a zeal for their opinions and supposed interests, been stifled by the more powerful sentiment of self-preservation. One state, we may remember, persisted for several years in refusing her concurrence, although the enemy remained the whole period at our gates, or rather in the very bowels of our country. Nor was her pliancy in the end effected by a less motive than the fear of being chargeable with protracting the public calamities, and endan|gering

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the event of the contest. Every candid reader will make the proper reflections on these important facts.

A patient who finds his disorder daily growing worse; and that an efficacious remedy can no longer be delayed without extreme danger; after coolly revolving his situation, and the characters of different physicians, selects and calls in such of them as he judges most capable of administering relief, and best entitled to his confidence. The physicians attend: The case of the patient is carefully examined: a consultation is held. They are unanimously agreed that the symp|toms are critical, but that the case, with proper and timely relief, is so far from being desperate, that it may be made to issue in an improvement of his consti|tution. They are equally equanimous in prescribing the remedy by which this happy effect is to be produced. The prescription is no sooner made known however, than a number of persons interpose, and without denying the reality or danger of the disorder, assure the patient that the prescription will be poison to his constitution, and forbid him under pain of certain death to make use of it. Might not the patient reasonably demand before he ventured to follow this advice, that the authors of it should at least agree among themselves, on some other remedy to be substi|tuted? And if he found them differing as much from one another, as from his first counsellors, would he not act prudently, in trying the experiment unani|mously recommended by the latter, rather than in hearkening to those who could neither deny the neces|sity of a speedy remedy, nor agree in proposing one?

Such a patient, and in such a situation is America at this moment. She has been sensible of her malady. She has obtained a regular and unanimous advice from men of her own deliberate choice. And she is warned by others against following this advice, under pain of the most fatal consequences. Do the monitors deny the reality of her danger? No. Do they deny the

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necessity of some speedy and powerful remedy? No. Are they agreed, are any two of them agreed in their objections to the remedy proposed, or in the proper one to be substituted? Let them speak for themselves. This one tells us that the proposed constitution ought to be rejected, because it is not a confederation of the states, but a government over individuals. Another admits that it ought to be a government over indivi|duals, to a certain extent, but by no means to the extent proposed. A third does not object to the government over individuals or to the extent proposed, but to the want of a bill of rights. A fourth concurs in the absolute necessity of a bill of rights, but contends that it ought to be declaratory not of the personal rights of individuals, but of the rights reserved to the states in their political capacity. A fifth is of opinion that a bill of rights of any sort would be superfluous and misplaced, and that the plan would be unexceptionable, but for the fatal power of regu|lating 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 expence from the number of persons who are to administer the new government. From another quarter, and some|times 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 objectionable, if the number and the expence 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 direct and irresistible tendency to monarchy. That is equally sure, it will

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end in aristocracy. Another is puzzled to say which of these shapes it will ultimately assume, but sees clearly it must be one or other of them. Whilst a fourth is not wanting, who with no less confidence affirms that the constitution is so far from having a bias towards either of these dangers, that the weight on that side will not be sufficient to keep it upright and firm against its opposite propensities. With another class of adversaries to the constitution, the language is that the legislative, executive and judiciary depart|ments are intermixed in such a manner as to contradict all the ideas of regular government, and all the requisite precautions in favour of liberty. Whilst this objection circulates in vague and general expres|sions, there are not a few who lend their sanction to it. Let each one come forward with his particular explanation and scarce 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 appointing to offices, instead of vesting this execu|tive power in the executive, alone, is the vicious part of the organisation. To another, the exclusion of the house of representatives, whose numbers alone could be a due security against corruption and partiality in the exercise of such a power, is equally obnoxious. With another, the admission of the president into any share of a power which must ever be a dangerous engine in the hands of the executive magistrate, is an unpardonable violation of the maxims of republican jealousy. No part of the arrangement according to some is more admissible than the trial of impeachments by the senate, which is alternately a member both of the legislative and executive departments, when this power so evidently belonged to the judiciary depart|ment. We concur fully, reply others, in the objection to this part of the plan, but we can never agree that a reference of impeachments to the judiciary authority would be an amendment of the error. Our principal dislike to the organisation arises from the extensive

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powers already lodged in that department. Even among the zealous patrons of a council of state, the most irreconcilable variance is discovered concerning the mode in which it ought to be constituted. The demand of one gentleman is that the council should consist of a small number, to be appointed by the most numerous branch of the legislature. Another would prefer a larger number, and considers it as a fundamental condition that the appointment should be made by the president himself.

As it can give no umbrage to the writers against the plan of the federal constitution, let us suppose that as they are the most zealous, so they are also the most sagacious of those who think the late convention were unequal to the task assigned them, and that a wiser and better plan might and ought to be substituted. Let us further suppose that their country should concur both in this favourable opinion of their merits, and in their unfavourable opinion of the convention; and should accordingly proceed to form them into a second convention, with full powers and for the express pur|pose 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 public, would not stand as fair a chance for immortality, as Lycurgus gave to that of Sparta, by making its change to depend on his own return from exile and death, if it were to be immediately adopted, and were to continue in force, not until a BETTER, but until ANOTHER should be agreed upon by this new assembly of law-givers.

It is a matter both of wonder and regret, that those who raise so many objections against the new

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constitution, should never call to mind the defects of that which is to be exchanged for it. It is not necessary that the former should be perfect; it is sufficient that the latter is more imperfect. No man would refuse to give brass for silver or gold, because the latter had some alloy in it. No man would refuse to quit a shattered and tottering habitation, for a firm and commodious building, because the latter had not a porch to it; or because some of the rooms might be a little larger or smaller, or the cieling a little higher or lower than his fancy would have planned them. But waving illustrations of this sort, is it not mani|fest that most of the capital objections urged against the new system, lie with tenfold weight against the existing confederation? Is an indefinite power to raise money dangerous in the hands of a federal government? The present congress can make requi|sitions to any amount they please; and the states are constitutionally bound to furnish them; they can emit bills of credit as long as they will pay for the paper; they can borrow both abroad and at home, as long as a shilling will be lent. Is an indefinite power to raise troops dangerous? The confederation gives to congress that power also; and they have already begun to make use of it. Is it improper and unsafe to intermix the different powers of govern|ment in the same body of men? Congress, a single body of men, 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 confederation places them both in the hands of congress. Is a bill of rights essential to liberty? The confederation has no bill of rights. Is it an objection against the new constitution, that it empowers the senate with the concurence of the executive to make treaties which are to be the laws of the land? The existing congress, without any such controul, can make treaties which they themselves have declared, and most of the states have

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recognized, to be the supreme law of the land. Is the importation of slaves permitted by the new con|stitution for twenty years? By the old, it is permit|ted 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 confe|deration is chargeable with the still greater folly of declaring certain powers in the federal government to be absolutely necessary, and at the same time render|ing them absolutely nugatory; And in the next place, that if the union is to continue, and no better govern|ment be substituted, effective powers must either be granted to or assumed by the existing congress, in either of which events the contrast just stated will hold good. But this is not all. Out of this lifeless mass has already grown an excrescent power, which tends to realize all the dangers that can be apprehended from a defective construction of the supreme govern|ment of the union. It is now no longer a point of speculation and hope that the western territory is a mine of vast wealth to the United States; and al|though it is not of such a nature as to extricate them from their present distresses, or for some time to come, to yield any regular supplies for the public expences, yet must it hereafter be able under proper manage|ment 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 propor|tion of this fund has been already surrendered by individual states; and it may with reason be expected, that the remaining states will not persist in witholding 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

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have assumed the administration of this stock. They have began to render it productive. Congress have undertaken to do more, they have proceeded to form new states; to erect temporary governments; to appoint officers for them; and to prescribe the con|ditions 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 of the latter, as no less necessary to guard the union against the future powers and resour|ces of a body constructed like the existing congress, than to save it from the dangers threatened by the present impotency of that assembly?

I mean not by any thing here said to throw censure on the measures which have been pursued by congress. I am sensible they could not have done otherwise. The public interest, the necessity of the case, imposed upon them the task of overleaping their constitutional limits. But is not the fact an alarming proof of the danger resulting from a government which does not possess regular powers commensurate to its objects? A dissolution or usurpation is the dreadful dilemma to which it is continually exposed.

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Number xxxix. 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 introduce a candid survey of the plan of government reported by the convention, we now proceed to the execution of that part of our undertaking. The first question that offers itself is, whether the general form and aspect of the govern|ment be strictly republican? It is evident that no other form would be reconcileable with the genius of the people of America; with the fundamental princi|ples of the revolution; or with that honorable deter|mination, which animates every votary of freedom, to rest all our political experiments on the capacity of mankind for self-government. If the plan of the convention therefore be found to depart from the republican character, its advocates must abandon it as no longer defensible.

What then are the distinctive characters of the republican form? Were an answer to this question to be sought, not by recurring to principles, but in the application of the term by political writers, to the constitutions of different states, no satisfactory one would ever be found. Holland, in which no particle of the supreme authority is derived from the people, has passed almost universally under the denomination of a republic. The same title has been bestowed on Venice, where absolute power over the great body of the people, is exercised in the most absolute manner, by a small body of hereditary nobles. Poland which is a mixture of aristocracy and of monarchy in their worst forms, has been dignified with the same appellation. The government of England, which has one republican

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branch only, combined with a hereditary aristocracy and monarchy, has with equal impropriety been frequently placed on the list of republics. These examples, which are nearly as dissimilar to each other as to a genuine republic, shew the extreme inaccuracy with which the term has been used in political disqui|sitions.

If we resort for a criterion, to the different principles on which different forms of government are established, we may define a republic to be, or at least may bestow that name on, a government which derives all its powers directly or indirectly from the great body of the people; and is administered by persons holding their offices during pleasure, for a limited period, or during good behaviour. It is essential to such a govern|ment, that it be derived from the great body of the society, not from an inconsiderable proportion, or a favored class of it; otherwise a handful of tyrannical nobles, exercising their oppressions by a delegation of their powers, might aspire to the rank of republicans, and claim for their government the honorable title of republic. It is sufficient for such a government, that the persons administering it be appointed, either directly or indirectly, by the people; and that they hold their appointments by either of the tenures just specified; otherwise every government in the United States, as well as every other popular government that has been or can be well organised 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 ap|pointment is extended to one of the co-ordinate branches of the legislature. According to all the constitutions also, the tenure of the highest offices is extended to a definite period, and in many instances, both within the legislative and executive departments, to a period

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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 • • ubject, the members of the judiciary department are to retain their offices by the firm tenure of good behaviour.

On comparing the constitution planned by the con|vention, with the standard here fixed, we perceive at once that it is in the most rigid sense conformable to it. The house of representatives, like that of one branch at least of all the state legislatures, is elected immediately by the great body of the people. The senate, like the present congress, and the senate of maryland▪ derives its appointment indirectly from the people. The president is indirectly derived from the choice of the people, according to the example in most of the states. Even the judges, with all other officers of the union, will, as in the several states, be the choice, though a remote choice, of the people them|selves. The duration of the appointments is equally conformable to the republican standard, and to the model of the state constitutions. The house of repre|sentatives is periodically elective as in all the states; and for the period of two years as in the state of south carolina. The senate is elective for the period of six years; which is but one year more than the period of the senate of Maryland; and but two more than that of the senates of New-York and Virginia. The president is to continue in office for the period of four years; as in New-York and Delaware, the chief magistrate is elected for three years, and in South Carolina for two years. In the other states the election is annual. In several of the states however, no explicit provi|sion is made for the impeachment of the chief magis|trate. And in Delaware and Virginia, he is not impeachable till out of office. The president of the United States is impeachable at any time during his continuance in office. The tenure by which the judges are to hold their places, is, as it unquestionably ought to be, that of good behaviour. The tenure of the

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ministerial offices generally will be a subject of legal regulation, conformably to the reason of the case, and the example of the state constitutions.

Could any further proof be required of the republi|can 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 govern|ments; and in its express guaratee of the republican form to each of the latter.

But it was not sufficient, say the adversaries of the proposed constitution, for the convention to adhere to the republican form. They ought with equal care, to have preserved the federal form, which regards the union as a confederacy of sovereign states; instead of which, they have framed a national government, which regards the union as a consolidation of the states. And it is asked by what authority this bold and radical in|novation was undertaken. The handle which has been made of this objection requires, that it should be examined with some precision.

Without enquiring into the accuracy of the distinc|tion on which the objection is founded, it will be necessary to a just estimate of its force, first to ascertain the real character of the government in question; secondly, to enquire how far the convention were authorised to propose such a government; and thirdly, how far the duty they owed to their country, could supply any defect of regular authority.

First. In order to ascertain the real character of the government it may be considered in relation to the foundation on which it is to be established; to the sources from which its ordinary powers are to be drawn to the operation of those powers; to the extent of them; and to the authority by which future changes in the government are to be introduced.

On examining the first relation, it appears on one hand that the constitution is to be founded on the assent and ratification of the people of America, given by deputies elected for the special purpose; but on the

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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 esta|blishing the constitution, will not be a national but a federal act.

That it will be a federal and not a national act, as these terms are understood by the objectors, the act of the people as forming so many independent states, not as forming one aggregate nation is obvious from this single consideration, that it is to result neither from the decision of a majority of the people of the union, nor from that of a majority of the states. It must result from the unanimous assent of the several states that are parties to it, differing no other wise 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 consider|ing 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

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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 parti|cular 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 soci|eties; and these will be represented on the principle of equality in the senate, as they now are in the exist|ing 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 po|litical characters. The votes allotted to them, are in a compound 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 cha|racter, presenting at least as many federal as national features.

The difference between a federal and national go|vernment, as it relates to the operation of the govern|ment , is, by the adversaries of the plan of the conven|tion, supposed to consist in this, that in the former, the powers operate on the political bodies composing the confederacy, in their political capacities; in the latter, on the individual citizens composing the nation, in their individual capacities. On trying the constitution by this criterion, it falls under the national , not the federal character; though perhaps not so compleatly as has been understood. In several cases, and particularly in the trial of controversies to which states may be parties, they must be viewed and proceeded against in their collective and political capacities only. But the operation of the govern|ment

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on the people in their individual capacities, in its ordinary and most essential proceedings, will on the whole, in the sense of its opponents, designate it in this relation, a national government.

But if the government be national with regard to the operation of its powers, it changes its aspect again when we contemplate it in relation to the extent of its powers. The idea of a national government in|volves 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 go|vernment. Among a people consolidated into one nation, this supremacy is compleatly vested in the national legislature. Among communities united for particular purposes, it is vested partly in the gene|ral, and partly in the municipal legislatures. In the former case, all local authorities are subordinate to the supreme; and may be controuled, directed, or abolished by it at pleasure. In the latter, the local or municipal authorities form distinct and inde|pendent portions of the supremacy, no more subject within their respective spheres to the general autho|rity, 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 enume|rated objects only, and leaves to the several states a residuary and inviolable sovereignty over all other objects. It is true that in controversies relating to the boundary between the two jurisdictions, the tri|bunal which is ultimately to decide, is to be estab|lished under the general government. But this does not change the principle of the case. The decision is to be impartially made, according to the rules of the constitution; and all the usual and most effectual precautions are taken to secure this impartiality. Some such tribunal is clearly essential to prevent an appeal to the sword, and a dissolution of the com|pact; and that it ought to be established under the

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general, rather than under the local governments; or to speak more properly, that it could be safely established under the first alone, is a position not likely to be combated.

If we try the constitution by its last relation, to the authority by which amendments are to be made, we find it neither wholly national , nor wholly federal . Were it wholly national, the supreme and ultimate authority would reside in the majority of the people of the union; and this authority would be compe|tent at all times, like that of a majority of every na|tional society, to alter or abolish its established go|vernment. 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 requir|ing more than a majority, and particularly, in comput|ing the proportion by states , not by citizens , it departs from the national , and advances towards the federal character: In rendering the concurrence of less than the whole number of states sufficient, it loses again the federal , and partakes of the national character.

The proposed constitution therefore, 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.

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Number xl. the same objection further examined..

THE second point to be examined is, whether the convention were authorised to frame and pro|pose this mixed constitution.

The powers of the convention ought in strictness to be determined by an inspection of the commissions given to the members by their respective constituents. As all of these however, had reference, either to the recommendation from the meeting at Annapolis in September, 1786, or to that from congress in Fe|bruary, 1787, it will be sufficient to recur to these particular acts.

ap|pointment of commissioners to take into consider|ation the situation of the United States, to devise such further provisions as shall appear to them ne|cessary to render the constitution of the federal go|vernment adequate to the exigencies of the union ; and to report such an act for that purpose, to the United States in congress assembled, as, when agreed to by them, and afterwards confirmed by the legislature of every state, will effectually pro|vide for the same.

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 legisla|tures of the several states: And whereas experi|ence 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 dele|gates in congress, have suggested a convention for

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the purposes expressed in the following resolution; and such convention appearing to be the most pro|bable mean of establishing in these states, a firm national government .

Resolved, That in the opinion of congress, it is expedient, that on the 2d Monday in May next, a convention of delegates, who shall have been appointed by the several states, be held at Phila|delphia, for the sole and express purpose of revis|ing the articles of confederation , and reporting to congress and the several legislatures, such alter|nations and provisions therein , as shall, when agreed to in congress, and confirmed by the states, ren|der the federal constitution adequate to the exigencies of government and the preservation of the union .

From these two acts it appears, 1st. that the ob|ject of the convention was to establish in these states, a firm national government ; 2d. that this government was to be such as would be adequate to the exigencies of government and the preservation of the union ; 3d. that these purposes were to be effected by alterations and provisions in the articles of confederation , as it is expressed in the act of congress, or by such further provisions as should appear necessary , as it stands in the recommendatory act from Annapolis; 4th. that the alterations and provisions were to be reported to congress, and to the states, in order to be agreed to by the former, and confirmed by the latter.

From a comparison and fair construction of these several modes of expression, is to be deduced the authority under which the convention acted. They were to frame a national government , adequate to the exigencies of government and of the union , and to re|duce 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 pos|sible, to be allowed some meaning, and be made to

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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 im|portant part; the means should be sacrificed to the end, rather than the end to the means.

Suppose then that the expressions defining the authority of the convention, were irreconcileably at variance with each other; that a national and ade|quate government could not possibly, in the judgment of the convention, be effected by alterations and pro|visions in the articles of confederation , which part of the definition ought to have been embraced, and which rejected? Which was the more important, which the less important part? Which the end, which the means? Let the most scrupulous expositors of delegated powers; let the most inveterate ob|jectors against those exercised by the convention, answer these questions. Let them declare, whether it was of most importance to the happiness of the people of America, that the articles of confederation should be disregarded, and an adequate government be provided, and the union preserved; or that an adequate government should be omitted, and the ar|ticles 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 establish|ment of a government, adequate to the national hap|piness, was the end at which these articles themselves originally aimed, and to which they ought, as insuffi|cient means, to have been sacrificed.

But is it necessary to suppose that these expressions are absolutely irreconciliable to each other; that no alterations or provisions in the articles of the confe|deration , could possibly mould them into a national and adequate government; into such a governmen • • as has been proposed by the convention?

No stress it is presumed will in this case be laid o • • the title , a change of that could never be deemed a • •

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exercise of ungranted power. Alterations in the body of the instrument, are expressly authorised. New provisions therein are also expressly authorised. Here then is a power to change the title; to insert new articles; to alter old ones, Must it of necessity be admitted that this power is infringed, so long as a part of the old articles remain? Those who maintain the affirmative, ought at least to mark the boundary between authorised and usurped innovations, between that degree of change which lies within the compass of alterations and further provisions ; and that which amounts to a transmutation of the government. Will it be said that the alterations ought not to have touched the substance of the confederation? The states would never have appointed a convention with so much solemnity, nor described its objects with so much lati|tude, if some substantial reform had not been in con|templation. Will it be said that the fundamental principles of the confederation were not within the purview of the convention, and ought not to have been varied? I ask what are these principles? Do they require that in the establishment of the constitu|tion, the states should be regarded as distinct and in|dependent sovereigns? They are so regarded by the constitution proposed. Do they require that the members of the government should derive their ap|pointment from the legislatures, not from the people of the states? One branch of the new government is to be appointed by these legislatures; and under the confederation the delegates to congress may all be appointed immediately by the people, and in two states are actually so appointed. Do they require that the powers of the government should act on the states, and not immediately on individuals? In some instances, as has been shewn, the powers of the new government will act on the states in their collective characters. In some instances also those of the exist|ing government act immediately on individuals: In

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cases of capture, of piracy, of the post-office, of coins weights and measures, of trade with the Indians, of claims under grants of land by different states, and above all, in the case of trials by courts-martial in the army and navy, by which death may be inflicted without the intervention of a jury, or even of a civil magistrate; in all these cases the powers of the con|federation operate immediately on the persons and interests of individual citizens. Do these fundamen|tal principles require particularly that no tax should be levied without the intermediate agency of the states? The confederation itself authorises a direct tax to a certain extent on the post-office. The power of coinage has been so construed by congress, as to levy a tribute immediately from that source also. But pretermitting these instances, was it not an acknow|ledged 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 ge|neral 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 recog|nize the principle of the innovation? Do these prin|ciples 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 un|enumerated cases, are left in the enjoyment of their sovereign and independent jurisdiction.

The truth is, that the great principles of the con|stitution proposed by the convention, may be consi|dered less as absolutely new, than as the expansion of principles which are found in the articles of confe|deration. The misfortune under the latter system

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has been, that these principles are so feeble and con|fined as to justify all the charges of inefficiency which have been urged against it; and to require a degree of enlargement which gives to the new system, the aspect of an entire transformation of the old.

In one particular it is admitted that the convention have departed from the tenor of their commission. Instead of reporting a plan requiring the confirmation of all the states , they have reported a plan which is to be confirmed 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 absur|dity of subjecting the sate of twelve states, to the perverseness or corruption of a thirteenth; from the example of inflexible opposition given by a majority of one sixtieth of the people of America, to a measure approved and called for by the voice of twelve states comprising fifty-nine sixtieths of the people; an example still fresh in the memory and indignation of every citizen who has felt for the wounded honor and prosperity of his country. As this objection therefore, has been in a manner waved by those who have cri|ticised the powers of the convention, I dismiss it without further observation.

The third point to be enquired into is, how far con|siderations of duty arising out of the case itself, could have supplied any defect of regular authority.

In the preceding enquiries, the powers of the con|vention have been analised 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 con|stitution 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 under|stood

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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 m • • ke so singular and solemn an experiment, for correcting the errors of a system by which this crisis had been produced; that they were no less deeply and unanimously convinced, that such a reform as they have proposed, was absolutely necessary to effect the purposes of their appointment. It could not be unknown to them, that the hopes and ex • • ec|tations 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 agi|tated the minds and bosoms of every external and internal foe to the liberty and prosperity of the United States. They had seen in the origin and progress of the experiment, the alacrity with which the proposition , made by a single state (Virginia) towards a partial amendment of the confederation, had been attended to and promoted. They had seen the liberty assumed by a very few deputies, from a very few states, convened at Annapolis, of recom|mending a great and critical object, wholly foreign to their commission, not only justified by the public opinion, but actually carried into effect, by twelve out of the Thirteen States. They had seen in a variety of instances, assumptions by congress not only of recommendatory, but of operative powers, warranted

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abolish or alter their governments as to them shall seem most likely to effect their safety and happiness ;

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warranted by their commission, would not less excite animadversion, than a recommendation at once of a measure fully commensurate to the na|tional exigenc • • es.

Had the convention under all these impressions, and in the midst of all these considerations, instead of exercising a manly confidence in their country, by whose confidence they had been so peculiarly distin|guished, and of pointing out a system capable in their judgment of securing its happiness, taken the cold and sullen resolution of disappointing its ardent hopes of sacrificing substance to forms, of committing the dearest interests of their country to the uncertainties of delay, and the hazard of events; let me ask the man, who can raise his mind to one elevated con|ception; who can awaken in his bosom, one patri|otic emotion, what judgment ought to have been pro|nounced 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 controul, let me then ask what sentence he has in re|serve 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 unauthorised interposition.

But that the objectors may be disarmed of every pretext, it shall be granted for a moment, that the convention were neither authorised 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 re|jected? If according to the noble precept, it be law|ful to accept good advice even from an enemy, shall we set the ignoble example of refusing such advice even when it is offered by our friends? The prudent

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enquiry in all cases, ought surely to be not so much from whom the advice comes, as whether the advice be good .

The sum of what has been here advanced and proved, is that the charge against the convention of exceeding their powers, except in one instance little urged by the objectors, has no foundation to support it; that if they had exceeded their powers, they were not only warranted but required, as the confidential servants of their country, by the circumstances in which they were placed, to exercise the liberty which they assumed, and that finally, if they had violated both their powers, and their obligations in proposing a constitution, this ought nevertheless to be embra|ced, if it be calculated to accomplish the views and happiness of the people of America. How far this character is due to the constitution, is the subject under investigation.

NUMBER XLI. 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 of view. The FIRST relates to the sum or quantity of power which it vests in the government, including the restraints imposed on the states. The SECOND, to the particular structure of the government, and the distribution of this power, among its several branches.

Under the first view of the subject two important questions arise; 1. Whether any part of the powers transferred to the general government be unnecessary or improper? 2. Whether the entire mass of them be dangerous to the portion of jurisdiction left in the several states?

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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 arguments employed against the extensive powers of the government, that the authors of them have very little considered how far these powers were necessary means of attaining a necessary end. They have chosen rather to dwell on the incon|veniences which must be unavoidably blended with all political advantages; and on the possible abuses which must be incident to every power or trust of which a beneficial use can be made. This method of handling the subject cannot impose on the good sense of the people of America. It may display the subtlety of the writer; it may open a boundless field for rhetoric and declamation; it may inflame the passions of the unthinking, and may confirm the pre|judices of the misthinking. But cool and candid people will at once reflect, that the purest of human blessings must have a portion of alloy in them; that the choice must always be made, if not of the lesser evil, at least of the GREATER, not the PERFECT good; and that in every political institution, a power to advance the public happiness involves a discretion which may be misapplied and abused. They will see therefore that in all cases, where power is to be conferred, the point first to be decided is whether such a power be necessary to the public good; as the next will be, in case of an affirmative decision, to guard as effectually as possible against a perversion of the power to the public detriment.

That we may form a correct judgment on this sub|ject, 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 fo|reign danger; 2. Regulation of the intercourse with

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foreign nations; 3. Maintenance of harmony and proper intercourse among the states; 4. Certain mis|cellaneous objects of general utility; 5. Restraint of the states from certain injurious acts; 6. Provisions for giving due efficacy to all these powers.

The powers falling within the first class, are those of 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 pri|mitive objects of civil society. It is an avowed and essential object of the American union. The powers requisite for attaining it, must be effectually confided to the federal councils.

Is the power of declaring war necessary? No man will answer this question in the negative. It would be superfluous therefore to enter into a proof of the affirmative. The existing confederation establishes this power in the most ample form.

Is the power of raising armies, and equipping fleets necessary? This is involved in the foregoing power. It is involved in the power of self-defence.

But was it necessary to give an INDEFINITE POWER of raising TROOPS, as well as providing fleets; and of maintaining both in PEACE, as well as in WAR?

The answer to these questions has been too far anticipated, in another place, to admit an extensive discussion of them in this place. The answer in|deed seems to be so obvious and conclusive as scarcely to justify such a discussion in any place. With what colour of propriety could the force necessary for de|fence, 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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How could a readiness for war in time of peace be safely prohibited, unless we could prohibit in like manner the preparations and establishments of every hostile nation? The means of security can only be regulated by the means and the danger of attack. They will in fact be ever determined by these rules, and by no others. It is in vain to oppose constituti|onal barriers to the impulse of self-preservation. It is worse than in vain; because it plants in the con|stitution itself necessary usurpations of power, every precedent of which is a germe 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|prizes, to take corresponding precautions. The fifteenth century was the unhappy 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 nation except France now to disband its peace establishment, the same event might follow. The veteran legions of Rome were an overmatch for the undisciplined valour of all other nations, and rendered her mistress of the world.

Not less true is it, that the liberties of Rome pro|ved the final victim to her military triumphs, and that the liberties of Europe, as far as they ever existed, have with few exceptions been the price of her military establishments. A standing force there|fore is a dangerous, at the same time that it may be a necessary provision. On the smallest scale it has its inconveniences. On an extensive scale, its consequences may be fatal. On any scale, it is an object of laudable circumspection and precaution. A wise nation will combine all these considerations;

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and whilst it does not rashly preclude itself from any resource which may become essential to its safety, will exert all its prudence in diminishing both the necessity and the danger of resorting to one which may be inauspicious to its liberties.

The clearest marks of this prudence are stamped on the proposed constitution. The union itself which it cements and secures, destroys every pretext for a military establishment which could be dangerous. America, united with a handful of troops, or without a single soldier, exhibits a more forbidding posture to foreign ambition, than America disunited, with an hundred thousand veterans ready for combat. It was remarked on a former occasion, that the want of this pretext had saved the liberties of one nation in Europe. Being rendered by her insular situation and her maritime resources, impregnable to the armies of her 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 of the United States from the powerful nations of the world, gives them the same happy security. A dangerous establishment can never be necessary or plausible, so long as they continue a united people. But let it never for a moment be forgotten, that they are indebted for this advantage to 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 ambition of the stronger states or confederacies, will set the same example in the new, as Charles VII. did in the old world. The example will be followed here from the same motives which produced universal imitation there. Instead of deriving from our situation the precious advantage which Great-Britain has derived from hers, the face of America will be but a copy of that of the continent of Europe. It will present liberty every where crushed between standing armies and perpetual taxes. The fortunes of disunited

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America will be even more disastrous than those of Europe. The sources of evil in the latter are confined to her own limits. No superior powers of another quarter of the globe intrigue among her rival nations, inflame their mutual animosities, and render them the instruments of foreign ambition, jealousy and revenge. In America, the miseries springing from her internal jealousies, contentions and wars, would form a part only of her lot. A plentiful addition of evils would have their source in that relation in which Europe stands to this quarter of the earth, and which no other quarter of the earth bears to Europe. This picture of the consequences of disunion cannot be too highly coloured, or too often exhibited. Every man who loves peace, every man who loves his country, every man who loves liberty, ought to have it ever before his eyes, that he may cherish in his heart a due attachment to the union of America, and be able to set a due value on the means of preserving it.

Next to the effectual establishment of the union, the best possible precaution against danger from standing armies, is a limitation of the term for which revenue may be appropriated to their support. This precaution the constitution has prudently added. I will not repeat here the observations, which I flatter myself have placed this subject in a just and satisfac|tory light. But it may not be improper to take notice of an argument against this part of the con|stitution, which has been drawn from the policy and practice of Great-Britain. It is said that the con|tinuance of an army in that kingdom, requires an annual vote of the legislature; whereas the American constitution has lengthened this critical period to two years. This is the form in which the comparison is usually stated to the public: But is it a just form? Is it a fair comparison? Does the British constitution restrain the parliamentary discretion to one year? Does the American impose on the congress appro|priations

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for two years? On the contrary, it cannot be unknown to the authors of the fallacy themselves, that the British constitution fixes no limit whatever to the discretion of the legislature, and that the American ties down the legislature to two years, as the longest admissible term.

Had the argument from the British example been truly stated, it would have stood thus: The term for which supplies may be appropriated to the army establishment, though unlimited by the British con|stitution, has nevertheless in practice been limited by parliamentary discretion, to a single year. Now if in Great-Britain, where the house of commons is elected for seven years; where so great a proportion of the members are elected by so small a proportion of the people; where the electors are so corrupted by the representatives, and the representatives so corrupted by the crown, the representative body can possess a power to make appropriations to the army for an indefinite term, without desiring, or without daring, to extend the term beyond a single year; ought not suspicion herself to blush in pretending that the representatives of the United States, elected FREELY, by the WHOLE BODY of the people, every SECOND YEAR, cannot be safely entrusted with a discretion over such appropriations, expressly limited to the short period of TWO YEARS.

A bad cause seldom fails to betray itself. Of this truth, the management of the opposition to the federal government is an unvaried exemplification. But among all the blunders which have been committed, none is more striking than the attempt to enlist on that side, the prudent jealousy entertained by the people, of standing armies. The attempt has awakened fully the public attention to that impor|tant subject; and has led to investigations which must terminate in a thorough and universal conviction, not only that the constitution has provided the most effec|tual guards against danger from that quarter, but

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that nothing short of a constitution fully adequate to the national defence, and the preservation of the union, can save America from as many standing armies as it may be split into states or confederacies; and from such a progressive augmentation of these establishments in each, as will render them as bur|densome to the properties and ominous to the liberties of the people; as any establishment that can become necessary, under a united and efficient government, must be tolerable to the former, and safe to the latter.

The palpable necessity of the power to provide and maintain a navy has protected that part of the con|stitution against a spirit of censure, which has spared few other parts. It must indeed be numbered among the greatest blessings of America, that as her union will be the only source of her maritime strength, so this will be a principal source of her security against danger from abroad. In this respect our situation bears another likeness to the insular advantage of Great-Britain. The batteries most capable of re|pelling foreign enterprizes on our safety, are happily such as can never be turned by a perfidious govern|ment against our liberties.

The inhabitants of the Atlantic frontier are all of them deeply interested in this provision for naval protection, and if they have hitherto been suffered to sleep quietly in their beds; if their property has remained safe against the predatory spirit of licenci|ous adventurers; if their maritime towns have not yet been compelled to ransom themselves from the terrors of a conflagration, by yielding to the exactions of daring and sudden invaders, these instances of good fortune are not to be ascribed to the capacity of the existing government for the protection of those from whom it claims allegiance, but to causes that are fugitive and fallacious. If we except perhaps Virginia and Maryland, which are peculiarly vul|nerable on their eastern frontiers, no part of the union ought to feel more anxiety on this subject than

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New-York. Her sea coast is extensive. The 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 pre|carious 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 con|dition of America, the states more immediately exposed to these calamities, have nothing to hope from the phantom of a general government which now exists; and if their single resources were equal to the task of fortifying themselves against the dan|ger, the object to be protected would be almost con|sumed by the means of protecting them.

The power of regulating and calling forth the militia has been already sufficiently vindicated and explained.

The power of levying and borrowing money, being the sinew of that which is to be exerted in the national defence, is properly thrown into the same class with it. This power also has been examined already with much attention, and has I trust been clearly shewn 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 ex|ternal taxation, by which they mean taxes on articles imported from other countries. It cannot be doubted that this will always be a valuable • • ource of revenue, that for a considerable time, it must be a principal source, that at this moment it is an essential one.

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But we may form very mistaken ideas on this subject, if we do not call to mind in our calculations, that the extent of revenue drawn from foreign commerce, must vary with the variations both in the extent and the kind of imports, and that these variations do not correspond with the progress of population, which must be the general measure of the public wants. As long as agriculture continues the sole field of labour, the importation of manufactures must increase as the consumers multiply. As soon as domestic manufac|tures are begun by the hands not called for by agri|culture, the imported manufactures will decrease as the numbers of people increase. In a more remote stage, the imports may consist in considerable part of raw materials which will be wrought into articles for exportation, and will therefore require rather the encouragement of bounties, than to be loaded with discouraging duties. A system of government, meant for duration ought to contemplate these revolutions, and be able to accommodate itself to them.

to lay and collect taxes, duties, imposts and excises, to pay the debts, and provide for the com|mon defence and general welfare of the United States,

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 aukward a form of describing an authority to

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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 con|veyances, 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 separa|ted by a longer pause than a semicolon. If the different parts of the same instrument ought to be so expounded as to give meaning to every part which will bear it; shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent and the clear and precise expressions, be denied any signification whatsoever? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural 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 enu|meration 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 au|thors of the constitution, we must take the liberty of supposing, had not its origin with the latter.

their common defence, security of their liberties, and mutual and general welfare.

All charges of war, and all other expences, that shall be incurred for the common defence or general welfare, and allowed by the United States in con|gress

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shall be defrayed out of a common treasury, &c.

NUMBER XLII. 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 consuls; to define and punish piracies and felonies committed on the high seas, and offences against the law of nations; to regulate foreign commerce, including a power to prohibit after the year 1808, the importation of slaves, and to lay an intermediate duty of ten dollars per head, as a discouragement to such importations.

This class of powers forms an obvious and essential branch of the federal administration. If we are to be one nation in any respect, it clearly ought to be in respect to other nations.

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other public ministers and consuls,

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congress have been betrayed, or forced by the defects of the confederation into violations of their chartered authorities, would not a little surprise those who have paid no attention to the subject; and would be no inconsiderable argument in favor of the new consti|tution, which seems to have provided no less studi|ously for the lesser, than the more obvious and striking defects of the old.

The power to define and punish piracies and felonies committed on the high seas, and offences against the law of nations, belongs with equal propriety to the general government; and is a still greater improve|ment on the articles of confederation.

These articles contain no provision for the case of offences against the law of nations; and consequently leave it in the power of any indiscreet member to embroil the confederacy with foreign nations.

The provision of the federal articles on the subject of piracies and felonies, extends no farther than to the establishment of courts for the trial of these offences. The definition of piracies might perhaps, without inconveniency, be left to the law of nations; though a legislative definition of them is found in most municipal codes. A definition of felonies on the high seas is evidently requisite. Felony is a term of loose signification even in the common law of England; and of various import in the statute law of that kingdom. But neither the common, nor the statute law of that or of any other nation, ought to be a standard for the proceedin •• •• of this, unless previously made its own by legislative adoption. The meaning of the term as defined in the codes of the several states, would be as impracticable as the former would be a dishonorable and illegitimate guide. It is not precisely the same in any two of the states; and varies in each with every revision of its criminal laws. For the sake of certainty and uni|formity therefore, the power of defining felonies in this case, was in every respect necessary and proper.

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The regulation of foreign commerce, having fallen within several views which have been taken of this subject, has been too fully discussed to need addi|tional proofs here of its being properly submitted to the federal administration.

It were doubtless to be wished that the power of prohibiting the importation of slaves, had not been postponed until the year 1808, or rather that it had been suffered to have immediate operation. But it is not difficult to account either for this restriction on the general government, or for the manner in which the whole clause is expressed. It ought to be consi|dered as a great point gained in favor of humanity, that a period of twenty years may terminate for ever within these states, a traffic which has so long and so loudly upbraided the barbarism of modern policy; that within that period it will receive a considerable 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 oppres|sions of their European brethren!

Attempts have been made to pervert this clause into an objection against the constitution, by repre|senting it on one side as a criminal toleration of an illicit practice, and on another, as calculated to prevent voluntary and beneficial emigrations from Europe to America. I mention these misconstruc|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 conduct their opposition to the proposed government.

The powers included in the third class, are those which provide for the harmony and proper inter|course among the states.

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Under this head might be included the particular restraints imposed on the authority of the states, and certain powers of the judicial department; but the former are reserved for a distinct class, and the latter will be particularly examined when we arrive at the structure and organization of the government. I shall confine myself to a cursory review of the remaining powers comprehended under this third description, to wit, to regulate commerce among the several states and the Indian tribes; to coin money, regulate the value thereof and of foreign coin; to provide for the punishment of counterfeit|ing 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 man|ner in which the public acts, records and judicial proceedings of each state shall be proved, and the effect they shall have in other states, and to establish post-offices and post-roads.

The defect of power in the existing confederacy, to regulate the commerce between its several members, is in the number of those which have been clearly pointed out by experience. To the proofs and remarks which former papers have brought into view on this subject, it may be added, that without this supplemental provision, the great and essential power of regulating foreign commerce, would have been incomplete, and ineffectual. A very material object of this power was the relief of the states which import and export through other states, from the improper contributions levied on them by the latter. Were these at liberty to regulate the trade between state and state, it must be foreseen that ways would be found out, to load the articles of import and export, during the passage through their jurisdiction, with duties which would fall on the makers of the latter, and the consumers of the f •• •• m • • r: We may be assured by past experience, that such a practice would be

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introduced by future contrivances; and both by that and a common knowledge of human affairs, that it would nourish unceasing animosities, and not impro|bably terminate in serious interruptions of the public tranquility. To those who do not view the question through the medium of passion or of interest, the desire of the commercial states to collect in any form, an indirect revenue from their uncommercial neigh|bours, must appear not less impolitic than it is unfair; since it would stimulate the injured party, by resent|ment 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 immo|derate 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 merchandizes, 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 ante|cedent paper, that the practice in this as in many other instances in that confederacy, has not followed the law, and has produce • • there the mischiefs which have been foreseen here. Among the restraints imposed by the union of the Netherlands, on its members, one is, that they shall not establish impo • • ts disadvantageous to their neighbours, without the general permission.

The regulation of commerce with the Indian tribes is very properly unfettered from two limitations in the articles of confederation, which render the provision

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obscure and contradictory. The power is there restrained to Indians, no • • members of any of the states, and is not to violate or infringe the legislative right of any state within its own limits. What description of Indians are to be deemed members of a state, is not yet settled; and has been a question of frequent perplexity and contention in the federal councils. And how the trade with Indians, though not members of a state, yet residing within its legis|lative jurisdiction, can be regulated by an external authority, without so far intruding on the internal rights of legislation, is absolutely incomprehensible. This is not the only case in which the articles of confederation have inconsiderately endeavoured to accomplish impossibilities; to reconcile a partial sovereignty in the union, with complete sovereignty in the states; to subvert a mathematical axiom, by taking away a part, and letting the whole remain.

All that need be remarked on the power to coin money, regulate the value thereof, and of foreign coin, is that by providing for this last case, the con|stitution has supplied a material omission in the arti|cles 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 secu|rities as well as of the current coin, is submitted of course to that authority, which is to secure the value of both.

The regulation of weights and measures is trans|ferred 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

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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.

to all privileges and immunities of free citizens,

all the privileges of trade and commerce,

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the law of another within the jurisdiction of the other. We owe it to mere casualty, that very serious embar|rassments on this subject have been hitherto escaped. By the laws of several states, certain descriptions of aliens who had rendered themselves obnoxious, were laid under interdicts inconsistent, not only with the rights of citizenship, but with the privileges of residence. What would have been the consequence, if such persons, by residence o • • otherwise, had acquired the character of citizens under the laws of another state, and then asserted their rights as such, both to residence and citizenship within the state proscribing them? Whatever the legal consequences might have been, other consequences would pro|bably have resulted of too serious a nature, not to be provided against. The new constitution has accor|dingly with great propriety made provision against them, and all others proceeding from the defect of the confederation, on this head by authorising the general government to establish an uniform rule of naturalization throughout the United States.

The power of establishing uniform laws of bank|ruptcy, is so intimately connected with the regulation of commerce, and will prevent so many frauds where the parties or their property may lie or be removed into different states, that the expediency of it seems not likely to be drawn into question.

The power of prescribing by general laws the manner in which the public acts, records and judicial proceedings of each state shall be proved, and the effect they shall have in other states, is an evident and valuable improvement on the clause relating to this subject in the articles of confederation. The mean|ing of the latter is extremely indeterminate; and can be of little importance under any interpretation which it will bear. The power here established, may be rendered a very conven •• •• nt instrument of justice, and be particularly benefic •• •• l on the borders of con|tiguous states, where the effects liable to justice, may

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be suddenly and secretly translated in any stage of the process, within a foreign jurisdiction.

The power of establishing post-roads, must in every view be a harmless power; and may perhaps, by judicious management, become productive of great public conveniency. Nothing which tends to faci|litate the intercourse between the states, can be deemed unworthy of the public care.

NUMBER XLIII. The same View continued.

THE fourth class comprises the following miscel|laneous powers:

promote the progress of science and useful arts, by securing for a limited time, to authors and inventors, the exclusive right to their respective writings and discoveries.

The utility of this power will scarcely be ques|tioned. The copy right of authors 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 anticip • • ted the decision of this point, by laws passed at the instance of Congress.

To exercise exclusive legislation in all cases whatsoever, over such district (not exceeding ten miles square) as may by cession of particular states, and the acceptance of congress, become the seat of the government of the United States; and to exercise like authority over all places purchased by the consent of the legislature of the states, in which the same shall be, for the erection of

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forts, magazines, arsenals, dock yards, and other needful buildings.

The indispensible necessity of compleat a • • thority at the seat of government, carries its own evidence with it. It is a power exercised by every legislature of the union, I might say of the world, by virtue of its general supremacy. Without it, not only the public authority might be insulted and its proceedings be interrupted, with impunity; but a dependence of the members of the general government on the state, comprehending the seat of the government for pro|tection in the exercise of their duty, might bring on the national councils an imputation of awe or influence, equally dishonorable to the government, and dissatisfactory to the other members of the confe|deracy. This consideration has the more weight as the gradual accumulation of public improvements at the stationary residence of the government, would be both too great a public pledge to be left in the hands of a single state; and would create so many obstacles to a removal of the government, as still further to abridge its necessary independence. The extent of this federal district is sufficiently circumscribed to satisfy every jealousy of an opposite nature. And as it is to be appropriated to this use with the consent of the state ceding it; as the state will no doubt provide in the compact for the rights, and the consent of the citizens inhabiting it; as the inhabitants will find sufficient inducements of interest to become willing parties to the cession; as they will have had their voice in the election of the government which is to exercise authority over them; as a municipal legislature for local purposes, derived from their own suffrages, will of course be allowed them; and as the authority of the legislature of the state, and of the inhabitants of the ceded part of it, to concur in the cession, will be derived from the whole people of the state, in their adoption of the constitution, every imaginable objection seems to be obviated.

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The necessity of a like authority over forts, maga|zines, &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 objec|tions and scruples are here also obviated by requiring the concurrence of the states concerned, in every such establishment.

To declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted.

As treason may be committed against the United States, the authority of the United States ought to be enabled to punish it; but as new fangled and arti|ficial 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 congress, even in punish|ing it, from extending the consequences of guilt beyond the person of its author.

To admit new states into the union; but no new state shall be formed or erected within the juris|diction of any other state; nor any state be formed by the junction of two or more states, or parts of states, without the consent of the legislatures of the states concerned, as well as of the congress.

In the articles of confederation no provision is found on this important subject. Canada was to be admitted of right on her joining in the measures of the United States; and the other colonies , by which

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were evidently meant, the other British colonies, at the discretion of nine states. The eventual establish|ment of new states , seems to have been overlooked by the compilers of that instrument. We have seen the inconvenience of this omission, and the assumption of power into which congress have been led by it. With great propriety therefore has the new system supplied the defect. The general precaution that no new states shall be formed without the concurrence of the federal authority and that of the states con|cerned, is consonant to the principles which ought to govern such transactions. The particular precaution against the erection of new states, by the partition of a state without its consent, quiets the jealousy of the larger states; as that of the smaller is quieted by a like precaution against a junction of states without their consent.

To dispose of and make all needful rules and regulations respecting the territory or other pro|perty belonging to the United States, with a pro|viso that nothing in the constitution shall be so construed as to prejudice any claims of the United States, 〈◊〉 〈◊〉 of any particular state.

This is a power of very great importance, and required by considerations similar to those which shew the propriety of the former. The proviso annexed is proper in itself, and was probably rendered absolutely necessary, by jealousies and questions concerning the western territory, suffi|ciently known to the public.

To guarantee to every state in the union a republican form of government; to protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened) against domestic violence.

In a confederacy founded on republican prin|ciples, and composed of republican members, the superintending government ought clearly to possess

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As the confederate republic of Germany, says Montesquieu, consists of free cities and petty states, subject to different princes, experience shows us that it is more imperfect than that of Holland and Switzerland. Greece was un|done, he adds, as soon as the king of Macedon obtained a seat among the Amphyctions.

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government of the form which is to be guaranteed. As long therefore as the existing republican forms are continued by the states, they are guaranteed by the federal constitution. Whenever the states may chuse to substitute other republican forms, they have a right to do so, and to claim the federal guaranty for the latter. The only restriction imposed on them is, that they shall not exchange republican for anti-republican constitutions; a restriction which it is presumed will hardly be considered as a grievance.

A protection against invasion is due from every society to the parts composing it. The latitude of the expression here used, seems to secure each state not only against foreign hostility, but against ambitious or vindictive enterprizes of its more powerful neigh|bours. The history both of antient and modern confederacies, proves that the weaker members of the union ought not to be insensible to the policy of this article.

Protection against domestic violence is added with equal propriety. It has been remarked that even among the Swiss cantons, which properly speaking are not under one government, provision is made for this object; and the history of that league informs us, that mutual aid is frequently claimed and afforded; and as well by the most democratic, as the other cantons. A recent and well known event among ourselves, has warned us to be prepared for emer|gencies of a like nature.

At first view it might seem not to square with the republican theory, to suppose either that a majority have not the right, or that a minority will have the force to subvert a government; and consequently that the federal interposition can never be required but when it would be improper. But theoretic reasoning in this, as in most other cases, must be qualified by the lessons of practice. Why may not illicit combinations for purposes of violence be formed as well by a majority of a state, especially a

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small state, as by a majority of a county or a district of the same state; and if the authority of the state ought in the latter case to protect the local magi|stracy, ought not the federal authority in the former to support the state authority? Besides, there are certain parts of the state constitutions which are so interwoven with the federal constitution, that a violent blow cannot be given to the one without communicating the wound to the other. Insurrections in a state will rarely induce a federal interposition, unless the number concerned in them, bear some pro|portion to the friends of government. It will be much better that the violence in such cases should be repressed by the superintending power, than that the majority should be left to maintain their cause by a bloody and obstinate contest. The existence of a right to interpose will generally prevent the necessity of exerting it.

Is it true that force and right are necessarily on the same side in republican governments? May not the minor party possess such a superiority of pecuniary resources, of military talents and experience, or of secret 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 col|lected exertion of its strength? Nothing can be more chimerical than to imagine that in a trial of actual force, victory may be calculated by the rules which prevail in a census of the inhabitants, or which determine the event of an election! May it not happen in fine that the minority of citizens may become a majority of persons , by the accession of alien residents, of a casual concourse of adventurers, or of those whom the constitution of the state has not admitted to the rights of suffrage? I take no notice of an unhappy species of population abounding in some of the states, who during the calm of regular

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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 supe|riority 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 impar|tiality 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 govern|ments; if a project equally effectual could be esta|blished for the universal peace of mankind.

Should it be asked what is to be the redress for an insurrection pervading all the states, and comprizing a superiority of the entire force, though not a con|stitutional 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 pos|sible constitution can provide a cure.

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.

To consider all debts contracted and engage|ments 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 pro|position; and may have been inserted, among other reasons, for the satisfaction of the foreign creditors

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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 dissolv|ing its moral obligations.

Among the lesser criticisms which have been exercised on the constitution, it has been remarked that the validity of engagements ought to have been asserted in favor of the United States, as well as against them; and in the spirit which usually cha|racterises little critics, the omission has been trans|formed and magnified into a plot against the national rights. The authors of this discovery may be told, what few others need be informed of, that as engage|ments are in their nature reciprocal, an assertion of their validity on one side necessarily involves a vali|dity on the other side; and that as the article is merely declaratory, the establishment of the principle in one case is sufficient for every case. They may be further told that every constitution must limit its precautions to dangers that are not altogether ima|ginary; 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.

To provide for amendments to be ratified by three-fourths of the states, under two excep|tions only.

That useful alterations will be suggested by expe|rience, could not but be foreseen. It was requisite therefore that a mode for introducing them should be provided. The mode preferred by the convention seems to be stamped with every mark of propriety. It guards equally against that extreme facility which would render the constitution too mutable; and that extreme difficulty which might perpetuate its dis|covered faults. It moreover equally enables the general and the state governments to originate the amendment of errors as they may be pointed out by

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the experience on one side or on the other. The exception in favor of the equality of suffrage in the senate was probably meant as a palladium to the residuary sovereignty of the states, implied and secured by that principle of representation in one branch of the legislature; and was probably insisted on by the states particularly attached to that equality. The other exception must have been admitted on the same considerations which produced the privilege defended by it.

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 autho|rity of the people alone could give due validity to the constitution. To have required the unanimous ratification of the thirteen states, would have subjec|ted 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 inexcuseable.

Two questions of a very delicate nature present themselves on this occasion. 1. On what principle the confederation, which stands in the solemn form of a compact among the states, can be superceded without the unanimous consent of the parties to it? 2. What relation is to subsist between the nine or more states ratifying the constitution, and the remaining few who do not become parties to it.

The first question is answered at once by recurring to the absolute necessity of the case; to the great principle of self preservation; to the transcendent law of nature and of nature's God, which declares that the safety and happiness of society, are the objects at which all political institutions aim, and to which all such institutions must be sacrificed. Perhaps also an answer may be found without search|ing beyond the principles of the compact itself. It

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has been heretofore noted among the defects of the confederation, that in many of the states, it had received no higher sanction than a mere legislative ratification. The principle of reciprocality seems to require, that its obligation on the other states should be reduced to the same standard. A compact between independent sovereigns, founded on acts of legislative authority, can pretend to no higher validity than a league or treaty between the parties. It is an established doctrine on the subject of treaties that all the articles are mutually conditions of each other; that a breach of any one article is a breach of the whole treaty; and that a breach committed by either of the parties absolves the others; and autho|rises them, if they please, to pronounce the compact violated and void. Should it unhappily be necessary to appeal to these delicate truths for a justification for dispensing with the consent of particular states to a dissolution of the federal pact, will not the com|plaining parties find it a difficult task to answer the multiplied and important infractions with which they may confronted? The time has been when it was incumbent on us all to veil the ideas which this paragraph exhibits. The scene is now changed and with it, the part which the same motives dictate.

The second question is not less delicate; and the flattering prospect of its being merely hypothetical, forbids an over-curious discussion of it. It is one of those cases which must be left to provide for itself. In general it may be observed, that although no political relation can subsist between the assenting and dissenting states, yet the moral relations will remain uncancelled. The claims of justice, both on one side and on the other, will be in force, and must be fulfilled; the rights of humanity must in all cases be duly and mutually respected; whilst considera|tions of a common interest, and above all the remem|brance of the endearing scenes which are past, and

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the anticipation of a speedy triumph over the obstacles to re-union, will, it is hoped, not urge in vain mode|ration on one side, and prudence on the other.

NUMBER XLIV. The same View continued and concluded.

A Fifth class of provisions in favor of the federal authority, consists of the following restrictions on the authority of the several states.

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 debt; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility.

The prohibition against treaties, alliances and confederations, makes a part of the existing articles of union; and for reasons which need no explana|tion, is copied into the new constitution. The pro|hibition of letters of marque is another part of the old system, but is somewhat extended in the new. According to the former, letters of marque could be granted by the states, after a declaration of war. According to the latter, these licences must be ob|tained as well during war as previous to its decla|ration, from the government of the United States. This alteration is fully justified by the advantage of uniformity in all points which relate to foreign powers; and of immediate responsibility to the nation in all those, for whose conduct the nation itself is to be responsible.

The right of coining money, which is here taken from the states, was left in their hands by the confe|deration

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as a concurrent right with that of congress, under an exception in favor of the exclusive right of congress to regulate the alloy and value. In this instance also the new provision is an improvement on the old. Whilst the alloy and value depended on the general authority, a right of coinage in the par|ticular states could have no other effect than to mul|tiply expensive mints, and diversify the forms and weights of the circulating pieces. The latter incon|veniency 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 Ame|rica has sustained since the peace, from the pestilent effects of paper money, on the necessary confidence between man and man; on the necessary confidence in the public councils; on the industry and morals of the people, and on the character of republican go|vernment, constitutes an enormous debt against the states chargeable with this unadvised measure, which must long remain unsatisfied; or rather an accumu|lation of guilt, which can be expiated no otherwise than by a voluntary sacrifice on the alter 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 shew 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;

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retrospective alterations in its value might be made, and thus the citizens of other states be injured, and animosities be kindled among the states themselves. The subjects of foreign powers might suffer from the same cause, and hence the union be discredited and embroiled by the indiscretion of a single mem|ber. No one of these mischiefs is less incident to a power in the states to emit paper money, than to coin gold or silver. The power to make any thing but gold and silver a tender in payment of debts, is withdrawn from the states, on the same principle with that of striking of paper currency.

Bills of attainder, ex post facto laws, and laws impairing the obligation of contracts, are contrary to the first principles of the social compact, and to every principle of sound legislation. The two former are expressly prohibited by the declarations prefixed to some of the state constitutions, and all of them are prohibited by the spirit and scope of these fun|damental charters. Our own experience has taught us nevertheless, that additional fences against these dangers ought not to be omitted. Very properly therefore have the convention added this constitu|tional bulwark in favor of personal security and pri|vate 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 con|stituents. 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 enterprizing and influ|ential speculators; and snares to the more industri|ous and less informed part of the community. They have seen too, that one legislative interference is but the first link of a long chain of repetitions; every subsequent interference being naturally pro|duced by the effects of the preceding. They very

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rightly infer, therefore, that some thorough reform is wanting which will banish speculations on public measures, inspire a general prudence and industry, and give a regular course to the business of society. The prohibition with respect to titles of nobility, is copied from the articles of confederation and needs no comment.

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 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 controul of the congress. No state shall, without the consent of congress, lay any duty on tonnage, keep troops or ships of war in time of peace; enter into any agreement or compact with another state, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.

The restraint on the power of the states over imports and exports is enforced by all the arguments which prove the necessity of submitting the regulation of trade to the federal councils. It is needless there|fore to remark further on this head, than that the manner in which the restraint is qualified, seems well calculated at once to secure to the states a reasonable discretion in providing for the conveniency of their imports and exports, and to the United States a reasonable check against the abuse of this discretion. The remaining particulars of this clause, fall within reasonings which are either so obvious, or have been so fully developed, that they may be passed over without remark.

The sixth and last class consists of the several powers and provision by which efficacy is given to all the rest.

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Of these the first is the power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States.

Few parts of the constitution have been assailed with more intemperance than this; yet on a fair investigation of it, as has been elsewhere shewn, no part can appear more completely invulnerable. Without the substance of this power, the whole con|stitution 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?

necessary and proper;

Had the convention taken the first method of adopting the second article of confederation; it is evident that the new congress would be continually exposed as their predecessors have been, to the alter|native 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 shew if it were necessary, that no important power, delegated by the articles of con|federation, has been or can be executed by congress,

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without recuring more or less to the doctrine of construction or implication . As the powers delegated under the new system are more extensive, the govern|ment which is to administer it would find itself still more distressed with the alternative of betraying the public interest by doing nothing; or of violating the constitution by exercising powers indispensably ne|cessary and proper; but at the same time, not expressly granted.

Had the convention attempted a positive enumera|tion of the powers necessary and proper for carrying their other powers into effect▪ the attempt would have involved a compleat digest of laws on every subject to which the constitution relates; accomo|dated too not only to the existing state of things, but to all the possible changes which futurity may pro|duce: For in every new application of a general power, the particular powers , which are the means of attaining the object of the general power, must always necessarily vary with that object; and be often properly varied whilst the object remains the same.

Had they attempted to enumerate the particular powers or means, not necessary or proper for carrying the general powers into execution, the task would have been no less chimerical; and would have been liable to this further objection; that every defect in the enumeration, would have been equivalent to a positive grant of authority. If to avoid this conse|quence they had attempted a partial enumeration of the exceptions and described the residue by the gene|ral terms, not necessary or proper: It must have hap|pened that the enumeration would comprehend a few of the excepted powers only; that these would be such as would be least likely to be assumed or tolerated because the enumeration would of course select such as would be least necessary or proper, and that the unnecessary and improper powers included in the residuum, would be less forcibly excepted, than if no partial enumeration had been made.

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Had the constitution been silent on this head, there can be no doubt that all the particular powers, re|quisite as means of executing the general powers, would have resulted to the government, by unavoid|able implication. No axiom is more clearly esta|blished in law, or in reason, than that wherever the end is required, the means are authorised; wherever a general power to do a thing is given, every parti|cular power necessary for doing it, is included. Had this last method therefore been pursued by the con|vention, every objection now urged against their plan, would remain in all its plausibility; and the real inconveniency would be incurred, of not re|moving a pretext which may be seized on critical occasions for drawing into question the essential powers of the union.

If it be asked, what is to be the consequence, in case the congress shall misconstrue this part of the constitution, and exercise powers not warranted by its true meaning? I answer the same as if they should misconstrue or enlarge any other power vested in them, as if the general power had been reduced to parti|culars, and any one of these were to be violated; the same in short, as if the state legislatures should vio|late their respective constitutional authorities. In the first instance, the success of the usurpation will depend on the executive and judiciary departments, which are to expound and give effect to the legislative acts; and in the last resort, a remedy must be obtained from the people, who can by the election of more faithful re|presentatives, annul the acts of the usurpers. The truth is, that this ultimate redress may be more con|fided 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 inva|sion of the rights of the latter, these will be ever ready to mark the innovation, to sound the alarm to the peo|ple, and to exert their local influence in effecting a change of federal representatives. There being no

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such intermediate 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.

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, un|der the authority of the United States, shall be the supreme law of the land, and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding.

The indiscreet zeal of the adversaries to the con|stitution. has betrayed them into an attack on this part of it also, without which it would have been evidently and radically defective. To be fully sen|sible of this we need only suppose for a moment, that the supremacy of the state constitutions had been left compleat by a saving clause in their favor.

In the first place, as these constitutions invest the state legislatures with absolute sovereignty, in all cases not excepted by the existing articles of confe|deration, all the authorities contained in the proposed constitution, so far as they exceed those enumerated in the confederation, would have been annulled, and the new congress would have been reduced to the same impotent condition with their predecessors.

In the next place, as the constitutions of some of the states do not even expressly and fully recognize the existing powers of the confederacy, an express saving of the supremacy of the former, would in such states have brought into question, every power con|tained 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 import|ance to the states, would interfere with some and not with other constitutions, and would consequently be valid in some of the states at the same time that it would have no effect in others.

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In fine, the world would have seen for the first time, a system of government founded on an inver|sion of the fundamental principles of all government; it would have seen the authority of the whole society every where subordinate to the authority of the parts; it would have seen a monster in which the head was under the direction of the members.

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 distinc|tions. I content myself with one which is obvious and conclusive. The members of the federal govern|ment will have no agency in carrying the state con|stitutions into effect. The members and officers of the state governments, on the contrary, will have an essential agency in giving effect to the federal constitution. The election of the president and se|nate, 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 government;

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and are brought to this undeniable conclusion, that no part of the power is unnecessary or impro|per for accomplishing the necessary objects of the union. The question therefore, whether this amount of power shall be granted or not, resolves itself into another question, whether or not a government com|mensurate to the exigencies of the union, shall be established; or in other words, whether the union itself shall be preserved.

NUMBER XLV. A further Discussion of the supposed Danger from the Powers of the Union, to the State Governments.

HAVING shewn that no one of the powers trans|fered to the federal government is unnecessary or improper, the next question to be considered is whether the whole mass of them will be dangerous to the portion of authority left in the several states.

The adversaries to the plan of the convention in|stead of considering in the first place what degree of power was absolutely necessary for the purposes of the federal government, have exhausted themselves in a secondary enquiry into the possible consequences of the proposed degree of power, to the governments of the particular states. But if the union, as has been shewn, be essential, to the security of the people of America against foreign danger; if it be essential to their security against contentions and wars among the different states; if it be essential to guard them against those violent and oppressive factions which 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

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to the happiness of the people of America, is it not preposterous, to urge as an objection to a govern|ment without which the objects of the union cannot be attained, that such a government may derogate from the importance of the governments of the indi|vidual 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 poli|tical institutions of a different form? It is too early for politicians to presume on our forgetting that the public good, the real welfare of the great body of the people is the supreme object to be pursued; and that no form of government whatever, has any other value, than as it may be fitted for the attainment of this object. Were the plan of the convention adverse to the public happiness, my voice would be, reject the plan. Were the union itself inconsistent with the public happiness, it would be, abolish the union. In like manner as far as the sovereignty of the states cannot be reconciled to the happiness of the people; the voice of every good citizen must be, let the former be sacrificed to the latter. How far the sa|crifice is necessary, has been shewn. How far the unsacrificed residue will be endangered, is the ques|tion before us.

Several important considerations have been touch|ed in the course of these papers, which discountenance the supposition that the operation of the federal

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government will by degrees prove fatal to the state governments. The more I revolve the subject the more fully I am persuaded that the balance is much more likely to be disturbed by the preponderancy of the last than of the first scale.

We have seen in all the examples of antient and modern confederacies, the strongest tendency conti|nually betraying itself in the members to despoil the general government of its authorities, with a very ineffectual capacity in the latter to defend itself a|gainst the encroachments. Although in most of these examples, the system has been so dissimilar from that under consideration, as greatly to weaken any in|ference concerning the latter from the fate of the former; yet as the states will retain under the pro|posed constitution a very extensive portion of active sovereignty, the inference ought not to be wholly disregarded. In the Achaean league, it is probable that the federal head had a degree and species of power, which gave it a considerable likeness to the government framed by the convention. The Lycian confederacy, as far as its principles and form are transmitted, must have borne a still greater analogy to it. Yet history does not inform us that either of them ever degenerated or tended to degenerate into one consolidated government. On the contrary, we know that the ruin of one of them proceeded from the incapacity of the federal authority to prevent the dissentions, and finally the disunion of the subordi|nate authorities. These cases are the more worthy of our attention, as the external causes by which the co •• •• onent 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 pro|pensity exemplified. Notwithstanding the want of proper sympathy in every instance between the local

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sovereigns and the people, and the sympathy in some instances between the general sovereign and the latter; it usually happened that the local sovereigns prevail|ed in the rivalship for encroachments. Had no external dangers enforced internal harmony and subordination; and particularly had the local sove|reigns possessed the affections of the people, the great kingdoms in Europe, would at this time consist of as many independent princes as there were formerly feudatory barons.

The state governments will have the advantage of the federal government, whether we compare them in respect to the immediate dependence of the one on the other; to the weight of personal influence which each side will possess; to the powers respectively vested in them; to the predilection and probable support of the people; to the disposition and faculty of resisting and frustrating the measures of each other.

The state governments may be regarded as con|stituent and essential parts of the federal government; whilst the latter is no wise essential to the operation or organisation of the former. Without the inter|vention of the state legislatures, the president of the United States cannot be elected at all. They must in all cases have a great share in his appointment, and will perhaps in most cases of themselves deter|mine 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 in|fluence of that class of men, whose influence over the people obtains for themselves an election into the state legislatures. Thus each of the principal branches of the federal government will owe its existence more or less to the favor of the state governments, and must consequently feel a dependence, which is much more likely to beget a disposition too obsequious, than too overbearing towards them. On the other

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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 parti|cular states. There will consequently be less of personal influence on the side of the former, than of the latter. The members of the legislative, executive and judiciary departments of thirteen and more states; the justices of peace, officers of militia, ministerial offi|cers of justice, with all the county corporation and town officers, for three millions and more of people, in|termixed and having particular acquaintance with every class and circle of people, must exceed beyond all proportion, both in number and influence, those of every description who will be employed in the administration of the federal system. Compare the members of the three great departments, of the Thirteen Sates, excluding from the judiciary depart|ment the justices of peace, with the members of the corresponding departments of the single government of the union; compare the militia officers of three millions of people, with the military and marine officers of any establishment which is within the compass of probability, or I may add, of possibility, and in this view alone, we may pronounce the ad|vantage of the states to be decisive. If the federal government is to have collectors of revenue, the state governments will have theirs also. And as those of the former will be principally on the sea-coast, and not very numerous; whilst those of the latter will be spread over the face of the country, and will be very numerous, the advantage in this view also lies on the same side. It is true that the confederacy is to possess, and may exercise, the power of collecting internal as well as external taxes throughout the states:

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But it is probable that this power will not be resorted to, except for supplemental purposes of revenue; that an option will then be given to the states to supply their quotas by previous collections of their own; and that the eventual collection under the immediate authority of the union, will generally be made by the officers, and according to the rules, appointed by the several states. Indeed it is extremely probable that in other instances, particularly in the organization of the judicial power, the officers of the states will be cloathed with the correspondent authority of the union. Should it happen however that separate collectors of internal revenue should be appointed under the fe|deral government, the influence of the whole number would not be a comparison with that of the multitude of state-officers in the opposite scale. Within every district, to which a federal collector would be allot|ted, 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 government, are few and defined. Those which are to remain in the state governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negociation, 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 or|dinary course of affairs, concern the lives, liberties and properties of the people; and the internal order, improvement and prosperity of the state.

The operations of the federal government will be most extensive and important in times of war and danger; those of the state governments, in times of peace and security. As the former periods will pro|bably bear a small proportion to the latter, the state governments will here enjoy another advantage over

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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 dan|ger which might favour their ascendancy over the governments of the particular states.

If the new constitution be examined with accuracy and candour, it will be found that the change which it proposes, consists much less in the addition of NEW POWERS to the union, than in the invigoration of its ORIGINAL POWERS. The regulation of commerce, it is true, is a new power; but that seems to be an addition which few oppose, and from which no appre|hensions are entertained. The powers relating to war and peace, armies and fleets, treaties and finance, with the other more considerable powers, are all vest|ed in the existing congress by the articles of confe|deration. The proposed change does not enlarge these powers; it only substitutes a more effectual mode of administering them. The change relating to tax|ation, may be regarded as the most important: and yet the present congress have as compleat authority to REQUIRE of the states indefinite supplies of money for the common defence and general welfare, as the future congress will have to require them of indivi|dual citizens; and the latter will be no more bound than the states themselves have been, to pay the quo|tas respectively taxed on them. Had the states com|plied punctually with the articles of confederation, or could their compliance have been enforced by as peaceable means as may be used with success towards single persons, our past experience is very far from countenancing an opinion that the state governments would have lost their constitutional powers, and have gradually undergone an entire consolidation. To maintain that such an event would have ensued, would be to say at once, that the existence of the state go|vernments is incompatible with any system whatever that accomplishes the essential purposes of the union.

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Number xlvi. 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 of the last paper I pro|ceed to enquire whether the federal government or t • • e state governments will have the advantage wit • • •• •• gard to the predilection and support of the people. Notwithstanding the different modes in which they are appointed, we must consider both of them, as substantially dependent on the great body of the citizens of the United States. I assume this position here as it respects the first, reserving the proofs for another place. The federal and state of governments are in fact but different agents and trustees of the people, instituted with different powers, and design|ated for different purposes. The adversaries of the constitution seem to have lost sight of the people alto|gether in their reasonings on this subject; and to have viewed these different establishments, not only as mutual rivals and enemies, but as uncontrouled by any common superior in their efforts to usurp the authorities of each other. These gentlemen must here be reminded of their error. They must be told that the ultimate authority, wherever the derivative may be found, resides in the people alone; and that it will not depend merely on the comparative ambi|tion or address of the different governments, whether either, or which of them, will be able to enlarge its sphere of jurisdiction at the expence 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

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the first and most natural attachment of the people will be to the governments of their respective states. Into the administration of these, a greater number of individuals will expect to rise. From the gift of these, a greater number of offices and emoluments will flow. By the superintending care of these, all the more domestic and personal interests of the peo|ple will be regulated and provided for. With the affairs of these, the people will be more familiarly and minutely conversant. And with the members of these, will a greater proportion of the people • • ave the ties of personal acquaintance and friends • • i • • and of family and party attachments; on the side of these, therefore, the popular bias may well be expected most strongly to incline.

Experience speaks the same language in this case. The federal administration, though hitherto very defective, in comparison with what may be hoped under a better system, had during the war, and particularly, whilst the independent fund of paper emissions was in credit, an activity and importance as great as it can well have, in any future circum|stances whatever. It was engaged too in a course of measures, which had for their object, the protection of every thing that was dear, and the acquisition of every thing that could be desirable to the people at large. It was nevertheless, invariably found, after the transient enthusiasm for the early congresses was over, that the attention and attachment of the people were turned anew to their own particular govern|ments; that the federal council was at no time the idol of popular favor; and that opposition to propo|sed enlargements of its powers and importance, was the side usually taken by the men who wished to build their political consequence on the prepossessions of their fellow citizens.

If therefore, as has been elsewhere remarked, the people should in future become more partial to the federal than to the state governments, the change can

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only result from such manifest and irresistible proofs of a better administration, as will overcome all their antecedent propensities. And in that case, the people ought not surely to be precluded from giving most of their confidence where they may discover it to be most due: But even in that case, the state governments could have little to apprehend, because it is only within a certain sphere, that the federal power can, in the nature of things, be advantageously administered.

The remaining points on which I proposed to compare the federal and state governments, are the disposition, and the faculty they may respectively possess, to resist and frustrate the measures of each other.

It has been already proved, that the members of the federal will be more dependent on the members of the state governments, than the latter will be on the former. It has appeared also, that the prepos|sessions 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 influ|enced by these causes, the state governments must clearly have the advantage. But in a distinct and very important point of view, the advantage will lie on the same side. The prepossessions which the members themselves will carry into the federal government, will generally be favorable to the states; whilst it will rarely happen, that the mem|bers of the state governments will carry into the public councils, a bias in favor of the general government. A local spirit will infallibly prevail much more in the members of 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 committed by the state legislatures proceeds from the disposition of the members to sacrifice the comprehensive and per|manent interests of the state, to the particular and

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separate views of the counties or districts in which they reside. And if they do not sufficiently enlarge their policy to embrace the collective welfare of their particular state, how can it be imagined, that they will make the aggregate prosperity of the union, and the dignity and respectability of its government, the objects of their affections and consultations? For the same reason, that the members of the state legis|latures will be unlikely to attach themselves suffici|ently to national objects, the members of the federal legislature will be likely to attach themselves too much to local objects. The states will be to the latter, what counties and towns are to the former. Measures will too often be decided according to their probable effect, not on the national prosperity and happiness, but on the prejudices, interests and pur|suits of the governments and people of the individual states. What is the spirit that has in general cha|racterized the proceedings of congress? A perusal of their journals as well as the candid acknowledg|ments of such as have had a seat in that assembly, will inform us, that the members have but too frequently displayed the character, rather of partizans of their respective states, than of impartial guardians of a common interest; that where, on one occasion, im|proper sacrifices have been made of local consider|ations to the aggrandizement of the federal govern|ment; the great interests of the nation have suffered on an hundred, from an undue atttention to the local prejudices, interests and views of the particular states. I mean not by these reflections to insinuate, that the new federal government will not embrace a more enlarged plan of policy than the existing government may have pursued, much less that its views will be as confined as those of the state legis|latures; but only that it will partake sufficiently of the spirit of both, to be disinclined to invade the rights of the individual states, or the prerogatives of their governments. The motives on the part of the

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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 govern|ment may feel an equal disposition with the state governments to extend its power beyond the due limits, the latter would still have the advantage in the means of defeating such encroachments. If an act of a particular state, though unfriendly to the national government, be generally popular in that state, and should not too grossly violate the oaths of the state officers, it is executed immediately, and of course, by means on the spot, and depending on the state alone. The opposition of the federal govern|ment, or the interposition of federal officers, would but inflame the zeal of all parties on the side of the state, and the evil could not be prevented or repaired, if at all, without the employment of means which must always be resorted to with reluctance and diffi|culty. 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 obstructions which the federal government would hardly be willing to encounter.

But ambitious encroachments of the federal govern|ment, on the authority of the state governments, would

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not excite the opposition of a single state or of a few states only. They would be signals of general alarm. Every government would espou • • e the common cause. A correspondence would be opened. Plans of resist|ance would be concerted. One spirit would animate and conduct the whol • • 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 volun|tarily renounced, the same appeal to a trial of force would be made in the one case, as was made in the other. But what degree of madness could ever drive the federal government to such an extremity? In the contest with Great-Britain, one part of the empire was employed against the other. The more nume • • ous part invaded the rights of the less numerous part. The attempt was unjust and unwise; but it was not in speculation absolutely chimerical. But what would be the contest in the case we are supposing? Who would be the parties? A few representatives of the people would be opposed to the people themselves; or rather one set of representa • • ives 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 governments; is the visionary supposition that the federal government may previously accumulate a military force for the projects of ambi|tion. The reasonings contained in these papers must have been employed to little purpose indeed, if it could be necessary now to disprove the reality of this danger. That the people and the states should for a sufficient period of time elect an uninterrupted succession of men ready to betray both; that the traitors should throughout this period, uniformly and systematically pursue some fixed plan for the extension of the mili|tary establishment; that the governments and the people of the states should silently and patiently behold

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the gathering storm, and continue to supply the mate|rials, until it should be prepared to burst on their own heads, must appear to every one more like the inco|herent dreams of a delirious jealousy, or the mis|judged exaggerations of a counterfeit zeal, than like the sober apprehensions of genuine patriotism. Extra|vagant 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 devo|tion of the federal government; still it would not be going too far to say, that the state governments with the people on their side would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield in the United States an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amount|ing to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the late successful resistance of this country against the British arms will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprizes of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establish|ments in the several kingdoms of Europe, which are

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carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain that with this aid alone, they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will, and direct the national force, and of officers appointed out of the militia, by these govern|ments and attached both to them and to the militia, it may be affirmed with the greatest assurance that the throne of every tyranny in Europe would be speedily overturned, in spite of the legions which surround it. Let us not insult the free and gallant citizens of America with the suspicion that they would be less able to defend the rights of which they would be in actual possession, than the debased subjects of arbitrary power would be to rescue theirs from the hands of their oppressors. Let us rather no longer insult them with the supposition, that they can ever reduce themselves to the necessity of making the experiment, by a blind and tame submission to the long train of insidious measures, which must precede and produce it.

The argument under the present head may be put into a very concise form, which appears altogether conclusive. Either the mode in which the federal government is to be constructed will render it suffici|ently dependant on the people, or it will not. On the first supposition, it will be restrained by that depen|dence from forming schemes obnoxious to their con|stituents. On the other supposition it will not possess the confidence of the people, and its schemes of usur|pation will be easily defeated by the state govern|ments; who will be supported by the people.

On summing up the considerations stated in this and the last paper, they seem to amount to the most convincing evidence, that the powers proposed to be lodged in the federal government, are as little formi|dable to those reserved to the individual states, as they

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are indispensibly necessary to accomplish the purposes of the union; and that all those alarms which have been sounded, of a meditated and consequential anni|hilation of the state governments, must, on the most favorable interpretation, be ascribed to the chimerical fears of the authors of them.

NUMBER XLVII. The Meaning of the Maxim, which requires a Separation of the Departments of Power, examined and ascertained.

HAVING reviewed the general form of the pro|posed government, and the general mass of power allotted to it; I proceed to examine the par|ticular structure of this government, and the distri|bution of this mass of power among its consti|tuent parts.

One of the principal objections inculcated by the more respectable adversaries to the constitution, is its supposed violation of the political maxim, that the legislative, executive and judiciary departments ought to be seperate and distinct. In the structure of the federal government, no regard, it is said, seems to have been paid to this essential precaution in favor of liberty. The several departments of power are distr • • buted and blended in such a manner, as at once to destroy all symmetry and beauty of form; and to expose some of the essential parts of the edifice to the danger of being crushed by the disproportionate weight of other parts.

No political truth is certainly of greater intrinsic value or is stamped with the authority of more enlightened patrons of liberty, than that on which the objection is founded. The accumulation of all

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powers legislative, executive and judiciary in the same hands, whether of one, a few or many, and whether hereditary, self appointed, or elective, may justly be pronounced the very definition of tyranny. Were the federal constitution therefore, really chargeable with 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 persuade myself however, that it will b • • made apparent to every one, that the charge cannot be supported, and that the maxim on which it relies, has been totally misconceived and misap|plied. In order to form correct ideas on this im|portant subject, it will be proper to investigate the sense, in which the preservation of liberty requires, that the three great departments of power should be separate and distinct.

The oracle who is always consulted and cited on this subject, is the celebrated Montesquieu. If he be not the author of this invaluable precept in the science of politics, he has the merit at least of dis|playing 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 Montesqueiu, 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 poli|tical liberty; and to have delivered in the form of elementary truths, the several characteristic princi|ples of that particular system. That we may be sure then not to mistake his meaning in this • • ase,

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let us recur to the source from which the maxim was drawn.

On the slightest view of the British constitution we must perceive, that the legislative, executive, and judiciary departments are by no means totally separate and distinct from each other. The execu|tive magistrate forms an integral part of the legisla|tive authority. He alone has the prerogative of making treaties with foreign sovereigns, which when made, have, under certain limitations, the force of legislative acts. All the member • • of the judiciary department are appointed by him; can be removed by him on the address of the two houses of parliament, and form, when he pleases to consult them, one of his constitutional councils. One branch of the legislative department forms also, a great constitutional council to the executive chief; as on another hand, it is the sole depositary of judi|cial power in cases of impeachment, and is invested with the supreme appellate jurisdiction, in all other cases. The judges again are so far connected with the legislative department, as often to attend and participate in its deliberations, though not admitted to a legislative vote.

there can be no liberty where the legislative and execu|tive powers are united in the same person, or body of magistrates,

if the power of judging be not separated from the legislative and executive powers,

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subverted. This would not 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 admini|stration of justice; or if the entire legislative body, had possessed the supreme judiciary, or the supreme executive authority. This however is not among the vices of that constitution. The magistrate in whom the whole executive power resides cannot of himself make a law, though he can put a negative on every law, nor administer justice in person, though he has the appointment of those who do administer it. The judges can exercise no executive prerogative, though they are shoots from the executive stock, nor any legis|lative function, though they may be advised with by the legislative councils. The entire legislature, can perform no judiciary act; though by the joint act of two of its branches, the judges may be removed from their offices; and though one of its branches is possessed of the judicial power in the last resort. The entire legislature again can exercise no executive prerogative, though one of its branches constitutes the supreme executive magistracy; and another, on the impeachment of a third, can try and condemn all the subordinate officers in the executive department.

When the legislative and executive powers are united in the same person or body, says he, there can be no liberty, because apprehensions may arise lest the same monarch or senate should enact tyran|nical laws, to execute them in a tyrannical manner.

Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator . Were it joined to the exe|cutive power, the judge might behave with all the violence of an oppressor .

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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.

that the legislative, execu|tive and judiciary powers ought to be kept as separate from, and independent of each other as the nature of a free government will admit; or as is consistent with that chain of connection, that binds the whole fabric of the constitution in one indissoluble bond of unity and amity.

that the legislative department shall never exercise the

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executive and judicial powers, or either of them: The executive shall never exercise the legislative and judicial powers, or either of them: The judicial shall never exercise the legislative and executive powers, or either of them.

I pass over the constitution of Rhode-Island and Connecticut, because they were formed prior to the revolution; and even before the principle under ex|amination had become an object of political attention.

The constitution of New-York contains no decla|ration on this subject; but appears very clearly to have been framed with an eye to the danger of im|properly blending the different departments. It gives nevertheless to the executive magistrate a partial controul over the legislative department; and what is more, gives a like controul to the judiciary department, and even blends the executive and

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judiciary departments in the exercise of this controul. In its council of appointment, members of the le|gislative are associated with the executive authority in the appointment of officers both executive and judiciary. And its court for the trial of impeach|ments and correction of errors, is to consist of one branch of the legislature and the principal members of the judiciary department.

The constitution of New-Jersey has blended the different powers of government more than any of the preceding. The governor, who is the executive magistrate, is appointed by the legislature; is chan|cellor and ordinary or surrogate of the state; is a member of the supreme court of appeals, and pre|sident with a casting vote, of one of the legislative branches. The same legislative branch acts again as executive council of the governor, and with him constitutes the court of appeals. The members of the judiciary department are appointed by the legis|lative department, and removeable by one branch of it, on the impeachment of the other.

According to the constitution of Pennsylvania, the president, who is head of the executive department, is annually elected by a vote in which the legisla|tive 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 removeable by the legislature; and the executive power of par|doning in certain cases to be referred to the same department. The members of the executive council are made EX OFFICIO justices of peace throughout the state.

In Delaware, the chief executive magistrate is annually elected by the legislative department. The speakers of the two legislative branches are vice-presidents in the executive department. The

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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 appointment of the other judges. Throughout the states it appears that the members of the legislature may at the same time be justices of the peace. In this state, the members of one branch of it are EX OFFICIO justices of the peace; as are also the members of the executive council. The principal officers of the executive department are appointed by the legislative; and one branch of the latter forms a court of impeach|ments. All officers may be removed on address of the legislature.

Maryland has adopted the maxim in the most unqualified terms; declaring that the legislative, executive and judicial powers of government, ought to be forever separate and distinct from each other. Her constitution, notwithstanding makes the execu|tive magistrate appointable by the legislative de|partment; and the members of the judiciary, by the executive department.

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; ex|cept that the justices of county courts shall be eligible to either house of assembly.

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also is in one case vested in the legislative depart|ment.

that the legislativ • • , executive and supreme judicial powers of gover • • ment, ought to be for|ever separate and distinct from each other,

In South-Carolina, the constitution makes the executive magistracy eligible by the legislative de|partment. It gives to the latter also the appointment of the members of the judiciary department, inclu|ding even justices of the peace and sheriffs; and the appointment of officers in the executive department, down to captains in the army and navy of the state.

that the legislative, executive and judici|ary departments shall be separate and distinct, so that neither exercise the powers properly belong|ing to the other.

In citing these cases in which the legislative, executive and judiciary departments have not been kept totally separate and distinct, I wish not to be regarded as an advocate for the particular organi|zations 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, un|der 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

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different powers; and that in no instance has a com|petent provision been made for maintaining in prac|tice the separation delineated on paper. What I have wished to evince is, that the charge brought against the proposed constitution, of violating a sa|cred maxim of free government, is warranted neither by the real meaning annexed to that maxim by its author; nor by the sense in which it has hitherto been understood in America. This interesting sub|ject will be resumed in the ensuing paper.

NUMBER LXVIII. The same Subject continued, with a View to the Means of giving Efficacy in Practice to that Maxim.

IT was shewn 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 shew that unless these departments be so far connected and blended, as to give to each a constitutional controul 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 compleatly administered by either of the other departments. It is equally evident, that neither of them ought to possess directly or indirectly, an over-ruling influence over the others in the administra|tion of their respective powers. It will not be denied that power is of an incroaching nature, and that it ought to be effectually restrained from passing the

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limits, assigned to it. After discriminating therefore in theory, the several classes of power, as they may in their nature be legislative, executive or judiciary; the next and most difficult task, is to provide some practical security for each against the invasion of the others. What this security ought to be, is the great problem to be solved.

Will it be sufficient to mark with precision the boundaries of these departments in the constitution of the government, and to trust to these parchment barriers against the encroaching spirit of power? This is the security which appears to have been princi|pally relied on by the compilers of most of the Ame|rican constitutions. But experience assures us that the efficacy of the provision has been greatly over|rated; and that some more adequate defence is in|dispensibly necessary for the more feeble, against the more powerful members of the government. The legislative department is every where extending the sphere of its activity, and drawing all power into its impetuous vortex.

The founders of our republics have so much merit for the wisdom which they have displayed, that no task can be less pleasing than that of pointing out the errors into which they have fallen. A respect for truth however obliges us to remark, that they seem never for a moment to have turned their eyes from the danger to liberty from the overgrown and all-grasping prerogative of an hereditary magistrate, supported and fortified by an hereditary branch of the legislative authority. They seem never to have re|collected the danger from legislative usurpations, which by assembling all power in the same hands, must lead to the same tyranny as is threatened by executive usurpations.

In a government, where numerous and extensive prerogatives are placed in the hands of a hereditary monarch, the executive department is very justly regarded as the source of danger, and watched with

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all the jealousy which a zeal for liberty ought to in|spire. In a democracy, where a multitude of people exercise in person the legislative functions, and are continually exposed by their incapacity for regular deliberation and concerted measures, to the ambitious intrigues of their executive magistrates, tyranny may well be apprehended on some favourable emergency, to start up in the same quarter. But in a representa|tive republic, where the executive magistracy is carefully limited both in the extent and the duration of its power; and where the legislative power is ex|ercised by an assembly, which is inspired by a sup|posed influence over the people with an intrepid con|fidence in its own strength; which is sufficiently nu|merous 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 ambi|tion of this department, that the people ought to indulge all their jealousy and exhaust all their precautions.

The legislative department derives a superiority in our governments from other circumstances. Its constitutional powers being at once more extensive and less susceptible of precise limits, it can with the greater facility, mask under complicated and indi|rect measures, the encroachments which it makes, on the co-ordinate departments. It is not unfre|quently a question of real nicety in legislative bodies, whether the operation of a particular measure, will, or will not extend beyond the legislative sphere. On the other side, the executive power being restrained within a narrower compass, and being 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 legislative department alone has access to the pockets of the people, and has in some constitutions full discretion, and in all, a prevailing influence

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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 encroach|ments 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 concise and at the same time, equally satisfac|tory evidence I will refer to the example of two states, attested by two unexceptionable authorities.

All the powers of government, legislative, executive and judi|ciary, result to the legislative body. The concen|trating these in the same hands is precisely the definition of de • • potic government. It will be no alleviation that these powers will be exercised by a plurality of hands, and not by a single one. One hundred and seventy-three despots would surely be as oppressive as one. Let those who doubt it turn their eyes on the republic of Venice. As little will it avail us that they are chosen by ourselves. An elective despotism was not the go|vernment 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

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legal limits, without being effectually checked and restrained by the others. For this reason, that convention which passed the ordinance of go|vernment laid its foundation on this basis, that the legislative, executive and judiciary depart|ments, should be separate and distinct, so that no person should exercise the powers of more than one of them at the same time. But no barrier was provided between these several powers. The judi|ciary and executive members were left dependent on the legislative for their subsistence in office, and some of them for their continuance in it. If therefore the legislature assumes executive and ju|diciary 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 rend •• •• them obliga|tory on the other branches. They have accord|ingly in many instances decided rights which should have been left to judiciary controversy ; and the direction of the executive, during the whole time of their session, is becoming habitual and familiar .

to enquire whether the consti|tution had been preserved inviolate in every part; and whether the legislative and executive branches of government had performed their duty as guar|dians of the people, or assumed to themselves, or exercised other or greater powers than they are entitled to by the constitution.

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been flagrantly violated by the legislature in a variety of important instances.

A great number of laws had been passed violating without any apparent necessity, the rule requiring that all bills of a publick nature shall be previously printed for the consideration of the people; although this is one of the precautions chiefly relied on by the constitution, against improper acts of the legislature.

The constitutional trial by jury had been violated; and powers assumed, which had not been delegated by the constitution.

Executive powers had been usurped.

The salaries of the judges, which the constitution expressly requires to be fixed, had been occasionally varied; and cases belonging to the judiciary depart|ment, frequently drawn within legislative cognizance and determination.

Those who wish to see the several particulars fall|ing under each of these heads, may consult the jour|nals of the council which are in print. Some of them, it will be found may be imputable to peculiar cir|cumstances connected with the war: But the greater part of them may be considered as the spontaneous shoots of an ill constituted government.

It appears also, that the executive department had not been innocent of frequent breaches of the consti|tution. There are three observations however, which ought to be made on this head. First , A great pro|portion of the instances, were either immediately produced by the necessities of the war, or recommen|ded 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 de|partment of Pennsylvania is distinguished from that of the other states, by the number of members com|posing it. In this respect it has as much affinity to a legislative assembly, as to an executive council. And being at once exempt from the restraint of an

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individual responsibility for the acts of the body, and deriving confidence from mutual example and joint influence; unauthorised measures 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 seve|ral departments, is not a sufficient guard against those encroachments which lead to a tyrannical con|centration of all the powers of government in the same hands.

NUMBER LXIX. The same Subject continued with the same View.

THE author of the "Notes on the state of Virgi|nia," quoted in the last paper has subjoined to that valuable work, the draught of a constitution which had been prepared in order to be laid before a convention expected to be called in 1783, by the legislature, for the establishment of a constitution for that commonwealth. The plan, like every thing from the same pen, marks a turn of thinking original, comprehensive and accurate; and is the more worthy of attention, as it equally displays a fervent attach|ment to republican government, and an enlightened view of the dangerous propensities against which it ought to be guarded. One of the precautions which he proposes, and on which he appears ultimately to rely as a palladium to the weaker departments of power, against the invasions of the stronger, is per|haps altogether his own, and as it immediately re|lates to the subject of our present enquiry, ought not to be overlooked.

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that whenever any two of the three branches of government shall concur in opinion, each by the voices of two thirds of their whole number, that a convention is necessary for altering the constitution or correcting breaches of it , a convention shall be called for the purpose.

As the people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of govern|ment hold their power, is derived; it seems strictly consonant to the republican theory, to recur to the same original authority, not only whenever it may be necessary to enlarge, diminish, or new-model the powers of government; but also whenever any one of the departments may commit encroachments on the chartered authorities of the others. The several departments being perfectly co-ordinate by the terms of their common commission, neither of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers; and how are the encroachments of the stronger to be prevented, or the wrongs of the weaker to be redressed, without an appeal to the people themselves; who, as the grantors of the commission, can alone declare its true meaning and enforce its observance?

There is certainly great force in this reasoning, and it must be allowed to prove, that a constitutional road to the decision of the people, ought to be mark|ed 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 con|stitutional 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

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of the other departments, should be able to gain to its interest either of the others, or even one third of its members, the remaining department could derive no advantage from this remedial provision. I do not dwell however, on this objection, because 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 great measure deprive the government of that veneration which time bestows on every thing, and without which perhaps the wisest and freest governments would not possess the requisite stability. If it be true that all governments rest on opinion, it is no less true that the strength of opinion in each individual, and its practical influence on his conduct, depend much on the number which be 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 antient as well as numerous , they are known to have a dou|ble effect. In a nation of philosophers, this consi|deration 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 philoso|phical race of kings wished for by Plato. And in every other nation, the most rational government will not find it a superfluous advantage to have the prejudices of the community on its side.

The danger of disturbing the public tranquility by interesting too strongly the public passions, is a still more serious objection against a frequent reference of constitutional questions, to the decision of the whole society. Notwithstanding the success which

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has attended the revisions of our established forms of government, and which does so much honor to the virtue and intelligence of the people of America, it must be confessed, that the experiments are of too ticklish a nature to be unnecessarily multiplied. We are to recollect that all the existing constitutions were formed in the midst of a danger which repressed the passions most unfriendly to order and concord; of an enthusiastic confidence of the people in their patriotic leaders, which stifled the ordinary diversity of opinions on great national questions; of a univer|sal ardor for new and opposite forms, produced by a universal resentment and indignation against the antient government; and whilst no spirit of party, connected with the changes to be made, or the abuses to be reformed, could mingle its leaven in the operation. The future situations in which we must expect to be usually placed, do not present any equivalent security against the danger which is apprehended.

But the greatest objection of all is that the decisions which would probably result from such appeals, would not answer the purpose of maintaining the constitu|tional equilibrium of the government. We have seen that the tendency of republican governments is to an aggrandizement of the legislative, at the expence of the other departments. The appeals to the people therefore, would usually be made by the executive and judiciary departments. But whether made by one side or the other, would each side enjoy equal advantages on the trial? Let us view their different situations. The members of the executive and judi|ciary departments, are few in number, and can be personally known to a small part only of the people. The latter by the mode of their appointment, as well as by the nature and permanency of it, are too far removed from the people to share much in their prepossessions. The former are generally the ob|jects of jealousy: and their admistration is always

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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 con|nections of blood, of friendship and of acquaintance, embrace a great proportion of the most influential part of the society. The nature of their public trust implies a personal influence among the people, and that they are more immediately the confidential guardians of the rights and liberties of the people. With these advantages, it can hardly be supposed that the adverse party would have an equal chance for a favorable issue.

But the legislative party would not only be able to plead their cause most successfully with the people: They would probably be constituted themselves the judges. The same influence which had gained them an election into the legislature, would gain them a seat in the convention. If this should not be the case with all, it would probably be the case with many, and pretty certainly with those leading cha|racters, on whom every thing depends in such bodies. The convention in short would be composed chiefly of men, who had been, who actually were, or who expected to be, members of the department whose conduct was arraigned. They would consequently be parties to the very question to be decided by them.

It might however sometimes happen, that appeals would be made under circumstances less adverse to the executive and judiciary departments. The usur|pations of the legislature might be so flagrant and so sudden, as to admit 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 peculiar favorite of the people. In such a posture of things, the public decision might be less swayed by prepossessions in favor of the legis|lative party. But still it could never be expected to turn on the true merits of the question. It would

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inevitably be connected with the spirit of pre-exist|ing parties, or of parties springing out of the question itself. It would be connected with persons of distin|guished character and extensive influence in the com|munity. It would be pronounced by the very men who had been agents in, or opponents of the measures, to which the decision would relate. The passions therefore not the reason , of the public, would sit in judgment. But it is the reason of the public alone that ought to controul and regulate the government. The passions ought to be controuled and regulated by the government.

We found in the last paper that mere declarations in the written constitution, are not sufficient to restrain the several departments within their legal 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 of a different nature contained in the plan above quoted, might be adequate, I do not examine. Some of them are unquestionably founded on sound political principles, and all of them are framed with singular ingenuity and precision.

NUMBER L. The same Subject continued with the same View.

IT may be contended perhaps, that instead of occa|sional appeals to the people, which are liable to the objections urged against them, periodical appeals are the proper and adequate means of preventing and correcting infractions of the constitution .

It will be attended to, that in the examination of these expedients, I confine myself to their aptitude

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for enforcing the constitution by keeping the several departments of power within their due bounds, without particularly considering them, as provisions for altering the constitution itself. In the first view, appeals to the people at fixed periods, appear to be nearly as ineligible, as appeals on particular occa|sions as they emerge. If the periods be separated by short intervals, the measures to be reviewed and recti|fied, will have been of recent date, and will be connected with all the circumstances which tend to viciate and pervert the result of occasional revisions. If the periods be distant from each other, the same remark will be applicable to all recent measures, and in proportion as the remoteness of the others may favor a dispassionate review of them, this advantage is inseparable from inconveniences which seem to counterbalance it. In the first place, a distant pro|spect of public censure would be a very feeble restraint on power from those excesses, to which it might be urged by the force of present motives. Is it to be imagined, that a legislative assembly, consisting of a hundred or two hundred members, eagerly bent on some favorite object, and breaking through the restraints of the constitution in pursuit of it, would be arrested in their career, by considerations drawn from a censorial revision of their conduct at the future distance of ten, fifteen or twenty years? In the next place, the abuses would often have completed their mischievous effects, before the remedial provision would be applied. And in the last place, where this might not be the case, they would be of long standing would have taken deep root, and would not easily be extirpated.

whether the constitution had

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been violated, and whether the legislative and exe|cutive departments had encroached on each other.

First. It appears from the names of the gentlemen who composed the council, that some at least of its most active and leading members, had also been active and leading characters in the parties which pre-existed in the state.

Second. It appears that the same active and lead|ing members of the council, had been active and influential members of the legislative and executive branches, within the period to be reviewed; and even patrons or opponents of the very measures to be thus brought to the test of the constitution. Two of the members had been vice-presidents of the state, and several others, members of the executive council within the seven preceding years. One of them had been speaker, and a number of others distinguished members of the legislative assembly, within the same period.

Third. Every page of their proceedings witnesses the effect of all these circumstances on the temper of of their deliberations. Throughout the continuance of the council, it was split into two fixed and violent parties. The fact is acknowledged and lamented by themselves. Had this not been the case, the face of their proceedings 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 unbiassed observer, may infer without danger

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of mistake, and at the same time, without meaning to reflect on either party, or any individuals of either party, that unfortunately passion , not reason , must have presided over their decisions. When men exer|cise their reason coolly and freely, on a variety of distinct questions, they inevitably fall into different opinions on some of them. When they are governed by a common passion, their opinions, if they are so to be called, will be the same.

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 constitutional questions, whether rightly or erroneously formed, have had any effect in varying the practice founded on legislative con|structions. It even appears, if I 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 alledg|ing that the state in which the experiment was made, was at that crisis, and had been for a long time before, violently heated and distracted by the rage of party. Is it to be presumed, that at any future septennial epoch, the same state will be free from parties? Is it to be presumed that any other state, at the same or any other given period, will be exempt from them? Such an event ought to be neither pre|sumed nor desired; because an extinction of parties necessarily implies either a universal alarm for the public safety, or an absolute extinction of liberty.

Were the precaution taken of excluding from the assemblies elected by the people to revise the pre|ceding

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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 concerned in the administration, and therefore not immediately agents in the measures to be examined; they would pro|bably have been involved in the parties connected with these measures, and have been elected under their auspices.

NUMBER LI. The same Subject continued with the same View, and concluded.

TO what expedient then shall we finally resort for maintaining in practice the necessary par|tition of power among the several departments, as laid down in the constitution? The only answer that can be given is, that as all these exterior provi|sions are found to be inadequate, the defect must be supplied, by so contriving the interior structure of the government, as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places. Without presuming to undertake a full developement of this important idea, I will hazard a few general obser|vations, 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 govern|ment, which to a certain extent, is admitted on all

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hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others. Were this principle rigorously adhered to, it would require that all the appointments for the supreme executive, legislative and judiciary magistracies should be drawn from the same fountain of authority, the people, through channels, having no communication whatever with one another. Per|haps such a plan of constructing the several depart|ments would be less difficult in practice than it may in contemplation appear. Some difficulties however, and some additional expence, would attend the exe|cution of it. Some deviations therefore from the principle must be admitted. In the constitution of the judiciary department in particular, it might be inexpedient to insist rigorously on the principle; first, because peculiar qualifications being essential in the members, the primary consideration ought to be to select that mode of choice, which best secures these qualifications; secondly, because the permanent tenure by which the appointments are held in that depart|ment, must soon destroy all sense of dependence on the authority conferring them.

It is equally evident that the members of each department should be as little dependent as possible on those of the others, for the emoluments annexed to their offices. Were the executive magistrate, or the judges, not independent of the legislature in this particular, their independence in every other, would be merely nominal.

But the great security against a gradual concentra|tion of the several powers in the same department, consists in giving to those who administer each depart|ment, the necessary constitutional means, and perso|nal motives, to resist encroachments of the others. The provision for defence must in this, as in all

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other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambi|tion. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of govern|ment. But what is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to control the governed; and in the next place, oblige it to con|trol itself. A dependence on the people is no doubt the primary control on the government; but expe|rience has taught mankind the necessity of auxiliary precautions.

This policy of supplying by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. We see it particularly displayed in all the subordinate distributions of power; where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other; that the private interest of every individual, may be a centinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the state.

But it is not possible to give to each department an equal power of self-defence. In republican govern|ment the legislative authority necessarily predomi|nates. 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

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functions, and their common dependence on the society, will admit. It may even be necessary to guard against dangerous encroachments by still fur|ther precautions. As the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require, on the other hand, that it should be fortified. An absolute negative, on the legislature, appears at first view to be the natural defence with which the executive magistrate should be armed. But perhaps it would be neither altogether safe, nor alone sufficient. On ordinary occasions, it might not be exerted with the requisite firmness; and on extraordinary occasions, it might be perfidiously abused. May not this defect of an absolute negative be supplied by some qualified connection between this weaker department, and the weaker branch of the stronger department, by which the latter may be led to support the constitu|tional rights of the former, without being too much detached from the rights of its own department?

If the principles on which these observations are founded be just, as I persuade myself they are, and they be applied as a criterion to the several state constitutions, and to the federal constitution, it will be found, that if the latter does not perfectly corres|pond with them, the former are infinitely less able to bear such a test.

There are moreover two considerations particu|larly applicable to the federal system of America, which place that system in a very interesting point of view.

First. In a single republic, all the power surren|dered by the people, is submitted to the administra|tion of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people, is first divided between two distinct govern|ments, and then the portion allotted to each,

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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 society against the oppression of its rulers; but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure. There are but two methods of providing against this evil: The one by creating a will in the community independent of the majority, that is, of the society itself; the other by comprehending in the society so many separate descrip|tions of citizens, as will render an unjust combination of a majority of the whole very improbable, if not impracticable. The first method prevails in all governments possessing an hereditary or self appointed authority. This at best is but a precarious security; because a power independent of the society may as well espouse the unjust views of the major, as the rightful interests of the minor party, and may possibly be turned against both parties. The second method will be exemplified in the federal republic of the United States. Whilst all authority in it will be derived from, and dependent on the society, the society itself will be broken into so many parts, interests and classes of citizens, that the rights of individuals or of the minority, will be in little danger from interested combinations of the majority. In a free government, the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests, and in the other, in the multiplicity of sects. The degree of security in both cases will depend on the number of interests and sects; and this may be presumed to depend on the extent of country and number of people

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comprehended under the same government. This view of the subject must particularly recommend a proper federal system to all the sincere and considerate friends of republican government: Since it shews that in exact proportion as the territory of the union may be formed into more circumscribed confederacies or states, oppressive com • • inations of a majority will be facilitated, the best security under the republican form, for the rights of every class of citizens, will be diminished; and consequently, the stability and independence of some member of the government, the only other security must be proportionally increased. Justice is the end of government. It is the end of civil society. I • • 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 indi|vidual is not secured against the violence of the stronger: And as in the latter state even the stronger individuals are prompted by the uncertainty of their condition, to submit to a government which may protect the weak as well as themselves: So in the former state, will the more powerful factions or parties be gradually induced by a like motive, to wish for a government which will protect all parties, the weaker as well as the more powerful. It can be little doubted, that if the state of Rhode-Island was separated from the confederacy, and left to itself, the insecurity of rights under the popular form of government within such narrow limits, would be displayed by such rei|terated 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

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society could seldom take place upon any other prin|ciples 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 former, by intro|ducing into the government • • will not dependent on the latter; or in other words, a will independent of the society itself. It is no less certain than it is important, notwithstanding the contrary opinions which have been entertained, that the larger the society, provided it lie within a 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 extent, by a judicious modification and mixture of the federal principle .

NUMBER LII. 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 enquiries 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 elec|tors and the elected. Those of the former are to be the same with those of the electors of the most numerous branch of the state legislatures. The defi|nition of the right of suffrage is very justly regarded as a fundamental article of republican government.

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It was incumbent on the convention, therefore, to define and establish this right in the constitution. To have left it open for the occasional regulation of the congress, would have been improper for the reason just mentioned. To have submitted it to the legislative discretion of the states, would have been improper for the same reason; and for the additional reason, that it would have rendered too dependent on the state governments, that branch of the federal government, which ought to be dependent on the people alone. To have reduced the different quali|fications in the different states to one uniform rule, would probably have been as dissatisfactory to some of the states, as it would have been difficult to the convention. The provision ma • • e by the convention appears therefore, to be the best that lay within their option. It must be satisfactory to every state; be|cause it is conformable to the standard already established, or which may be established by the state itself. It will be safe to the United States; because, being fixed by the state constitutions, it is not alter|able by the state governments, and it cannot be feared that the people of the states will alter this part of their constitutions, in such a manner as to abridge the rights secured to them by the federal constitution.

The qualifications of the elected being less care|fully and properly defined by the state constitutions, and being at the same time more susceptible of uni|formity, have been very properly considered and regulated by the convention. A representative of the United States must be of the age of twenty-five years; must have been seven years a citizen of the United States; must at the time of his election, be an inhabitant of the state he is to represent, and during the time of his service must be in no office under the United States. Under these reasonable limitations, the door of this part of the federal government is open to merit of every description,

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whether native or adoptive, whether young or old, and without regard to poverty or wealth, or to any particular profession of religious faith▪

The term for which the representatives are to be elected, falls under a second view which may be taken of this branch. In order to decide on the propriety of this article, two questions must be considered; first, whether biennial elections will, in this case, be safe; secondly, whether they be necessary or useful.

First. As it is essential to liberty, that the govern|ment in general should have a common interest with the people; so it is particularly essential that the branch of it under consideration should have an immediate dependence on, and an intimate sympa|thy with the people. Frequent elections are unques|tionably the only policy by which this dependence and sympathy can be effectually secured. But what particular degree of frequency may be absolutely necessary for the purpose, does not appear to be sus|ceptible 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 antient polity; it is in more modern times only, that we are to expect instruc|tive examples. And even here, in order to avoid a research too vague and diffusive, it will be proper to confine ourselves to the few examples which are best known, and which bear the greatest analogy to our particular case. The first to which this cha|racter ought to be applied, is the house of commons in Great-Britain. The history of this branch of the English constitution, anterior to the date of Magna Charta, is too obscure to yield instruction. The very existence of it has been made a question among poli|tical antiquaries. The earliest records of subsequent

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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 pretex •• •• , very long and dangerous intermissions were often contrived by royal ambition. To remedy this grievance, it was provided by a statute in the reign of Charles IId. that the intermissions, should not be protracted beyond a period of three years. On the accession of William IIId, 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 IId. is reduced to a precise meaning, it being 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 century, under an alarm for the Hanoverian succession. From these facts it appears, that the greatest fre|quency of elections which has been deemed necessary in that kingdom, for binding the representatives to their constituents, does not exceed a triennial return of them. And if we may argue from the degree of liberty retained even under septennial elections, and all the other vicious ingredients in the parliamentary constitution, we cannot doubt that a reduction of the period from seven to three years, with the other necessary reforms, would so far extend the influence of the people over their representatives as to satisfy us, that biennial elections under the federal system, cannot possibly be dangerous to the requisite deqendence of the house of represen|tatives on their constituents.

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Elections in Ireland, till of late, were regulated entirely by the discretion of the crown, and were seldom repeated except on the accession of a new prince, or some other contingent event. The parlia|ment which commenced with George IId▪ was conti|nued throughout his whole reign, a period of about thirty-five years. The only dependence of the repre|sentatives on the people, consisted in the right of the latter to supply occasional vacancies, by the election of new members, and in the chance of some event which might produce a general new election. The ability also of the Irish parliament to maintain the rights of their constituents, so far as the disposition might exist, was extremely shackled by the control of the crown over the subjects of their deliberation. Of late these shackles, if I mistake not, have been broken; and octennial parliaments have besides been established. What effect may be produced by this partial reform, must be left to further expe|rience. The example of Ireland, from this view of it, can throw but little light on the subject. As far as we can draw any conclusion from it, it must be, that if the people of that country have been able, under all these disadvantages, to retain any liberty whatever, the advantage of biennial elections would secure to them every degree of liberty which might depend on a due connection between their represen|tatives and themselves.

Let us bring our enquiries 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 representa|tives of the people, prior to the revolution, that biennial elections would have been dangerous to the

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public liberties? The spirit which every where dis|played itself at the commencement of the struggle; and which vanquished the obstacles to independence, is the best of proofs that a sufficient portion of liberty had been every where enjoyed to inspire both a sense of its worth, and a zeal for its proper enlarge|ment. This remark holds good as well with regard to the then colonies, whose elections were least frequent, as to those whose elections were most frequent. Virginia was the colony which stood first in resisting the parliamentary usurpations of Great-Britain; it was the first also in espousing by public act, the resolution of independence. In Virginia, nevertheless, if I have not been misinformed, elec|tions under the former government were septennial. This particular example is brought into view, not as a proof of any peculiar merit, for the priority in those instances, was probably accidental; and still less of any advantage in septennial elections, for when com|pared with a greater frequency they are inadmissible; but merely as a proof, and I conceive it to be a very substantial proof, that the liberties of the people can be in no danger from biennial elections.

The conclusion resulting from these examples will be not a little strengthened by recollecting three cir|cumstances. The first is, that the federal legislature will possess a part only of that supreme legislative authority which is vested completely in the British parliament, and which, with a few exceptions, was exercised by the colonial assemblies and the Irish legislature. It is a received and well founded maxim, that, where no other circumstances affect the case, the greater the power is, the shorter ought to be its duration; and conversely, the smaller the power, the more safely may its duration be protracted. In the second place, it has, on another occa|sion, been shewn that the federal legislature will not only be restrained by its dependence on the people, as other legislative bodies are; but that it

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will be moreover watched and controled by the seve|ral collateral legislatures, which other legislative bodies are not. And in the third place, no compa|rison can be made between the means that will be possessed by the more permanent branches of the federal government for seducing, if they should be disposed to seduce, the house of representatives from their duty to the people; and the means of influence over the popular branch, possessed by the other branches of the 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.

NUMBER LIII. The same Subject continued, with a View of the Term of Service of the Members.

that where annual elections end, tyranny begins.

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various situations and circumstances of civil society, The election of magistrates might be, if it were found expedient, as in some instances it actually has been, daily, weekly, or monthly▪ as well as annual; and if circumstances may require a deviation from the rule on one side, why not also on the other side. Turning our attention to the periods established among ourselves, for the election of the most nume|rous branches of the state legislatures, we find them by no means coinciding any more in this instance, than in the elections of other civil magistrates. In Connecticut and Rhode-Island, the periods are half-yearly. In the other states, South-Carolina excepted, they are annual. In South-Carolina, they are bien|nial; 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 shew that Connecticut or Rhode-Island is better governed, or enjoys a greater share of rati|onal 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 under|stood in America between a constitution established by the people, and unalterable by the government; and a law established by the government, and alterable by the government, seems to have been little understood and less observed in any other country. Wherever the supreme power of legislation has resided, has been supposed to reside also, a full power to change the form of the government. Even in Great Britain, where the principles of political and civil liberty have been most discussed, and where we hear most of the rights of the constitution, it is maintained that the authority of the parliament is transcendent and uncontrolable, as well with regard to the constitution, as the ordinary objects

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of legislative provision. They have accordingly, in several instances, actually changed, by legislative acts, some of the most fundamental articles of the govern|ment. They have in particular, on several occasions, changed the period of election; and on the last occa|sion, not only introduced septennial, in place of tri|ennial elections; but by the same act continued them|selves 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 constitu|tion paramount to the government, either existed or could be obtained, no constitutional security similar to that established in the United States, was to be attempted. Some other security therefore was to be sought for; and what better security would the case admit, than that of selecting and appealing to some simple and familiar portion of time, as a standard for measuring the danger of innovations, for fixing the national sentiment, and for uniting the patriotic exertions. The most simple and familiar portion of time, applicable to the subject, was that of a year; and hence the doctrine has been inculcated by a laudable zeal to erect some barrier against the gradual innovations of an unlimited government, that the advance towards tyranny was to be calculated by the distance of departure from the fixed point of annual elections. But what necessity can there be of apply|ing this expedient to a government, limited as the federal government will be, by the authority of a paramount constitution? Or who will pretend that the liberties of the people of America will not be more secure under biennial elections, unalterably fixed by such a constitution, than those of any other nation would be, where elections were annual or even more

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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 judg|ment, a certain degree of knowledge of the subjects on which he is to legislate. A part of this know|ledge may be acquired by means of information which lie within the compass of men in private as well as public stations. Another part can only be attained, or at least thoroughly attained, by actual experience in the station which requires the use of it. The period of service ought therefore in all such cases to bear some proportion to the extent of practical knowledge, requisite to the due performance of the service. The period of legislative service established in most of the states for the more numerous branch is, as we have seen, one year. The question then may be put into this simple form; does the period of two years bear no greater proportion to the knowledge requisite for federal legislation, than one year does to the knowledge requisite for state legislation? The very statement of the question in this form, suggests the answer that ought to be given to it.

In a single state, the requisite knowledge relates to the existing laws which are uniform throughout the state, and with which all the citizens are more or less conversant; and to the general affairs of the state, which lie within a small compass, are not very diversified and occupy much of the attention and conversation of every class of people. The great theatre of the United States presents a very different scene. The laws are so far from being uniform, that they vary in every state; whilst the public affairs of the union are spread throughout a very extensive region, and are extremely diversified by the local

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affairs connected with them, and can with difficulty be correctly learnt in any other place, than in the central councils, to which a knowledge of them will be brought by the representatives of every part of the empire. Yet some knowledge of the affairs, and even of the laws of all the states, ought to be possessed by the members from each of the states. How can foreign trade be properly regulated by uniform laws, without some acquaintance with the commerce; the parts, the usages, and the regulations of the different states? How can the trade between the different states be duly regulated without some knowledge of their relative situations in these and other points? How can taxes be judiciously imposed, and effectually collected, if they be not accommodated to the dif|ferent laws and local circumstances relating to these objects in the different states? How can uniform regulations for the militia be duly provided without a similar knowledge of some internal circumstances by which the states are distinguished from each other? These are the principal objects of federal legislation, and suggest most forceably, the extensive information which the representatives ought to acquire. The other inferior objects will require a proportional degree of information with regard to them.

It is true that all these difficulties will by degrees be very much diminished. The most laborious task will be the proper inauguration of the government, and the primeval formation of a federal code. Improve|ments on the first draught will every year become both easier and fewer. Past transactions of the govern|ment will be a ready and accurate source of infor|mation to new members. The affairs of the union will become more and more objects of curiosity and conversation among the citizens at large. And the increased intercourse among those of different states will contribute not a little to diffuse a mutual know|ledge of their affairs, as this again will contribute to a general assimilation of their manners and laws.

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But with all these abatements the business of federal legislation must continue so far to exceed both in no|velty 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 ac|quirements 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 •• •• eaties between the United States and other nations, but also with the commercial policy and laws of other nations. He ought not be altogether ignorant of the law of nations, for that as far it is a proper object of municipal legislation is submitted to the federal government. And although the house of representatives is not immediately to participate in foreign negociations and arrangements, yet from the necessary connection between the several branches of public affairs, those particular branches will frequently deserve attention in the ordinary course of legislation, and will sometimes demand particular legislative sanction and co-operation. Some portion of this knowledge may no doubt be acquired in a man's closet; but some of it also can only be derived from the public sources of information; and all of it will be acquired to best effect by a practical attention to the subject during the period of actual service in the legislature.

There are other considerations of less importance perhaps, but which are not unworthy of notice. The distance which many of the representatives will be obliged to travel, and the arrangements rendered ne|cessary by that circumstance, might be much more serious objections with fit men to this service if limited to a single year, than if extended to two years. No argument can be drawn on this subject from the case of the delegates to the existing congress. They are elected annually it is true; but their re-election is

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considered by the legislative assemblies almost as a matter of course. The election of the representatives by the people would not be governed by the same principle.

A few of the members, as happens in all such assemblies, will possess superior talents; will, by fre|quent 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 advan|tages of our frequent elections, even in single states, where they are large and hold but one legislative 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, particu|larly in the more distant states. Each house is, as it necessarily must be, the judge of the elections, quali|fications 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 unavoid|ably 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.

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All these considerations taken together warrant us in affirming that biennial elections will be as useful to the affairs of the public, as we have seen that they will be safe to the liberties of the people.

NUMBER LIV. 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 appor|tionment 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 apportionment 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 per|sonal rights of the people, with which it has a natural and universal connection. In the latter, it has refer|ence 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 recently obtained the general sanction of America, not to have found a ready preference with the convention.

All this is admitted, it will perhaps be said: But does it follow from an admission of numbers for the measure of representation, or of slaves combined with

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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 esti|mates of taxation which are founded on property, and to be excluded from representation which is regulated by a census of persons. This is the objection, as I understand it, stated in its full force. I shall be equally candid in stating the reasoning which may be offered on the opposite side.

We subscribe to the doctrine, might one of our southern brethren observe, that representation relates more immediately to persons, and taxation more immediately to property, and we join in the appli|cation of this distinction to the case of our slaves. But we must deny the fact that slaves are considered merely as property, and in no respect whatever as persons. The true state of the case is, that they partake of both these qualities; being considered by our laws, in some respects, as persons, and in other respects, as pro|perty. In being compelled to labor not for himself, but for a master; in being vendible by one master to another master; and in being subject at all times to be restrained in his liberty, and chastised in his body, by the capricious will of another, the slave may appear to be degraded from the human rank, and classed with those irrational animals, which fall under the legal denomination of property. In being pro|tected 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 liberty; and in being punishable himself for all violence committed against others; the slave is no less evidently regarded by the law as a member of the society; not as a part of the irrational creation; as a moral person, not as a mere article of property. The federal constitution therefore, decides with great propriety on the case of our slaves, when it views them in the mixt character of persons and of property. This is in fact their true character. It is

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the character bestowed on them by the laws under which they live; and it will not be denied that these are the proper criterion; because it is only under the pretext that the laws have transformed the negroes into subjects of property, that a place is disputed them in the computation of numbers; and it is admitted that if the laws were to restore the rights which have been taken away, the negroes could no longer be refused an equal share of representation with the other inhabitants.

This question may be placed in another light. It is agreed on all sides, that numbers are the best scale of wealth and taxation, as they are the only proper scale of represention. Would the Convention have been impartial or consistent, if they had rejected the slaves from the list of inhabitants when the shares of representation were to be calculated; and inserted them on the lists when the tariff of contributions was to be adjusted? Could it be reasonably expected that the southern states would concur in a system which considered their slaves in some degree as men, when burdens were to be imposed, but refused to consider them in the same light when advantages were to be conferred? Might not some surprize also be expres|sed that those who reproach the southern states with the barbarous policy of considering as property, a part of their human brethren, should themselves contend that the government to which all the states are to be parties, ought to consider this unfortunate race more compleatly in the unnatural light of pro|perty, 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 rejecting them altogether, we constitution would in this respect,

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have followed the very laws which have been appealed to, as the proper guide.

This objection is repelled by a single observation. It is a fundamental principle of the proposed consti|tution, that as the aggregate number of representa|tives allotted to the several states is to be determined by a federal rule founded on the aggregate number of inhabitants, so the right of choosing this allotted number in each state is to be exercised by such part of the inhabitants, as the state itself may designate. The qualifications on which the right of suffrage depend, are not perhaps the same in any two states. In some of the states the difference is very material. In every state a certain proportion of inhabitants are deprived of this right by the constitution of the state, who will be included in the census by which the federal constitution apportions the representatives. In this point of view, the southern states might retort the complaint, by insisting, that the principle laid down by the convention required that no regard should be had to the policy of particular states towards their own inhabitants; and consequently, that the slaves as inhabitants should have been admitted into the census occording 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 waved by those who would be gainers by it. All that they ask is, that equal moderation be shewn on the other side. Let the case of the slaves be considered, as it is in truth a peculiar one. Let the compromising expedient of the constitution be mutually adopted, which regards them as inhabitants, but as debased by servitude below the equal level of free inhabitants, which regards the slave as divested of two fifths of the man .

After all, may not another ground be taken on which this article of the constitution will admit of a still more ready defence? We have hitherto pro|ceeded

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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 pro|tection of the property, than of the persons of indi|viduals. The one as well as the other, therefore, may be considered as represented by those who are charged with the government. Upon this principle it is, that in several of the states, and particularly in the state of New-York, one branch of the govern|ment 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 comparitive wealth of the states. States have not, like individuals, an influ|ence over each other arising from superior advantages of fortune. If the law allows an opulent citizen but a single vote in the choice of his representative, the respect and consequence which he derives from his fortunate situation, very frequently guide the votes of others to the objects of his choice; and through this imperceptible channel the rights of property are conveyed into the public representation. A state possesses no such influence over other states. It is not probable that the richest state in the confe|deracy will ever influence the choice of a single representative in any other state. Nor will the representatives of the larger and richer states, possess any other advantage in the federal legisla|ture 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

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to be secured to them by a superior share of repre|sentation. The new constitution is in this respect materially different from the existing confederation, as well as from that of the United Netherlands, and other similar confederacies. In each of the latter, the efficacy of the federal resolutions depends on the subsequent and voluntary resolutions of the states composing the union. Hence the states, though possessing an equal vote in the public councils, have an unequal influence, corresponding with the un|equal importance of these subsequent and voluntary resolutions. Under the proposed constitution, the federal acts will take effect without the necessary intervention of the individual states. They will depend merely on the majority of votes in the federal legislature, and consequently each vote, whether proceeding from a larger or sma • • ler sta • • e, 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 charac|ter of the individual representative, rather than from any regard to the extent of the district from which he comes.

Such is the reasoning which an advocate for the southern interests might employ on this subject: And although it may appear to be a little strained in some points, yet on the whole, I must confess, that it fully reconciles me to the scale of representa|tion, which the convention have established.

In one respect the establishment of a common mea|sure for representation and taxation will have a very salutary effect. As the accuracy of the census to be obtained by the congress, will necessarily depend in a considerable decree on the disposition, if not the co-operation of the states, it is of great importance

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that the states should feel as little bias as possible to swell or to reduce the amount of their numbers. Were their share of representation alone to be governed by this rule, they would have an interest in exaggerating their inhabitants. Were the rule to decide their share of taxation alone, a contrary temptation would prevail. By extending the rule to both objects, the states will have opposite interests, which will control and ballance each other; and produce the requisite impartiality.

NUMBER LV. The same Subject continued in Relation to the total Number of the Body.

THE number of which the house of represen|tatives is to consist, forms another, and a very interesting point of view under which this branch of the federal legislature may be contem|plated. Scarce any article indeed in the whole con|stitution seems to be rendered more worthy of atten|tion, by the weight of character and the apparent force of argument, with which it has been assailed. The charges exhibited against it are, first, that so small a number of representatives will be an unsafe depositary of the public interests; secondly, that they will not possess a proper knowledge of the local circumstances of their numerous constituents; thirdly, that they will be taken from that class of citizens which will sympathise least with the feelings of the mass of the people, and be most likely to aim at a permanent elevation of the few on the depression of the many; fourthly, that defective as the number will be in the first instance, it will be more and more disproportionate, by the increase of the people, and

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the obstacles which will prevent a correspondent increase of the representatives.

In general it may be remarked on this subject, that no polical problem is less susceptible of a precise solu|tion, than that which relates to the number most con|venient 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 pro|portions which they respectively bear to the number of their constituents. Passing over the difference between the smallest and largest states, as Delaware, whose most numerous branch consists of twenty-one represen|tatives, and Massachusetts, where it amounts to between three and four hundred; a very considerable difference is observable among states nearly equal in population. The number of representatives in Penn|sylvania is not more than one fifth of that in the state last mentioned. New-York, whose population is to that of South-Carolina as six to five, has little more than one third of the number of representatives. As great a disparity prevails between the states of Georgia and Delaware, or Rhode-Island. In Pennsylvania the representatives do not bear a greater proportion to their constituents than of one for every four or five thousand. In Rhode-Island, they bear a proportion of at least one for every thousand. And according to the constitution of Georgia, the proportion may be carried to one 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 representatives and the people, ought not to be the same where the latter are very numerous, as where they are very few. Were the representatives in Virginia to be regulated by the standard in Rhode-Island, they would at this time amount to between four and five hundred; and twenty or thirty years hence, to a thousand. On the other

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hand, the ratio of Pennsylvania, if applied to the state of Delaware, would reduce the representative assembly of the latter to seven or eight members. Nothing can be more fallacious than to found our political calcu|lations on arithmetical principles. Sixty or seventy men, may be more properly trusted with a given degree of power than six or seven. But it does not follow, that six or seven hundred would be propor|tionally a better depositary. And if we carry on the supposition to six or seven thousand, the whole rea|soning ought to be reversed. The truth is, that in all cases a certain number at least seems to be necessary to secure the benefits of free consultation and discussion, and to guard against too easy a combi|nation 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 intem|perance 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 observa|tions which were applied to the case of biennial elections. For the same reason that the limited powers of the congress and the control of the state legislatures, justify less frequent elections than the public safety might otherwise require; the mem|bers of the congress need be less numerous than if they possessed the whole power of legislation, and were under no other than the ordinary restraints of other legislative bodies.

With these general ideas in our minds, let us weigh the objections which have been stated against the number of members proposed for the house of representatives. It is said in the first place, that so small a number cannot be safely trusted with so much power.

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The number of which this branch of the legislature is to consist at the outset of the government, will be sixty-five. Within three years a census is to be taken, when the number may be augmented to one for every thirty thousand inhabitants; and within every successive period of ten years, the census is to be renewed, and augmentations may continue to be made under the above limitation. It will not be thought an extravagant conjecture, that the first census will, at the rate of one for every thirty thou|sand, raise the number of representatives to at least one hundred. Estimating the negroes in the pro|portion of three-fifths, it can scarcely be doubted that the population of the United States will by that time, if it does not already, amount to three millions. At the expiration of twenty-five years, according to the computed rate of increase, the number of representatives will amount to two hun|dred; 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 shew, that the number of repre|sentatives will be augmented from time to time in the manner provided by the constitution. On a contrary supposition, I should admit the objection to have very great weight indeed.

The true question to be decided then is, whether the smallness of the number as a temporary regula|tion, be dangerous to the public liberty: Whether sixty-five members for a few years, and a hundred or two hundred for a few more, be a safe depositary for a limited and well guarded power of legislating for the United States? I must own that I could not give a negative answer to this question, without first obliterating every impression which I have received with regard to the present genius of the people of America, the spirit which actuates the state legis|latures, and the principles which are incorporated

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with the political character of every class of citizens. I am unable to conceive that the people of America in their present temper, or under any circumstances which can speedily happen, will chuse, and every second year repeat the choice of sixty-five or an hundred men, who would be disposed to form and pursue a scheme of tyranny or treachery. I am unable to conceive that the state legislatures which must feel so many motives to watch, and which possess so many means of counteracting the federal legislature, would fail either to detect or to defeat a conspiracy of the latter against the liberties of their common constituents. I am equally unable to con|ceive 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 them|selves to the choice of the people at large, who would either desire or dare within the short space of two years, to betray the solemn trust committed to them. What change of circumstances time and a fuller population of our country may produce, requires a prophetic spirit to declare, which makes no part of my pretensions. But judging from the circumstances now before us, and from the probable state of them within a moderate period of time, I must pronounce that the liberties of America cannot be unsafe in the number of hands proposed by the federal constitution.

From what quarter can the danger proceed? Are we afraid of foreign gold? If foreign gold could so easily corrupt our federal rulers, and enable them to ensnare and betray their constituents, how has it happened that we are at this time a free and inde|pendent 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

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years; and prior to the ratification of the federal articles, for a still longer term; they held their con|sultations always under the veil of secresy; they had the sole transaction of our affairs with foreign nations; through the whole course of the war, they had the fate of their country more in their hands, than it is to be hoped will ever be the case with our future represen|tatives; and from the greatness of the prize at stake and the eagerness of the party which lost it, it may well be supposed, that the use of other means than force would not have been scrupled: Yet we know by happy experience that the public trust was not betrayed; nor has the purity of our public councils in this particular ever suffered even from the whispers of calumny.

Is the danger apprehended from the other branches of the federal government? But where are the means to be found by the president or the senate, or both? Their emoluments of office it is to be presumed will not, and without a previous corruption of the house of representatives cannot, more than suffice for very different purposes: Their private fortunes, as they must all be American citizens, cannot possibly be sources of danger. The only means then which they can possess, will be in the dispensation of appoint|ments. Is it here that suspicion rests her charge? Sometimes we are told that this fund of corruption is to be exhausted by the president in subduing the virtue of the senate. Now the fidelity of the other house is to be the victim. The improbability of such a mercenary and perfidious combination of the several members of government standing on as different foun|dations 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 appre|hension. But fortunately the constitution has pro|vided 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

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be increased, during the term of their election. No offices therefore can be dealt out to the existing mem|bers, but such as many become vacant by ordinary casualties; and to suppose that these would be suffi|cient 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 sub|stitute an indiscriminate and unbounded jealousy, with which all reasoning must be vain. The sincere friends of liberty who give themselves up to the extravagancies of this passion are not aware of the injury they do their own cause. As there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust: So there are other qualities in human nature, which justify a certain portion of esteem and confidence. Republican government presupposes the existence of these qua|lities in a higher degree than any other form. Were the pictures which have been drawn by the political jealousy of some among us, faithful likenesses of the human character, the inference would be that there is not sufficient virtue among men for self govern|ment; and that nothing less than the chains of despotism can restrain them from destroying and devouring one another.

NUMBER LVI. The same Subject continued in Relation to the same Point.

THE second charge against the house of represen|tatives 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 com|parison of the proposed number of representatives,

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with the great extent of the United States, the num|ber of their inhabitants, and the diversity of their interests, without taking into view at the same time the circumstances which will distinguish the congress from other legislative bodies, the best answer that can be given to it, will be a brief explanation of these peculiarities.

It is a sound and important principle, that the representative ought to be acquainted with the interests and circumstances of his constituents. But this principle can extend no farther than to those cir|cumstances and interests to which the authority and care of the representative relate. An ignorance of a variety of minute and particular objects, which do not lie within the compass of legislation, is consistent with every attribute necessary to a due performance of the legislative trust. In determining the extent of information required in the exercise of a parti|cular authority, recourse then must be had to the objects within the purview of that authority.

What are to be the objects of federal legislation? Those which are of most importance, and which seem most to require local knowledge, are commerce, taxation and the militia.

A proper regulation of commerce requires much information, as has been elsewhere remarked; but as far as this information relates to the laws and local situation of each individual state, a very few representatives would be very sufficient vehicles of it to the federal councils.

Taxation will consist in great measure, of duties which will be involved in the regulation of com|merce. 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 cir|cumstances of the state may be necessary. But will not this also be possessed in sufficient degree by a very few intelligent men, diffusively elected within the state. Divide the largest state into ten or twelve

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districts, 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 representatives from every part of it, will be almost of themselves a sufficient guide. In every state there have been made, and must con|tinue 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 before him, might compile a law on some subjects of taxation for the whole union, without any aid from oral infor|mation; 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 mo|ment, that this or any other state were divided into a number of parts, each having and exercising within itself a power of local legislation. Is it not evident that a degree of local information and prepa|ratory labour would be 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 circumstance. The representatives of each state will not only bring with them a consider|able knowledge of its laws, and a local knowlege of their respective districts; but will probably in all cases have been members, and may even at the very time be members of the state legislature, where all the local information and interests of the state are assembled, and from whence they may easily be

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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 circumstances in reference to which local knowledge can be said to be necessary. The general face of the country, whether mountainous or level, most fit for the operations of infantry or cavalry, is almost the only consideration of this nature that can occur. The art of war teaches general princi|ples of organization, 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 repre|sentatives 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 neces|sary and difficult, not by a difference of laws and local circumstances within a single state, but of those among different states. Taking each state by itself, its laws are the same, and its interests but little diversified. A few men therefore will possess all the knowledge requisite for a proper representation of them. Were the interests and affairs of each indi|vidual state, perfectly simple and uniform, a know|ledge of them in one part would involve a knowledge of them in every other, and the whole state might be competently represented, by a single member taken from any part of it. On a comparison of the different states together, we find a great dissimilarity in their laws, and in many other circumstances connected with the objects of federal legislation, with all of which the federal representatives ought to have some acquaintance. Whilst a few representatives therefore from each state may bring with them a due knowledge of their own state, every represen|tative will have much information to acquire con|cerning

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all the other states. The changes of time, as was formerly remarked, on the comparative situation of the different states, will have an assimilating effect. The effect of time on the internal affairs of the states taken singly, will be just the contrary. At present some of the states are little more than a society of hushandmen. Few of them have made much progress in those branches of industry, which give a variety and complexity to the affairs of a nation. These however will in all of them be the fruits of a more advanced population; and will require on the part of each state a fuller represen|tation. The foresight of the convention has accor|dingly taken care that the progress of population may be accompanied with a proper increase of the representative branch of the government.

The experience of Great Britain which presents to mankind so many political lessons, both of the moni|tory and exemplary kind, and which has been fre|quently consulted in the course of these enquiries, corroborates the result of the reflections which we have just made. The number of inhabitants in the two kingdoms of England and Scotland, cannot be stated at less than eight millions. The representatives of these eight millions in the house of commons, amount to five hundred 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 government, or to the knowledge of their circumstances and interests, in the legislative councils. On the contrary it is notorious that they are more frequently the representatives and instruments of the executive magistrate, than the guardians und advocates of the popular rights. They might therefore with great

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propriety be considered as something more than a mere deduction from the real representatives of the nation. We will however consider them, in this light alone, and will not extend the deduction, to a considerable number of others, who do not reside among their constituents, are very faintly connected with them, and have very little particular know|ledge of their affairs. With all these concessions two hundred and seventy nine persons only will be the depositary of the safety, interest and happiness of eight millions; that is to say; there will be one representative only to maintain the rights and explain the situation of twenty-eight thousand six hundred and seventy constituents, in an assembly exposed to the whole force of executive influence, and extending its authority to every object of legislation within a nation whose affairs are in the highest degree diver|sified and complicated. Yet it is very certain not only that a valuable portion of freedom has been preserved under all these circumstances, but that the defects in the British code are chargeable in a very small proportion, on the ignorance of the legislature concerning the circumstances of the people. Allow|ing to this case the weight which is due to it; and comparing it with that of the house of representa|tives as above explained, it seems to give the fullest assurance that a representative for every thirty thou|sand inhabitants will render the latter both a safe and competent guardian of the interests which will be confided to it.

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Number lvii. the same subject continued in relation to the supposed tendency of the plan of the con|vention to elevate the few above the many..

THE third charge against the house of represen|tatives 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 aggrandize|ment of the few.

Of all the objections which have been framed against the federal constitution, this is perhaps the most extraordinary. Whilst the objection itself is levelled against a pretended oligarchy, the prin|ciple of it strikes at the very root of republican government.

The aim of every political constitution is, or ought to be, first, to obtain for rulers men who possess most wisdom to discern, and most virtue to pursue the common good of the society; and in the next place, to take the most effectual precautions for keeping them virtuous, whilst they continue to hold their public trust. The elective mode of obtaining rulers is the characteristic policy of republican government. The means relied on in this form of government for preventing their degeneracy, are numerous and vari|ous. The most effectual one is such a limitation of the term of appointments, as will maintain a proper responsibility to the people.

Let me now ask what circumstance there is in the constitution of the house of representatives, that violates the principles of republican government; or favors the elevation of the few on the ruins of the many? Let me ask whether every circumstance is not, on the contrary, strictly conformable to these

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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 repre|sentatives? Not the rich more than the poor; not the learned more than the ignorant; not the haughty heirs of distinguished names, more than the humble sons of obscure and unpropitious fortune. The elec|tors 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 of his country. No qualifi|cation of wealth, of birth, of religious faith, or of civil profession, is permitted to fetter the judgment or disappoint the inclination of the people.

If we consider the situation of the men on whom the free suffrages of their fellow citizens may confer the representative trust, we shall find it involving every security which can be devised or desired for their fidelity to their constituents.

In the first place, as they will have been distin|guished by the preference of their fellow citizens, we are to presume, that in general, they will be some|what distinguished also, by those qualities which entitle them to it, and which promise a sincere and scrupulous regard to the nature of their en|gagements.

In the second place, they will enter into the public service under circumstances which cannot fail to produce a temporary affection at least to their constituents. There is in every breast a sensibility to marks of honour, of favour, of esteem, and of con|fidence, which, apart from all considerations of interests, is some pledge for grateful and benevolent returns. Ingratitude is a common topic of decla|mation against human nature; and it must be con|fessed,

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that instances of it are but too frequent and flagrant both in public and in private life. But the universal and extreme indignation which it inspires, is itself a proof of the energy and preva|lence of the contrary sentiment.

In the third place, those ties which bind the repre|sentative to his constituents are strengthened by motives of a more selfish nature. His pride and vanity attach him to a form of government which favors his pretensions, and gives him a share in its honors and distinctions. Whatever hopes or projects might be entertained by a few aspiring characters, it must generally happen that a great proportion of the men deriving their advancement from their influ|ence with the people, would have more to hope from a preservation of the favor, than from inno|vations in the government subversive of the autho|rity of the people.

All these securities however would be found very insufficient without the restraint of frequent elections. Hence, in the fourth place, the house of representatives is so constituted as to support in the members an habitual recollection of their dependence on the people. Before the sentiments impressed on their minds by the mode of their elevation, can be effaced by the exercise of power, they will be compelled to anticipate the moment when their power is to cease, when their exercise of it is to be reviewed, and when they must descend to the level from which they were raised; there 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 representatives, restraining them from oppressive measures, that they can make no law which will not have its full operation on them|selves 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

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connect the rulers and the people together. It creates between them that communion of interest and sym|pathy of sentiments of which few governments have furnished examples; but without which every government degenerates into tyranny. If it be asked what is to restrain the house of representatives from making legal discriminations in favor of them|selves 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 Ame|rica, a spirit which nourishes freedom, and in return is nourished by it.

If this spirit shall ever be so far debased as to tolerate a law not obligatory on the legislature as well as on the people, the people will be prepared to tolerate any thing but liberty.

Such will be the relation between the house of representatives and their constituents. Duty, gra|titude, interest, ambition itself, are the cords by which they will be bound to fidelity and sympathy with the great mass of the people. It is possible that these may all be 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 characteristic means by which republican govern|ment provides for the liberty and happiness of the people? Are they not the indentical means on which every state government in the union, relies for the attainment of these important ends? What then are we to understand by the objection which this paper has combated? What are we to say to the men who profess the most flaming zeal for republican government, yet boldly impeach the fundamental principle of it; who pretend to be champions for the right and the capacity of the people to chuse their own rulers, yet maintain that they will prefer those only

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who will immediately and infallibly betray the trust committed to them?

Were the objection to be read by one who had not seen the mode prescribed by the constitution for the choice of representatives, he could suppose nothing less than that some unreasonable qualification of property was annexed to the right of suffrage; or that the right of eligibility was limited to persons of particular families or fortunes; or at least that the mode prescribed by the state constitutions was in some respect or other very grossly departed from. We have seen how far such a supposition would err as to the two first points. Nor would it in fact be less erroneous as to the last. The only difference discoverable between the two cases is, that each representative of the United States will be elected by five or six thousand citizens; whilst in the indi|vidual states the election of a representative is left to about as many hundred. Will it be pretended that this difference is sufficient to justify an attach|ment 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 chusing a fit representative, or more liable to be corrupted by an unfit one, than five or six hundred. Reason, on the contrary assures us, that as in so great a number, a fit representa|tive would be most likely to be found, so the choice would be less likely to be diverted from him, by the intrigues of the ambitious, or the bribes of the rich.

Is the consequence from this doctrine admissible? If we say that five or six hundred citizens are as many as can jointly exercise their right of suffrage, must we not deprive the people of the immediate choice of their public servants in every instance where the admi|nistration of the government does not require as many

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of them as will amount to one for that number of citizens?

Is the doctrine warranted by facts? It was shewn in the last paper, that the real representation in the British house of commons very little exceeds the pro|portion of one for every thirty thousand inhabitants. Besides a variety of powerful causes, not existing here and which favor in that country, the pretensions of rank and wealth, no person is eligible as a represen|tative of a county, unless he possess real estate of the clear value of six hundred pounds sterling per year; nor of a city or borough, unless he possess a like estate of half that annual value. To this qualification on the part of the county representatives, is added another on the part of the county electors, which restrains the right of suffrage to persons having a freehold estate of the annual value of more than twenty pounds sterling, according to the present rate of money. Notwith|standing these unfavourable circumstances, and not|withstanding 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

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choosing four or five representatives, they cannot be incapable of choosing one. Pennsylvania is an addi|tional example. Some of her counties which elect her state representatives, are almost as large as her districts will be by which her federal representatives will be elected. The city of Philadelphia is supposed to contain between fifty and sixty thousand souls. It will therefore form nearly two districts for the choice of federal representatives. It forms however but one county, in which every elector votes for each of its representatives in the state legislature. And what may appear to be still more directly to our purpose, the whole city actually elects a single member for the executive council. This is the case in all the other counties of the state.

Are not these facts the most satisfactory proofs of the fallacy which has been employed against the branch of the federal government under consideration? Has it appeared on trial that the senators of New-Hampshire, Massachusetts and New-York; or the executive council of Pennsylvania; or the members of the assembly in the two last states, have betrayed any peculiar disposition to sacrifice the many to the few; or are in any respect less worthy of their places than the representatives and magistrates appointed in other states, by very small divisions of the people?

But there are cases of a stronger complexion than any which I have yet quoted. One branch of the legislature of Connecticut is so constituted that each member of it is elected by the whole state. So is the governor of that state, of Massachusetts, and of this state, and the president of New-Hampshire. I leave every man to decide whether the result of any one of these experiments can be said to countenance a suspicion that a diffusive mode of chusing represen|tatives of the people tends to elevate traitors, and to undermine the public liberty.

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Number lviii. 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 examine, is grounded on a supposition that the number of members will not be augmented from time to time, as the progress of population may demand.

It has been admitted that this objection, if well supported, would have great weight. The follow|ing observations will shew that like most other objections 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 federal constitution will not suffer by a comparison with the state constitutions, in the security provided for a gradual augmentation of the number of representatives. The number which is to prevail in the first instance is declared to be temporary. Its duration is limited to the short term of three years.

Within every successive term of ten years, a census of inhabitants is to be repeated. The unequivocal objects of these regulations are, first, to 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 representative at least: Secondly, to augment the number of representatives at the same periods; under the sole limitation, that the whole number shall not exceed one for every thirty thousand inhabitants. If we review the con|stitutions 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

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point with the federal constitution; and that the most effectual security in any of them is resolvable into a mere directory provision.

2. As far as experience has taken place on this subject, a gradual increase of representatives under the state constitutions, has at least kept pace with that of the constituents; and it appears that the former have been as ready to concur in such measures, as the latter have been to call for them.

3. There is a peculiarity in the federal constitution which ensures a watchful attention in a majority both of the people and of their representatives, to a con|stitutional augmentation of the latter. The pecu|liarity lies in this, that one branch of the legislature is a representation of citizens; the other of the states: In the former, consequently the larger states will have most weight; in the latter, the advantage will be in favor of the smaller states. From this circumstance it may with certainty be inferred, that the larger states will be strenuous advocates for increasing the number and weight of that part of the legislature in which their influence predominates. And it so happens that four only of the largest, will have a majority of the whole votes in the house of representatives. Should the representatives or people therefore of the smaller states oppose at any time a reasonable addition of members, a coalition of a very few states will be suf|ficient to overrule the opposition; a coalition, which notwithstanding the rivalship and local prejudices which might prevent it on ordinary occasions, would not fail to take place, when not merely prompted by common interest but justified by equity and the principles of the constitution.

It may be alledged, 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 of the other branch might be defeated. This is the diffi|culty which has probably created the most serious

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apprehensions in the jealous friends of a numerous representation. Fortunately it is among the difficul|ties which, existing only in appearance, vanish on a close and accurate inspection. The following reflec|tions will, if I mistake not, be admitted to be con|clusive and satisfactory on this point.

Notwithstanding the equal authority which will subsist between the two houses on all legislative subjects, except the originating of money bills, it cannot be doubted that the house composed of the greater number of members, when supported by the more powerful states, and speaking the known and determined sense of a majority of the people, will have no small advantage in a question depending on the comparative firmness of the two houses.

This advantage must be increased by the consci|ousness 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 legitimate pretensions. Hence it is by no means certain that a majority of votes, even in the senate; would be unfriendly to proper augmentations in the number of representatives.

It will not be looking too far to add, that the senators from all the new states may be gained over to the just views of the house of representatives, by an expedient too obvious to be overlooked. As these states will for a great length of time advance in population with peculiar rapidity, they will be inter|ested in frequent re-apportionments of the represen|tatives to the number of inhabitants. The large states

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therefore, who will prevail in the house of represen|tatives, will have nothing to do, but to make re|apportionments and augmentations mutually condi|tions of each other; and the senators from all the most growing states will be bound to contend for the latter, by the interest which their states will feel in the former.

These considerations seem to afford ample security on this subject; and ought alone to satisfy all the doubts and fears which have been indulged with regard to it. Admitting however, that they should all be insufficient to subdue the unjust policy of the smaller states, or their predominant influence in the councils of the senate; a constitutional and infalli|ble resource still remains with the larger states, by which they will be able at all times to accomplish their just purposes. The house of representatives can not only refuse, but they alone can propose the supplies requisite for the support of government. They in a word hold the purse; that powerful instru|ment 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 govern|ment. This power over the purse, may in fact be regarded as the most compleat and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.

But will not the house of representatives be as much interested as the senate in maintaining the government in its proper functions, and will they not therefore be unwilling to stake its existence for its reputation on the pliancy of the senate? Or if such a trial of firmness between the two branches were hazarded, would not the one be as likely first

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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 dishonorable stag|nation 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 em|ployed. An absolute inflexibility on the side of the latter, although it could not have failed to involve every department of the state in the general confu|sion, has neither been apprehended nor experienced. The utmost degree of firmness that can be displayed by the federal senate or president will not be more than equal to a resistance in which they will be sup|ported by constitutional and patriotic principles.

In this review of the constitution of the house of representatives, I have passed over the circumstance of economy, which in the present state of affairs might have had some effect in lessening the tempo|rary number of representatives; and a disregard of which would probably have been as rich a theme of declamation against the constitution as has been furnished by the smallness of the number proposed. I omit also any remarks on the difficulty which might be found, under present circumstances, in engaging in the federal service, a large number of such characters as the people will probably elect. One observation however, I must be permitted to add on this subject, as claiming in my judgment a very serious attention. It is, that in all legislative assemblies, the greater the number composing them may be, the fewer will be the men who will in fact direct their proceedings. In the first place, the

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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 pro|portion of members of limited information and of weak capacities. Now it is precisely on characters of this description that the eloquence and address of the few are known to act with all their force. In the antient 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 compleat a sway, as if a sceptre had been placed in his single hands. On the same principle the more multitudinous a representative assembly may be ren|dered▪ the more it will partake of the infirmities incident to collective meetings of the people. Igno|rance will be the dupe of cunning; and passion the slave of sophistry and declamation. The people can never err more than in supposing that by multiplying their representatives beyond a certain limit, they strengthen the barrier against the government of a few. Experience will forever admonish them that on the contrary, after securing a sufficient number for the purposes of safety, of local information, and of diffu|sive sympathy with the whole society , they will coun|teract their own views by every addition to their representatives. The countenance of the govern|ment may become more democratic; but the soul that animates it will be more oligarchic. The ma|chine will be enlarged, but the fewer, and often the more secret, will be the springs by which its motions are directed.

As connected with the objection against the number of representatives, may properly be here noticed, that which has been suggested against the number made competent for legislative business. It has been said that more than a majority ought to have been required for a quorum, and in particular cases, if not in all, more than a majority of a quorum for a decision.

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That some advantages might have resulted from such a precaution, cannot be denied. It might have been an additional shield to some particular interests, and another obstacle generally to hasty and partial measures. But these considerations are outweighed by the inconveniencies in the opposite scale. In all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of free government would be reversed. It would be no longer the majority that would rule; the power would be transferred to the minority. Were the defensive privilege limited to particular cases, an interested minority might take advantage of it to skreen themselves from equitable sacrifices to the general weal, or in particular emer|gencies to extort unreasonable indulgences. Lastly, it would facilitate and foster the baneful practice of secessions; a practice which has shewn itself even in states where a majority only is required; a practice subversive of all the principles of order and regular government; a practice which leads more directly to public convulsions, and the ruin of popular governments, than any other which has yet been displayed among us.

NUMBER LIX. Concerning the Regulation of Elections.

The times, places and manner of holding elections for senators and representatives, shall be prescribed in each state

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by the legislature thereof; but the congress may at any time by law, make or alter such regulations except as to places of choosing senators .

I am greatly mistaken, notwithstanding, if there be any article in the whole plan more completely defensible than this. Its propriety rests upon the evidence of this plain proposition, that every govern|ment ought to contain in itself the means of its own pre|servation . Every just reasoner will at first sight approve an adherence to this rule in the work of the convention; and will disapprove every deviation from it, which may not appear to have been dictated by the necessity of incorporating into the work some particular ingredient, with which a rigid conformity to the rule was incompatible. Even in this case, though he may acquiesce in the necessity, yet he will not cease to regard a departure from so fundamental a principle, as a portion of imperfection in the system which may prove the feed of future weakness and perhaps anarchy.

It will not be alledged than an election law could have been framed and inserted into the constitution, which would have been applicable to every probable change in the situation of the country; and it will therefore not be denied that a discretionary power over elections ought to exist somewhere. It will, I presume, be as readily conceded, that there were only three ways, in which this power could have been reasonably modified and disposed, that it must either have been lodged wholly in the national legislature, or wholly in the state legislatures, or primarily in

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the latter, and ultimately in the former. The last mode has with reason been preferred by the con|vention. They have submitted the regulation of elections for the federal government in the first instance to the local administrations; which in ordinary cases, and when no improper views prevail, may be both more convenient and more satisfactory; but they have reserved to the national authority a right to interpose, whenever extraordinary circum|stances might render that interposition necessary to its safety.

Nothing can be more evident, than that an exclu|sive power of regulating elections for the national government, in the hands of the state legislatures, would leave the existence of the union entirely at their mercy. They could at any moment annihilate it, by neglecting to provide for the choice of persons to administer its affairs. It is to little purpose to say that a neglect or omission of this kind, would not be likely to take place. The constitutional possibility of the thing, without an equivalent for the risk, is an unanswerable objection. Nor has any satisfactory reason been yet assigned for incurring that risk. The extravagant surmises of a distempered jealousy can never be dignified with that character. If we are in a humour to presume abuses of power, it is as fair to presume them on the part of the state govern|ments, as on the part of the general government. And as it is more consonant to the rules of a just theory to intrust the union with the care of its own existence, than to transfer that care to any other hands; if abuses of power are to be hazarded on the one side or on the other, it is more rational to hazard them where the power would naturally be placed, than where it would unnaturally be placed.

Suppose an article had been introduced into the constitution, empowering the United States to regu|late the elections for the particular states, would any man have hesitated to condemn it, both as an un|warrantable

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transposition of power, and as a preme|ditated engine for the destruction of the state govern|ments? 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 of subjecting the existence of the national govern|ment, in a similar respect to the pleasure of the state governments. An impartial view of the matter cannot fail to result in a conviction, that each, as far as possible ought to depend on itself for its own preservation.

As an objection to this position, it may be remarked that the constitution of the national senate, would involve in its full extent the danger which it is suggested might flow from an exclusive power in the state legislatures to regulate the federal elections. It may be alledged, that by declining the appointment of senators, they might at any time give a fatal blow to the union; and from this it may be infered, that as its existence would be thus rendered dependent upon them in so essential a point, there can be no ob|jection to entrusting them with it, in the particular case under consideration. The interest of each state, it may be added, to maintain its representation in the national councils, would be a complete security against an abuse of the trust.

This argument, though specious, will not upon examination be found solid. It is certainly true, that the state legislatures, by forbearing the appointment of senators, may destroy the national government. But it will not follow, that because they have the power to do this in one instance, they ought to have it in every other. There are cases in which the per|nicious tendency of such a power may be far more decisive, without any motive, equally cogent with that which must have regulated the conduct of the con|vention, in respect to the construction of the senate, to recommend their admission into the system. So far as that construction may expose the union to the

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possibility of injury from the state legislatures, it is an evil; but it is an evil, which could not have been avoided without excluding the states, in their political capacities, wholly from a place in the organization of the national government. If this had been done, it would doubtless have been interpreted into an entire dereliction of the federal principle; and would cer|tainly have deprived the state governments of that absolute safe-guard, which they will enjoy under this provision. But however wise it may have been, to have submitted in this instance to an inconvenience, for the attainment of a necessary advantage or a greater good, no inference can be drawn from thence to favor an accumulation of the evil, where no necessity urges, nor any greater good invites.

It may easily be discerned also, that the national government would run a much greater risk from a power in the state legislatures over the elections of its house of representatives, than from their power of appointing the members of its senate. The senators are to be chosen for the period of six years; there is to be a rotation, by which the seats of a third part of them are to be vacated, and replenished every two years; and no state is to be entitled to more than two senators: A quorum of the body is to consist of six|teen 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 per|manent combination of the states, that we can have any thing to fear. The first might proceed from sinister designs in the leading members of a few of the state legislatures; the last would suppose a fixed and rooted disaffection in the great body of the people; which will either never exist at all, or will in all probability proceed from an experience of the inaptitude of the general government to the advance|ment

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of their happiness; in which event no good citizen could desire its continuance.

But with regard to the federal house of represen|tatives, 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 regu|lating these elections, every period of making them would be a delicate crisis in the national situation; which might issue in a dissolution of the union, if the leaders of a few of the most important states should have entered into a previous conspiracy to prevent an election.

I shall not deny that there is a degree of weight in the observation, that the interest of each state to be represented in the federal councils will be a security against the abuse of a power over its elections in the hands of the state legislatures. But the security will not be considered as complete, by those who attend to the force of an obvious distinction between the interests of the people in the public felicity, and the interest of their local rulers in the power and consequence of their offices. The people of America may be warmly attached to the government of the union at times, when the particular rulers of particular states, stimulated by the natural rivalship of power, and by the hopes of personal aggrandisement, and supported by a strong faction in each of those states, may be in a very opposite temper. This diversity of sentiment, between a majority of the people, and the individuals who have the greatest credit, in their councils, is exemplified in some of the states, at the present moment, on the present question. The scheme of separate confederacies, which will always multiply the chances of ambition, will be a never failing bait to all such influential characters in the state admi|nistrations as are capable of preferring their own emolument and advancement to the public weal. With so effectual a weapon in their hands as the exclusive power of regulating elections for the national

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government, a combination of a few such men, in a few of the most considerable states, where the temp|tation will always be the strongest, might accomplish the destruction of the union; by seizing the oppor|tunity of some casual dissatisfaction among the people, (and which perhaps they may themselves have excited) to discontinue the choice of members for the federal house of representatives. It ought never to be forgotten, that a firm union of this country, under an efficient government, will probably be an encreasing 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 patronised and abbetted by some of them. Its preservation therefore ought in no case, that can be avoided, to be com|mitted to the guardianship of any but those, whose situation will uniformly beget an immediate interest in the faithful and vigilant performance of the tr • • st.

NUMBER LX. 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 legis|latures. Let us now see what would be 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 respect at least be the security of all. But it is alledged that it might be employed in such a manner as to promote the election of some favourite class of men in

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exclusion of others; by confining the places of election to particular districts, and rendering it impracticable to the citizens at large to partake in the choice. Of all chimerical suppositions, this seems to be the most chimerical. On the one hand no rational calculation of probabilities would lead us to imagine, that the disposition, which a conduct so violent and extraor|dinary would imply, could ever find its way into the national councils; and on the other, it may be con|cluded with certainty, that if so improper a spirit should ever gain admittance into them, it would display itself in a form altogether different and far more decisive.

The improbability of the attempt may be satisfac|torily inferred from this single reflection, that it could never be made without causing an immediate revolt of the great body of the people, headed and directed by the state governments. It is not difficult to con|ceive that this characteristic right of freedom may, in certain turbulent and factious seasons, be violated in respect to a particular class of citizens by a victo|rious majority; but that so fundamental a privilege, in a country situated and enlightened as this is, should be invaded to the prejudice of the great mass of the people, by the deliberate policy of the government, without occasioning a popular revolution, is altogether inconceivable and incredible.

In addition to this general reflection, there are considerations of a more precise nature, which forbid all apprehension on the subject. The dissimilarity in the ingredients, which will compose the national go|vernment, 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, man|ners, and habits of the people of the different parts of the union, to occasion a material diversity of dis|position in their representatives towards the different

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ranks and conditions in society. And though an intimate intercourse under the same government will promote a gradual assimilation of temper and senti|ments, 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 com|ponent parts of the government. The house of repre|sentatives being to be elected immediately by the people; the senate by the state legislatures; the pre|sident by electors chosen for that purpose by the people; there would be little probability of a com|mon interest to cement these different branches in a predilection for any particular class of electors.

As to the senate it is impossible that any regulation of "time and manner," which is all that is proposed to be submitted to the national government in respect to that body, can affect the spirit which will direct the choice of its members. The collective sense of the state legislatures can never be influenced by ex|traneous circumstances of that sort: A consideration which alone ought to satisfy us that the discrimination apprehended would never be attempted. For what inducement could the senate have to concur in a pre|ference 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 counteract that of the other. And we can never suppose that it would embrace the appointments to the senate, unless we can at the same time suppose the voluntary co-operation of the state legislatures. If we make the latter supposition, it then becomes immaterial where the power in question is placed; whether in their hands or in those of the union.

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wealthy and the well born

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 merchants. And I scruple not to affirm, that it is infinitely less likely that either of them should gain an ascendant in the national councils, than that the one or the other of them should predo|minate in all the local councils. The inference will be, that a conduct tending to give an undue pre|ference to either, is much less to be dreaded from the former than from the latter.

The several states are in various degrees addicted to agriculture and commerce. In most, if not all of them, agriculture is predominant. In a few of them, however, commerce nearly divides its empire, and in most of them has a considerable share of influence. In proportion as either prevails, it will be conveyed into the national representation; and for the very reason that this will be an emanation from a greater variety of interests, and in much more various pro|portions, than are to be found in any single state, it will be much less apt to espouse either of them, with a decided partiality, than the representation of any single state.

In a country consisting chiefly of the cultivators of land where the rules of an equal representation

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obtain the landed interest must upon the whole pre|ponderate in the government. As long as this interest prevails in most of the state legislatures, so long it must maintain a correspondent superiority in the national senate, which will generally be a faithful copy of the majorities of those assemblies. It cannot therefore be presumed that a sacrifice of the landed to the mercantile class will ever be a favorite object of this branch of the federal legislature. In applying thus particularly to the senate a general observation suggested by the situation of the country, I am governed by the consideration, that the credulous votaries of state power, cannot upon their own prin|ciples 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 byass 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 objec|tion at any rate, it may be asked, is there not danger of an opposite byass in the national government, which may dispose it to endeavour to secure a mono|poly of the federal administration to the landed class? As there is little likelihood that the supposition of such a byass 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 temptation to violate the consti|tution in favor of the landed class, because that class would in the natural course of things enjoy as great a preponderancy as itself could desire. And thirdly that men accustomed to investigate the sources of public prosperity, upon a large scale, must be too well

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convinced of the utility of commerce, to be inclined to inflict upon it so deep a wound as would be occa|sioned by the entire exclusion of those who would best understand its interests from a share in the manage|ment of them. The importance of commerce in the view of revenue alone must effectually guard it against the enmity of a body which would be con|tinually importuned in its favor by the urgent calls of public necessity.

I the rather consult brevity in discussing the pro|bability 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 exercising their right of suffrage in the choice of that body.

But upon what principle is the discrimination of the places of election to be made in order to answer the purpose of the meditated preference? Are the wealthy and the well born, as they are called, con|fined 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 pre|decessors? If the latter is the case, (as every intel|ligent man knows it to be ) is it not evident that the

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policy of confining the places of elections to par|ticular 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 pre|scribing qualifications of property either for those who may elect, or be elected. But this forms no part of the power to be conferred upon the national government. Its authority would be expressly restricted to the regulation of the times , the places , and the manner of elections. The qualifications of the persons who may choose or be chosen, as has been remarked upon another 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 suggested might be successful; and let it at the same time be equally taken for granted that all the scruples which a sense of duty or an appre|hension of the danger of the experiment might inspire, were overcome in the breasts of the national rulers; still, I imagine, it will hardly be pretended, that they could ever hope to carry such an enterprise into exe|cution, 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 de|monstrated in different parts of these papers; but that the futility of the objection under consideration may appear in the strongest light, it shall be conceded for a moment that such a force might exist; and the national government shall be supposed to be in the actual possession of it. What will be the conclusion? With a disposition to invade the essential rights of the community, and with the means of gratifying that disposition, is it presumable that the persons who were actuated by it would amuse themselves in the ridiculous task of fabricating election laws for securing a preference to a favourite class of men? Would they

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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 ter|minate 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 extremes of their respective states to the places of election, to overthrow their tyrants, and to substitute men who would be disposed to avenge the violated majesty of the people?

NUMBER LXI. The same Subject continued and concluded.

THE more candid opposers of the provision respecting elections contained in the plan of the convention, when pressed in argument, will some|times concede the propriety of that provision; with this qualification however that it ought to have been accompanied with a declaration that all elections should be had in the counties where the electors resided. This say they, was a necessary precaution against an abuse of the power. A declaration of this nature, would certainly have been harmless: So far as it would have had the effect of quieting apprehensions, it might not have been undesirable. But it would in fact have afforded little or no addi|tional security against the danger apprehended; and the want of it will never be considered by an impar|tial and judicious examiner as a serious, still less, as an insuperable objection to the plan. The different views taken of the subject in the two preceding

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papers must be sufficient to satisfy all dispassionate and discerning men, that if the public liberty should ever be the victim of the ambition of the national rulers, the power under examination at least will be guiltless of the sacrifice.

If those who are inclined to consult their jealousy only would exercise it in a careful inspection of the several state constitutions, they would find little less room for disquietude and alarm from the latitude which most of them allow in respect to elections, than from the latitude which is proposed to be allowed to the national government in the same respect. A re|view 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 lengthy and tedious details, I shall content myself with the single example of the state in which I write. The constitution of New-York makes no other provision for locality of elections, than that the members of the assembly shall be elected in the counties , those of the senate in the great districts into which the state is or may be divided; these at present are four in number, and comprehend each from two to six counties. It may readily be perceived, that it would not be more difficult to the legislature of New-York to defeat the suffrages of the citizens of New-York, by confining elections to particular places, than to the legislature of the United States to defeat the suffrages of the citizens of the union, by the like ex|pedient. Suppose, for instance, the city of Albany was to be appointed the sole place of election for the county and district of which it is a part, would not the inhabitants of that city speedily become the only electors of the members both of the senate and assembly, for that county and district? Can we ima|gine that the electors who reside in the remote subdi|visions of the county of Albany, Saratoga, Cam|bridge, &c. or in any part of the county of Mont|gomery, would take the trouble to come to the city

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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 representa|tives? The alarming indifference discoverable in the exercise of so invaluable a privilege under the exist|ing laws, which afford every facility to it, furnishes a ready answer to this question. And, abstracted from any experience on the subject, we can be at no loss to determine that when the place of election is at an inconvenient distance from the elector, the effect upon his conduct will be the same whether that dis|tance be twenty miles or twenty thousand miles. Hence it must appear that objections to the parti|cular modification of the federal power of regulating elections will in substance apply with equal force to the modification of the like power in the constitution of this state; and for this reason it will be impossible to acquit the one and to condemn the other. A similar comparison would lead to the same conclu|sion in respect to the constitutions of most of the other states.

If it should be said that defects in the state consti|tutions furnish no apology for those which are to be found in the plan proposed; I answer, that as the former have never been thought chargeable with in|attention to the security of liberty, where the im|putations thrown on the latter can be shewn to be applicable to them also, the presumption is that they are rather the cavilling refinements of a predetermined opposition, than the well founded inferences of a candid research after truth. To those who are dis|posed to consider, as innocent omissions in the state constitutions, what they regard as unpardonable blemishes in the plan of the convention, nothing can be said; or at most they can only be asked to assign some substantial reason why the representatives of the people in a single state should be more impregnable to the lust of power or other sinister motives, than the

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representatives of the people of the United States? If they cannot do this, they ought at least to prove to us, that it is easier to subvert the liberties of three millions of people, with the advantage of local governments to head their opposition, than of two hundred thousand people, who are destitute of that advantage. And in relation to the point immedi|ately under consideration, they ought to convince us that it is less probable a predominant faction in a single state, should in order to maintain its superiority, incline to a preference of a particular class of electors, than that a similar spirit should take possession of the representatives of thirteen states spread over a vast region, and in several respects distinguishable from each other by a diversity of local circumstances, pre|judices and interests.

Hitherto my observations have only aimed at a vindication of the provision in question, on the ground of theoretic propriety, on that of the danger of placing the power elsewhere, and on that of the safety of placing it in the manner proposed. But there remains to be mentioned a positive advantage which will 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 elec|tions for the federal house of representatives. It is more than possible, that this uniformity may be found by experience to be of great importance to the public welfare; both as a security against the perpetuation of the same spirit in the body, and as a cure for the diseases of faction. If each state may choose its own time of election, it is possible there may be at least as many different periods as there are months in the year. The times of election in the several states as they are now established for local purposes, vary between extremes as wide as March and November. The consequence of this diversity would be, that there could never happen a total dissolution or renovation of the body at one time. If an improper spirit of

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any kind should happen to prevail in it, that spirit would be apt to infuse itself into the new members as they came forward in succession. The mass would be likely to remain nearly the same; assimilating con|stantly to itself its gradual accretions. There is a contagion in example which few men have sufficient force of mind to resist. I am inclined to think that treble the duration in office, with the con|dition of a total dissolution of the body at the same time, might be less formidable to liberty, than one third of that duration subject to gradual and successive alterations.

Uniformity in the time of elections seems not less requisite for executing the idea of a regular rotation in the senate; and for conveniently assembling the legislature at a stated period in each year.

It may be asked, why then could not a time have been fixed in the constitution? As the most zealous adversaries of the plan of the convention in this state, are in general not less zealous admirers of the consti|tution of the state, the question may be retorted, and it may be asked, why was not a time for the like purpose fixed in the constitution of this state? No better answer can be given, than that it was a matter which might safely be entrusted to legislative discretion, and that if a time had been appointed, it might upon experiment have been found less con|venient 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 elec|tions for their own governments, and for the national government, at the same epoch.

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Number lxii. concerning the constitution of the senate, with regard to the qualifications of the members, the manner of appointing them, the equality of representation, the number of the senators and the duration of their appointments..

HAVING examined the constitution of the house of representatives, and answered such of the objections against it as seemed to merit notice▪ I enter next on the examination of the senate. The heads into which this member of the government may be considered, are—I. the qualifications of senators—II. the appointment of them by the state legislatures—III. the equality of representation in the senate—IV. the number of senators, and the term for which they are to be elected—V. the powers vested in the senate.

I. The qualifications proposed for senators, as distinguished from those of representatives, consist in a more advanced age, and a longer period of 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 pro|priety of these distinctions is explained by the nature of the senatorial trust; which requiring greater extent of information and stability of character, requires at the same time that the senator should have reached a period of life most likely to supply these advantages; and which participating immediately in transactions with foreign nations, ought to be exercised by none who are not thoroughly weaned from the preposses|sions and habits incident to foreign birth and educa|tion. The term of nine years appears to be a prudent

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mediocrity between a total exclusion of adopted citi|zens, whose merit and talents may claim a share in the public confidence; and an indiscriminate and hasty admission of them, which might create a chan|nel for foreign influence on the national councils.

II. It is equally unnecessary to dilate on the ap|pointment of senators by the state legislatures. Among the various modes which might have been devised for constituting this branch of the govern|ment, that which has been proposed by the conven|tion is probably the most congenial with the public opinion. It is recommended by the double advan|tage of favoring a select appointment, 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.

of a spirit of amity, and that mutual deference and con|cession which the peculiarity of our political situa|tion rendered indispensable.

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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 con|template rather the advantageous consequences which may qualify the sacrifice.

In this spirit it may be remarked, that the equal vote allowed to each state, is at once a constitutional recognition of the portion of sovereignty remaining in the individual states, and an instrument for pre|serving that residuary sovereignty. So far the equality ought to be no less acceptable to the large than to the small states; since they are not less solici|tous to guard by every possible expedient against an improper consolidation of the states into one simple republic.

Another advantage accruing from this ingredient in the constitution of the senate, is the additional impediment it must prove against improper acts of legislation. No law or resolution can now be passed without the concurrence first of a majority of the people, and then of a majority of the states. It must be acknowledged that this complicated check on legislation may in some instances be injurious as well as beneficial; and that the peculiar defence which it involves in favor of the smaller states would be more rational, if any interests common to them, and distinct from those of the other states, would other|wise be exposed to peculiar danger. But as the larger states will always be able by their power over the supplies, to defeat unreasonable exertions of this pre|rogative of the lesser states; and as the facility and excess of law making seem to be the diseases to

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which our governments are most liable, it is not impossible that this part of the constitution may be more convenient in practice than it appears to many in contemplation.

IV. The number of senators and the duration of their appointment come next to be considered. In order to form an accurate judgment on both these points, it will be proper to enquire into the purposes which are to be answered by a senate; and in order to ascertain these it will be necessary to review the inconveniencies which a republic must suffer from the want of such an institution.

First. It is a misfortune incident to republican government, though in a less degree than to other governments, that those who administer it, may forget their obligations to their constituents, and prove unfaithful to their important trust. In this point of view, a senate, as a second branch of the legislative assembly, distinct from, and dividing the power with, a first, must be in all cases a salutary check on the government. It doubles the security to the people, by requiring the concurrence of two distinct bodies in schemes of usurpation or perfidy, where the ambition or corruption of one, would otherwise be sufficient. This is a precaution founded on such clear principles, and now so well understood in the United States, that it would be more than superfluous to enlarge on it. I will barely remark that as the improbability of sinister combinations will be in proportion to the dissimilarity in the genius of the two bodies; it must be politic to distinguish them from each other by every circum|stance which will consist with a due harmony in all proper measures, 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 nume|rous assemblies, to yield to the impulse of sudden and violent passions, and to be seduced by factious

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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 be free from it, and consequently ought to be less numerous. It ought moreover to possess great firm|ness, 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 of legislation. It is not possible that an assembly of men called for the most part from pursuits of a private nature, continued in appoint|ment for a short time, and led by no permanent motive to devote the intervals of public occupation to a study of the laws, the affairs and the comprehensive interests of their country, should, if left wholly to themselves, escape a variety of important errors in the exercise of their legislative trust. It may be affirmed, on the best grounds, that no small share of the present embarrassments of America is to be charged on the blunders of our governments; and that these have proceeded from the heads rather than the hearts of most of the authors of them. What indeed are all the repealing, explaining and amend|ing laws, which fill and disgrace our voluminous codes, but so many monuments of deficient wisdom; so many impeachments exhibited by each succeeding, against each preceding session; so many admonitions to the people of the value of those aids which may be expected from a well constituted senate?

A good government implies two things; first, fidelity to the object of government, which is the happiness of the people; secondly, a knowledge of the means by which that object can be best attained. Some governments are deficient in both these qua|lities:

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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 merits particular notice, it provides for the last 〈◊〉 〈◊〉 mode which increases the security for the first.

Fourth. The mutability in the public councils, arising from a rapid succession of new members, how|ever qualified they may be, points out in the strongest manner, the necessity of some stable institution in the government. Every new election in the states, is found to change one half of the representatives. From this change of men must proceed a change of opinions; and from a change of opinions, a change of measures. But a continual change even of good measures is inconsistent with every rule of prudence, and every prospect of success. The remark is veri|fied in private life, and becomes more just as well as more important, in national transactions.

To trace the mischievous effects of a mutable government would fill a volume. I will hint a few only, each of which will be perceived to be a source of innumerable others.

In the first place it forfeits the respect and confi|dence of other nations, and all the advantages con|nected 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 for|tunes out of his. One nation is to another what one individual is to another; with this melancholy distinction perhaps, that the former with fewer of the benevolent emotions than the latter, are under fewer restraints also from taking undue advantage of

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the indiscretions of each other. Every nation con|sequently, whose affairs betray 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 example of her own situation. She finds that she is held in no respect by her friends; that she is the derision of her enemies; and that she is a prey to every nation which has an interest in speculating on her fluctuating councils and embarrassed affairs.

The internal effects of a mutable policy are still more calamitous. It poisons the blessings of liberty itself. It will be of little avail to the people that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulged, 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 unrea|sonable advantage it gives to the sagacious, the enter|prising and the moneyed few, over the industrious and uninformed mass of the people. Every new regu|lation concerning commerce or revenue; or in any manner affecting the value of the different species of property, presents a new harvest to those who watch the change and can trace its consequences; a harvest reared not by themselves but by the toils and cares of the great body of their fellow citizens. This is a state of things in which it may be said with some truth that laws are made for the few not for the many .

In another point of view great injury results from an unstable government. The want of confidence in the public councils damps every useful undertaking;

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the success and profit of which may depend on a con|tinuance of existing arrangements. What prudent merchant will hazard his fortunes in any new branch of commerce, when he knows not but that his plans may be rendered unlawful before they can be execu|ted? What farmer or manufacturer will lay himself out for the encouragement given to any particular cultivation or establishment, when he can have no assurance that his preparatory labours and advances will not render him a victim to an inconstant govern|ment? In a word, no great improvement or lau|dable enterprise can go forward, which requires the auspices of a steady system of national policy.

But the most deplorable effect of all is that dimi|nution of attachment and reverence which steals into the hearts of the people, towards a political system which betrays so many marks of infirmity, and dis|appoints so many of their flattering hopes. No government any more than an individual will long be respected, without being truly respectable, nor be truly respectable without possessing a certain portion of order and stability.

NUMBER LXIII. 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 government, the esteem of so • • eign powers will not only by forfeited by an unenlightened and variable policy, proceeding from the causes already mentioned;

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but the national councils will not possess that sensi|bility to the opinion of the world, which is perhaps not less necessary in order to merit, than it is to obtain, its respect and confidence.

An attention to the judgment of other nations is important to every government for two reasons: The one is, that independently of the merits of any parti|cular plan or measure, it is desirable on various accounts, that it should appear to other nations as the offspring of a wise and honorable policy: The second is, that in doubtful cases, particularly where the national councils may be warped by some strong passion, or momentary interest, the presumed or known opinion of the impartial world, may be the best guide that can be followed. What has not America lost by her want of character with foreign nations? And how many errors and follies would she not have avoided, if the justice and propriety of her measures had in every instance been previously tried by the light in which they would probably appear to the unbiassed part of mankind.

Yet however requisite a sense of national character may be, it is evident that it can never b • • sufficiently possessed by a numerous and changeable body. It can only be found in a number so small, that a sen|sible degree of the praise and blame of public mea|sures may be the portion of each individual; or in an assembly so durably invested with public trust, that the pride and consequence of its members may be sensibly incorporated with the reputation and prosperity of the community. The half-yearly repre|sentatives of Rhode-Island, would probably have been little affected in their deliberations on the iniquitous measures of that state, by arguments drawn from the light in which such measures would be viewed by foreign nations, or even by the sister states; whilst it can scarcely be doubted, that if the concurrence of a select and stable body had been necessary, a regard to national character alone,

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would have prevented the calamities under which that misguided people is now labouring.

I add as a sixth defect, the want in some impor|tant cases of a due responsibility in the government to the people, arising from that frequency of elec|tions, which in other cases produces this responsibi|lity. The remark will perhaps appear not only new but paradoxical. It must neverthele • • s be acknow|ledged, 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, most relate to operations of that power, of which a ready and proper judgement can be formed by the consti • • uents. The objects of government may be divided into two gene|ral classes; the one depending on measures which have singly an immediate and sensible operation; the other depending on a succession of well chosen and well connected measures, which have a gradual and perhaps unobserved operation. The importance of the latter description to the collective and permanent welfare of every country needs no explanation. And yet it is evident, that an assembly elected for so short a term as to be unable to provide more than one or two links in a chain of measures, on which the general welfare may essentially depend, ought not to be answerable for the final result, any more than a steward or tenant, engaged for one year, could be justly made to answer for places or improvements, which could not be accomplished in less than half a dozen years. Nor is it possible for the people to esti|mate the share of influence which their annual assem|blies may respectively have on events resulting from the mixed transactions of several years. It is suffi|ciently difficult, at any rate, 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.

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The proper remedy for this defect must be an addi|tional body in the legislative department, which hav|ing sufficient permanency to provide for such objects as require a continued attention, and a train of mea|sures, may be justly and effectually answerable for the attainment of those objects.

Thus far I have considered the circumstances which point out the necessity of a well constructed senate, only as they relate to the representatives of the people. To a people as little blinded by prejudice, or cor|rupted by flattery, as those whom I address, I shall not scruple to add, that such an institution may be sometimes necessary, as a defence to the people against their own temporary errors and delusions. As the cool and deliberate sense of the community ought in all governments, and actually will in all free govern|ments 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 misre|presentations of interested men, may call for measures which they themselves will afterwards be the most ready to lament and condemn. In these critical mo|ments, how salutary will be the interference of some temperate and respectable body of citizens, in order to check the misguided career, and to suspend the blow meditated by the people against themselves, until rea|son, 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 govern|ment 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 vio|lent passions; or to the danger of combining in the

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pursuit of unjust measures. I am far from denying that this is a distinction of peculiar importance. I have on the contrary endeavoured in a former paper to shew that it is one of the principle recomendations of a confederated republic. At the same time this advantage ought not to be considered as superseding the use of auxiliary precautions. It may even be remarked that the same extended situation which will exempt the people of America from some of the dan|gers incident to lesser republics, will expose them to the inconveniency of remaining for a longer time, under the influence of those misrepresentations which the combined industry of interested men may succeed in d • • stributing among them.

It adds no small weight to all these considerations, to recollect, that history informs us of no long lived republic which had not a senate. Sparta, Rome and Carthage are in fact the only states to whom that character can be applied. In each of the two first there was a senate for life. The constitution of the senate in the last, is less known. Circumstantial evi|dence makes it probable that it was not different in this particular from the two others. It is at least cer|tain that it had some quality or o • • her which rendered it an anchor against popular fluctuations; and that a smaller council drawn out of the senate was appointed not only for life, but filled up vacancies itself. These examples, though as unfit for the imitation as they are repugnant to the genius of America, are notwith|standing, when compared with the fugitive and tur|bulent existence of other antient republics, very in|structive proofs of the necessi • • y of some institution that will blend stability with liberty. I am not un|aware of the circumstances which distinguish the American from other popular governments, as well an|tient as modern; and which render extreme circum|spection necessary in reasoning from the one case to the other. But after allowing due weight to this con|sideration, it may still be maintained that there are

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many points of similitude which render these exam|ples not unworthy of our attention. Many of the defects as we have seen, which can only be supplied by a senatorial institution, are common to a numerous assembly frequently elected by the people, and to the people themselves. There are others peculiar to the former, which require the controul 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 Ameri|can and other republics, consists in the principle of representation, which is the pivot on which the for|mer move, and which is supposed to have been un|known to the latter, or at least to the antient part of them. The use which has been made of this differ|ence, in reasonings contained in former papers, will have shewn that I am disposed neither to deny its ex|istance nor to undervalue its importance. I feel the less restraint therefore in observing that the position concerning the ignorance of the antient governments on the subject of representation is by no means pre|cisely true in the latitude commonly given to it. Without entering into a disquisition which here would be misplaced, I will refer to a few known facts in support of what I advance.

In the most pure democracies of Greece, many of the executive functions were performed not by the people themselves, but by officers elected by the people, and representing the people in their executive capacity.

Prior to the reform of Solon, Athens was governed by nine archons, annually elected by the people at large . The degree of power delegated to them seems to be left in great obscurity. Subsequent to that period,

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we find an assembly first of four and afterwards of six hundred members, annually elected by the people ; and partially representing them in their legislative capacity, since they were not only associated with the people in the function of making laws; but had the exclusive right o • • originating legislative propositions to the people. The senate of Carthage also, whatever might be its power or the duration of its appoint|ment, 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 wi • • h the ephori, and in Rome with the tribunes; two bodies, small indeed in number, but annually elected by the who • • e body of the people , and considered as the representatives of the people, almost in their plenipotentiary capacity. The cosme of Crete were also annually elected by the people: and have been considered by some authors as an institution analogous to those of Sparta and Rome, with this difference only, that in the election of that representative body the right of suffrage was com|municated 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 over|looked in their political constitutions. The true distinction between these and the American govern|ments 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 d • • stinction however thus qualified must be admitted to leave a most advantageous superiority in favour of the United States. But to ensure 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 repre|sentative government, could have succeeded within

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the narrow limits occupied by the democracies of Greece.

In answer to all these arguments, suggested by rea|son, illustrated by examples, and enforced by our our own experience, the jealous adversary of the constitution will probably content himself with repeat| •• •• g, that a senate appointed not immediately by the p • • rple, and for the term of six years, must gradually i • • quire a dangerous pre-eminence in the government, 〈◊〉 〈◊〉 finally transform it into a tyrannical aristocracy.

To this general answer the general reply ought to b • • sufficient; that liberty may be endangered by the abuses of liberty, as well as by the abuses of power; tha • • 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 evi|dent 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 mem|bers would otherwise regenerate the whole body. Without exerting the means of corruption with equal success on the house of representatives, the opposition of that co-equal branch of the government would inevitably defeat the attempt; and without corrupting the people themselves, a succession of new representatives would speedily restore all things to their pristine order. Is there any man who can seriously persuade himself that the proposed senate can, by any possible means within the compass of human address, arrive at the object of a lawless am|bition, through all these obstructions?

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If reason condemns the suspicion, the same sen|tence is pronounced by experience. The constitu|tion of Maryland furnishes the most apposite ex|ample. The senate of that state is elected, as the federal senate will be, indirectly by the people; and for a term less by one year only, than the federal se|nate. It is distinguished also by the remarkable pre|rogative of filling up its own vacancies within the term of its appointment; and at the same time, is not under the control of any such rotation, as is provided for the federal senate. There are some other lesser distinctions, which would expose the for|mer to colorable subjections that do not lie against the latter. If the federal senate therefore really contained the danger which has been so loudly pro|claimed, some symptoms at least of a like danger ought by this time to have been betrayed by the se|nate of Maryland; but no such symptoms have ap|peared. On the contrary the jealousies at first en|tertained 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 oper|ation of this part of it, a reputation in which it will probably not be rivalled by that of any state in the union.

But if any thing could silence the jealousies on this subject, it ought to be the British example. The senate there, instead of being elected for a term of six years, and of being unconfined to particular families or fortunes, is an hereditary assembly of opulent nobles. The house of representatives, instead of being elected for two years, and by the whole body of the people, is elected for seven years; and in very great proportion, by a very small proportion of the people. Here unquestionably ought to be seen in full display, the aristocratic usurpations and tyranny, which are at some future period to be exemplified in

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the United States. Unfortunately however for the antifederal 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 repre|sentatives of the people, were found an overmatch for the senate for life, continually gained on its au|thority, and finally drew all power into their own hands. The tribunes of Rome, who were the repre|sentatives 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 remarkab • • e, as unanimity was required in every act of the tribunes, even after their number was augmented to ten. It proves the irre|sistable force possessed by that branch of a free govern|ment, which has the people on its side. To these examples might be added that of Carthage, whose senate, according to the testimony of Polybius, instead of drawing all power into its vortex, had at the com|mencement of the second punic war, lost almost the whole of its original portion.

Besides the conclusive evidence resulting from this assemblage of facts, that the federal senate will never be able to transform its • • lf, by gradual usurpations, into an independent and aristocratic body; we are warranted in believing that if such a revolution should ever happen from causes which the foresight of man cannot guard against, the house of representa|tives with the people on their side will at all times be able to bring back the constitution to its primi|tive form and principles. Against the force of the immediate representatives of the people, nothing will be able to maintain even the constitutional authority

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of the senate, but such a display of enlightned policy, and attachment to the public good, as will divide with that branch of the legislature, the affections and support of the entire body of the people themselves.

NUMBER LXIV. 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 pa • • ticular persons, and opponents to parti|cular measures, seldom confine their censures to such things only in either, as are worthy of blame. Unless on th • • s principle, it is difficult to explain the motives of their conduct, who condemn the proposed consti|tution in the aggregate, and treat with severity some of the most unexceptionable articles in it.

by and with advice and consent of the senate to make treaties PROVIDED TWO THIRDS OF THE SENA|TORS PRESENT CONCUR .

The power of making treaties is an important one, especia • • ly as it relates to war, peace and commerce; and it should not be delegated but in such a mode, and with such precautions, as will afford the highest security, that it will be exercised by men the best qualified for the purpose, and in the manner most conducive to the public good. The convention appear to have been attentive to both these points— they have directed the president to be cho • • en by select bodies of electors to be deputed by the peopl • • for that express purpose; and they have committed the appointment of senators to the state leg • • slatures. This mode has in such cases, vastly the advantage of

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elections by the people in their collective capacity, where the activity of party zeal taking advantage of the supiness, the ignorance, and the hopes and fears of the unwary and interested, often places men in office by the votes of a small proportion of the electors.

As the select assemblies for choosing the president, as well as the state legislatures who appoint the sena|tors will in general be composed of the most enlight|ned and respectable citizens, there is reason to pre|sume that their attention and their votes will be di|rected to those men only who have become the most distinguished by their abilities and virtue, and in whom the people perceive just grounds for confidence. The constitution manifests very particular attention to this object. By excluding men under thirty five from the first office, and those under thirty from the second, it confines the elections to men of whom the people have had time to form a judgment, and with respect to w • • om they will not be liable to be deceived by those brilliant appearances of genius and patri|otism, which like transient meteors sometimes mis|lead 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 poss • • ss in a greater degree than kings, the means of extensive and accurate in • • or|mation 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 pre|sident and senators so chosen will always be of the number of those who best understand our national in|terests, whether considered in relation to the several states or to foreign nations, who are best able to pro|mote those interests, and whose reputation for inte|grity inspires and merits confidence. With such men the power of making treaties may be safely lodged.

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Although the absolute necessity of system in the conduct of any business is universally known and acknowledged, yet the high importance of it in na|tional affairs has not yet become sufficiently impressed on the public mind. They who wish to commit the power under consideration to a popular assembly, composed of members constantly coming and going in quick succession, seem not to recollect that such a body must necessarily be inadequate to the attainment of those great objects, which require to be steadily contemplated in all their relations and circumstances, and which can only be approached and atchieved by measures, which not only talents, but also exact infor|mation and often much time are necessary to concert and to execute. It was wise therefore in the conven|tion 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 suffic • • ent time to become perfectly acquainted with our nati|onal 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 informations and of render|ing their accumulating experience more and more beneficial to their country. Nor has the convention discovered less prudence in providing for the frequent elections of senators in such a way, as to obviate the inconvenience of periodically transferring those great affairs entirely to new men, for by leaving a conside|rable residue of the old ones in place, uniformity and order, as well as a constant succession of official infor|mation, 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 conformity be carefully maintained, and they who assent to the

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truth of this position, will see and confess that it is well provided for by making the concurrence of the senate necessary both to treaties and to laws.

It seldom happens in the negotiation of treaties of whatever nature, but that perfect secrecy and imme|diate dispatch are sometimes requisite. There are cases where the most useful intelligence may be ob|tained, if the persons possessing it can be relieved from apprehensions of discovery. Those apprehen|sions will operate on those persons, whether they are actuated by mercenary or friendly motives, and there doubtless are many of both descriptions, who would rely on the secrecy of the president, but who would not confide in that of the senate, and still less in that of a large popular assembly. The conven • • ion have done well therefore in so disposing of the power of making treaties, that although the president must, in forming them, act by the advice and consent of the senate, yet he will be able to manage the business of intelligence in such manner as prudence may suggest.

They who have turned their attention to the affairs of men, must have perceived that there are tides in them. Tides, very irregular in their duration, strength and direction, and seldom found to run twice exactly in the same manner or measure. To discern and to profit by these tides in national affairs, is the business of those who preside over them; and they who have had much experience on this head inform us, that there frequently are occasions when days, nay even when hours are precious. The loss of a battle, the death of a prince, the removal of a minister, or other circumstances intervening to change the present posture and aspect of affairs, may turn the most favo|rable tide into a course opposite to our wishes. As in the field, so in the cabinet, there are moments to be seized as they pass, and they who preside in either, should be left in capacity to improve them. So often and so essentially have we heretofore suffered, from the want of secrecy and dispatch, that the constitution

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would have been inexcusibly defective if no attention had been paid to those objects. Those matters which in negotiations usually require the most secrecy and the most dispatch, are those preparatory and auxiliary measurer which are no otherways important in a na|tional view, then as they tend to facilitate the attain|ment of the objects of the negotiation. For these the president will find no deficulty to provide, and should any circumstance occur which requires the advice and consent of the senate, he may at any time convene them. Thus we see that the constitution provides that our negotiations for treaties shall have every advantage which can be derived from talents, information, inte|grity and deliberate investigations on the one hand, and from secrecy and dispatch on the other.

But to this plan as to most others that have ever appeared, objections are contrived and urged.

Some are displeased with it, not on account of any errors or defects in it, but because as the treaties when made are to have the force of laws, they should be made only by men invested with legislative authority. These gentlemen seem not to consider that the judg|ments of our courts, and the commissions constitu|tionally given by our governor, are as valid and as binding on all persons whom they concern, as the laws passed by our legislature are. All constitutional acts of power, whether in the executive or in the judicial department, have as much legal validity and obliga|tion as if they proceeded from the legislature, and therefore whatever name be given to the power of making treaties, or however obligatory they may be when made, certain it is that the people may with much propriety commit the power to a distinct body from the legislature, the executive or the judicial. It surely does not follow that because they have given the power of making laws to the legislature, that therefore they should likewise give them power to do every other act of sovereignty by which the citizens are to be bound and affected.

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Others, though content that treaties should be made in the mode proposed, are averse to their being the supreme laws of the land. They insist and profess to believe, that treaties, like acts of assembly, should be repealable at pleasure. This idea seems to be new and peculiar to this country, but new errors as well as new truths often appear. These gentlemen would do well to reflect that a treaty is only another name for a bargain; and that it would be impossible to find a nation who would make any bargain with us, which should be binding on them absolutely , but on us only so long and so far as we may think proper to be bound by it. They who make laws may with|out doubt amend or repeal them, and it will not be disputed that they who make treaties may alter or cancel them; but still let us not forget that treaties are made not by only one of the contracting parties but by both, and consequently that as the consent of both was essential to their formation at first, so must it ever afterwards be to alter or cancel them. The proposed constitution therefore has not in the least extended the obligation of treaties. They are just as binding, and just as far beyond the lawful reach of legislative acts now, as they will be at any future period, or under any form of government.

However useful jealousy may be in republics, yet when, like bile in the natural, it abounds too much in the body politic; the eyes of both become very liable to be deceived by the delusive appearances which that malady casts on surrounding objects. From this cause probably proceed the fears and apprehensions of some, that the president and senate may make treaties without an equal eye to the interests of all the states. Others suspect that the two-thirds will oppress the remaining third, and ask whether those gentlemen are made sufficiently responsible for their conduct— whether if they act corruptly they can be punished; and if they make disadvantageous treaties, how are we to get rid of those treaties?

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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 of attention; and the government must be a weak one indeed, if it should forget that the good of the whole can only be promoted by advancing the good of each of the parts or members which compose the whole. It will not be in the power of the president and senate to make any treaties, by which they and their families and estates will not be equally bound and affected with the rest of the community; and having no private 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 inter|course with the world, or possess a heart very suscep|tible of such impressions, who can think it probable that the president and two-thirds of the senate will ever be capable of such unworthy conduct. The idea is too gross and too invidious to be entertained. But in such a case, if it should ever happen, the treaty so obtained from us would, like all other fraudulent contracts, be null and void by the laws of nations.

With respect to their responsibility, it is difficult to conceive how it could be encreased. Every con|sideration that can influence the human mind, such as honour, oaths, reputat • • on, conscience, the love of country, and family affections and attachments, afford security for their fidelity. In short, as the constitution has taken the utmost care that they shall be men of talents and integrity, we have reason to be persuaded that the treaties they make will be

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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 behaviour is amply afforded by the article on the subject of impeachments.

NUMBER LXV. 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 executive in the appointment to offices, and in their judicial character as a court for the trial of impeachments. As in the business of appointments the executive will be the principal agent, the provi|sions relating to it will most properly be discussed in the examination of that department. We will there|fore conclude this head with a view of the judicial character of the senate.

A well constituted court for the trial of impeach|ments, is an object not more to be desired than dif|ficult to be obtained in a government wholly elective. The subjects of its jurisdiction are those offences which proceed from the misconduct of public men, or in other words from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself. The prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties, more

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or less friendly, or inimical, to the accused. In many cases, it will connect itself with the pre-existing fac|tions, and will inlist all their animosities, partialities, influence and interest on one side, or on the other; and in such cases there will always be the greatest danger, that the decision will be regulated more by the comparative strength of parties than by the real demonstrations of innocence or guilt.

The delicacy and magnitude of a trust, which so deeply concerns the political reputation and existence of every man engaged in the administration of public affairs, speak for themselves. The difficulty of placing it rightly in a government resting entirely on the basis of periodical electons will as readily be perceived, when it is considered that the most con|spicuous characters in it will, from that circumstance, be too often the leaders, or the tools of the most cun|ning or the most numerous faction; and on this account can hardly be expected to possess the requi|site neutrality towards those whose conduct may be the subject of scrutiny.

The convention, it appears, thought the senate the most fit depositary of this important trust. Those who can best discern the intrinsic difficulty of the thing, will be least hasty in condemning that opinion; and will be most inclined to allow due weight to the arguments which may be supposed to have produced it.

What it may be asked, is the true spirit of the institution itself? Is it not designed as a method of NATIONAL INQUEST into the conduct of public men? If this be the design of it, who can so pro|perly be the inquisitors for the nation as the repre|sentatives of the nation themselves? It is not dispu|ted 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 arrangement, strongly plead for an

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admission of the other branch of that body to a share of the inquiry? The model, from which the idea of this institution has been borrowed, pointed out that course to the convention. In Great-Britain, it is the province of the house of commons to prefer the impeachment; and of the house of lords to decide upon it. Several of the state constitutions have followed the example. As well the latter as the former seem to have regarded the practice of im|peachments, as a bridle in the hands of the legisla|tive body upon the executive servants of the govern|ment. Is not this the true light in which it ought to be regarded?

Where else, than in the senate, could have been found a tribunal sufficiently dignified, or sufficiently independent? What other body would be likely to feel confidence enough in its own situation , to preserve unawed and uninfluenced the necessary impartiality between an individual accused, and the representa|tives of the people, his accusers?

Could the supreme court have been relied upon as answering this description? It is much to be doubted whether the members of that tribunal would, at all times, be endowed, with so eminent a portion of for|titude, as would be called for in the execution of so difficult a task, and it is still more to be doubted, whether they would possess the degree of credit and authority, which might, on certain occasions be indis|pensable, 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 tranquility. The hazard in both these respects could only be avoided, if at all, by rendering that tribunal more numerous than would consist with a reasonable attention to economy. The necessity of a numerous court for the trial of impeach|ments is equally dictated by the nature of the pro|ceeding. This can never be tied down by such strict

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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 pro|nounce the sentence of the law and the party who is to receive or suffer it. The awful discretion, which a court of impeachments must necessarily have, to doom to honour or to infamy the most confidential and the most distinguished characters of the commu|nity, forbids the commitment of the trust to a small number of persons.

These considerations seem alone sufficient to autho|rise a conclusion that the supreme court would have been an improper substitute for the senate, as a court of impeachments. There remains a further conside|ration which will not a little strengthen this con|clusion. It is this—The punishment, which may be the consequence of conviction upon impeachment, is not to terminate the chastisement of the offender. After having been sentenced to a perpetual ostracism from the esteem and confidence, and honors and emo|luments of his country, he will still be liable to pro|secution and punishment in the ordinary course of law. Would it be proper that the persons, who had disposed of his fame and his most valuable rights as a citizen in one trial, should in another trial, for the fame 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 decision? Those, who know any thing of human nature, will not hesitate to answer these questions in the affir|mative; 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

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would in a great measure be deprived of the double security intended them by a double trial. The loss of life and estate would often be virtually included in a sentence, which, in its terms, imported nothing more than dismission from a present, and disqualification for a future office. It may be said, that the inter|vention of a jury, in the second instance, would obviate the danger. But juries are frequently influenced by the opinions of judges. They are sometimes induced to find special verdicts which refer the main question to the decision of the court. Who would be willing to stake his life and his estate upon the verdict of a jury, acting under the auspices of judges, who had predetermined his guilt?

Would it have been an improvement of the plan to have united the supreme court with the senate in the formation of the court of impeachments? This union would certainly have been attended with several advantages; but would they not have been overbal|lanced 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 inconveniencies of an entire incorporation of the former into the latter will be substantially avoided. This was perhaps the pru|dent mean. I forbear to remark upon the additional pretext for clamour, against the judiciary, which so considerable an augmentation of its authority would have afforded.

Would it have been desirable to have composed the court for the trial of impeachments of persons wholly distinct from the other departments of the government? There are weighty arguments, as well against, as in favour of such a plan. To some minds, it will not appear a trivial objection, that it would tend to

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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 atten|tion, is this.—A court formed upon such a plan would either be attended with heavy expence, or might in practice be subject to a variety of casualities and inconveniencies. It must either consist of per|manent officers stationary at the seat of government, and of course entitled to fixed and regular stipends, or of certain officers of the state governments, to be called upon whenever an impeachment was actually depending. It will not be easy to imagine any third mode materially different, which could rationally be proposed. As the court, for reasons already given, ought to be numerous; the first scheme will be repro|bated 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 in|nocent, from the procrastinated determination of the charges which might be brought against them; the advantage to the guilty, from the opportunities which delay would afford to intrigue and corruption, and in some cases the detriment to the state, from the prolonged inaction of men, whose firm and faithful execution of their duty might have exposed them to the persecution of an intemperate or designing majo|rity in the house of representatives. Though this latter supposition may seem harsh, and might not be likely often to be verified; yet it ought not to be forgotten, that the demon of faction will at certain seasons extend his sceptre over all numerous bodies of men.

But though one or the other of the substitutes which have been examined, or some other that might be devised, should be thought preferable to the plan, in this respect, reported by the convention, it will not

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follow that the constitution ought for this reason to be rejected. If mankind were to resolve to agree in no institution of government, until every part of it had been adjusted to the most exact standard of perfec|tion, 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 under|take to unite the discordant opinions of a whole com|munity, in the same judgement of it; and to pre|vail upon one conceited projector to renounce his in|fallible criterion, for the fallible criterion of his more conceited neighbour? To answer the purpose of the adversaries of the constitution, they ought to prove not merely, that particular provisions in it are not the best, which might have been imagined; but that the plan upon the whole is bad and pernicious.

NUMBER LXVI. 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 remains of any unfavorable impressions which may still exist, in regard to this matter.

The first of these objections is, that the provision in question confounds legislative and judiciary autho|rities in the same body, in violation of that impor|tant and well-established maxim, which requires a separation between the d • • fferent departments of power. The true meaning of this maxim has been discussed and ascertained in another place, and has been shewn to be entirely compatible with a partial intermixture of those departments for special pur|poses, preserving them in the main distinct and

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unconnected. This partial intermixture is even in some cases not only proper, but necessary to the mutual defence of the several members of the govern|ment against each other. An absolute or qualified negative in the executive, upon the acts of the legis|lative body, is admitted by the ablest adepts in poli|tical science, to be an indispensable barrier against the encroachments of the latter upon the former. And it may perhaps with not less reason, be con|tended, that the powers relating to impeachments are, as before intimated, an essential check in the hands of that body upon the encroachments of the executive. The division of them between the two branches of the legislature; assigning to one the right of accusing, to the other the right of judging; avoids the inconvenience of making the same persons both accusers and judges; and guards against the danger of persecution from the prevalency of a factious spirit in either of those branches. As the concurrence of two-thirds of the senate will be requi|site to a condemnation, the security to innocence, from this additional circumstance, will be as com|plete as itself can desire.

It is curious to observe with what vehemence this part of the plan is assailed, on the principle here taken notice of, by men who profess to admire without exception the constitution of this state; while that con|stitution makes the senate, together with the chan|cellor 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 pro|portion, in point of numbers, of the chancellor and judges to the senators, is so inconsiderable, that the judiciary authority of New-York in the last resort may, with truth, be said to reside in its senate. If the plan of the convention be in this respect chargeable with a departure from the celebrated maxim which has been so often mentioned, and seems to be so little

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understood, how much more culpable must be the constitution of New-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 pre|dominancy to senatorial influence. To an objection so little precise in itself, 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, to examine each power by itself, and to decide on general principles where it may be depo|sited with most advantage and least inconvenience?

If we take this course it will lead to a more intelli|gible, if not to a more certain result. The disposi|tion of the power of making treaties, which has obtained in the plan of the convention, will then, if I mistake not, appear to be fully justified by the con|siderations stated in a former number, and by others which will occur under the next head of our enqui|ries. The expediency of the junction of the senate with the executive in the power of appointing to offices will, I trust, be placed in a light not less satisfactory, in the disquisitions under the same head. And I flatter myself the observations in my last paper must have gone no inconsiderable way towards proving that it was not easy, if practicable, to find a more fit receptacle for the power of determining impeach|ments,

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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 discarded from our reasonings.

But this hypothesis, such as it is, has already been refuted in the remarks applied to the duration in office prescribed for the senators. It was by them shewn, as well on the credit of historical examples, as from the reason of the thing, that the most popular branch of every government, partaking of the repub|lican genius, by being generally the favourite of the people, will be as generally a full match, if not an over|match, for every other member of the government.

But independent of this most active and operative principle; to secure the equilibrium of the national house of representatives, the plan of the convention has provided in its favour, several important counter|poises to the additional authorities, to be conferred upon the senate. The exclusive privilege of origi|nating money bills will belong to the house of repre|sentatives. The same house will possess the sole right of instituting impeachments: Is not this a complete counterballance to that of determining them?—The same house will be the umpire in all electons of the president, which do not unite the suffrages of a majo|rity of the whole number of electors; a case which it cannot be doubted will sometimes, if not frequently happen. The constant possibility of the thing must be a fruitful source of influence to that body. The more it is contemplated, the more important will appear this ultimate, though contingent power of deciding the competitions of the most illustrious citi|zens of the union, for the first office in it. It would not perhaps be rash to predict, that as a mean of influ|ence it will be found to outweigh all the peculiar attributes of the senate.

A third objection to the senate as a court of im|peachments is drawn from the agency they are to have in the appointments to office. It is imagined

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that they would be too indulgent judges of the con|duct of men, in whose official creation they had par|ticipated. The principle of this objection would condemn a practice, which is to be seen in all the state governments, if not in all the governments, with which we are acquainted: I mean that of ren|dering those, who hold offices during pleasure, depen|dent on the pleasure of those, who appoint them. With equal plausibility might it be alledged in this case that the favouritism of the latter would always be an asylum for the misbehaviour of the former. But that practice, in contradiction to this principle, pro|ceeds upon the presumption, that the responsibility of those who appoint, for the fitness and competency of the persons, on whom they bestow their choice, and the interest they have in the respectable and pros|perous administration of affairs, will inspire a suffi|cient disposition, to dismiss from a share in it, all such who, by their conduct, may have proved themselves unworthy of the confidence reposed in them. Though facts may not always correspond with this presumption yet if it be in the main just, it must destroy the sup|position, that the senate, who will merely sanction the choice of the executive, should feel a byass to|wards the objects of that choice, strong enough to blind them to the evidences of guilt so extroardinary 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 byass, it might be found in the nature of the agency of the senate, in the bu|siness 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 pre|ference

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to some other person, at the very moment they were assenting to the one proposed; because there might be no positive ground of opposition to him; and they could not be sure, if they withheld their assent, that the subsequent nomination would fall upon their own favourite, or upon any other per|son in their estimation more meritorious than the one rejected. Thus it could hardly happen that the ma|jority of the senate would feel any other complacency towards the object of an appointment, than such, as the appearances of merit, might inspire, and the proofs of the want of it, destroy.

A fourth objection to the senate, in the capacity of a court of impeachments, is derived from their union with the executive in the power of making treaties. This, it has been said, would constitute the senators their own judges, in every case of a corrupt or perfidious execution of that trust. After having combined with the executive in betraying the interests of the nation in a ruinous treaty, what pro|spect, it is asked, would there be of their being made to suffer the punishment, they would deserve, when they were themselves to decide upon the accusation brought against them for the treachery of which they had been guilty?

This objection has been circulated with more ear|nestness and with greater shew of reason, than any other which has appeared against this part of the plan; and yet I am deceived if it does not rest upon an erroneous foundation.

The security essentially intended by the constitu|tion against corruption and treachery in the formation of treaties, is to be sought for in the numbers and characters of those who are to make them. The JOINT AGENCY of the chief magistrate of the union, and of two thirds of the members of a body selected by the collective wisdom of the legislatures of the several states, is designed to be the pledge for the fidelity of the national councils in this particular.

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The convention might with propriety have meditated the punishment of the executive, for a deviation from the instructions of the senate, or a want of in|tegrity in the conduct of the negotiations committed to him: They might also have had in view the pu|nishment of a few leading individuals in the senate, who should have prostituted their influence in that body, as the mercenary instruments of foreign cor|ruption: But they could not with more or with equal propriety have contemplated the impeachment and punishment of two thirds of the senate, consenting to an improper treaty, than of a majority of that or of the other branch of the national legislature, con|senting 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 of legislation, should escape with impunity more than two-thirds of the senate, sacri|ficing 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 in|dependence of the deliberations of the body, that the members of it should be exempt from punishment for acts done in a collective capacity; and the secu|rity to the the society must depend on the care which is taken to confide the trust to proper hands, to make it their interest to execute it with fidelity, and to make it as difficult as possible for them to combine in any interest opposite to that of the public good.

So far as might concern the misbehaviour of the executive in perverting the instructions, or contra|vening 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 vindi|cate

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their own authority. We may thus far count upon their pride, if not upon their virtue. And so far even as might concern the corruption of leading members, by whose arts and influence the majority may have been inveigled into measures odious to the community; if the proofs of that corruption should be satisfactory, the usual propensity of human nature will warrant us in concluding, that there would be commonly no defect of inclination in the body, to divert the public resentment from themselves, by a ready sacrifice of the authors of their mismanage|ment and disgrace.

NUMBER LXVII. 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 claims next our attention.

There is hardly any part of the system, which could have been attended with greater difficulty in the arrangement of it than this; and there is perhaps none, which has been inveighed against with less candor, or criticised with less judgement.

Here the writers against the constitution seem to have taken pains to signalize their talent of misrepre|sentation. Calculating upon the aversion of the people to monarchy, they have endeavoured to inlist 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

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affinity they have not scrupled to draw resources even from the regions of fiction. The authorities of a magistrate, in few instances greater, and in some instances less than those of a governor of New-York, have been magnified into more than royal preroga|tives. He has been decorated with attributes superior in dignity and splendor to those of a king of Great-Britain. He has been shewn to us with the diadem sparkling on his brow, and the imperial purple flow|ing in his train. He has been seated on a throne surrounded with minions and mistresses; giving audi|ence to the envoys of foreign potentates, in all the supercilious pomp of majesty. The images of Asiatic despotism and voluptuousness have scarcely been wanting to crown the exaggerated scene. We have been almost taught to tremble at the terrific visages of murdering janissaries; and to blush at the unveiled mysteries of a future seraglio.

Attempts so extravagant as these to disfigure, or it might rather be said, to metamorphose the object, render it necessary to take an accurate view of its real nature and form; in order as well to ascertain its true aspect and genuine appearance, as to unmask the disingenuity and expose the fallacy of the coun|terfeit resemblances which have been so insidiously as well as industriously propagated.

In the execution of this task there is no man, who would not find it an arduous effort, either to behold with moderation or to treat with seriousness the devices not less weak than wicked, which have been con|trived 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 favor an indulgent con|struction of the conduct of political adversaries to give place to a voluntary and unreserved indignation. It is impossible not to bestow the imputation of deli|berate imposture and deception upon the gross pre|tence

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of a similitude between a king of Great-Britain and a magistrate of the character marked out for that of the president of the United States. It is still more impossible to withold that imputation from the rash and barefaced expedients which have been employed to give success to the attempted imposition.

In one instance, which I cite as a sample of the general spirit, the temerity has proceeded so far as to ascribe to the president of the United States a power, which by the instrument reported is expressly allotted to the executives of the individual states.— I mean the power of filling casual vacancies in the senate.

This bold experiment upon the discernment of his countrymen, has been hazarded by a writer who (whatever may be his real merit) has had no incon|siderable share in the applauses of his party ;—and who upon his 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.

to nominate, and by and with the advise and con|sent 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 other|wise provided for , and which shall be established by law .

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 .

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the president to fill vacancies in the senate has been deduced. A slight attention to the connection of the clauses and to the obvious meaning of the terms will satisfy us that the deduction is not even colourable.

whose appointments are not otherwise provided for in the constitution, and which shall be established by law ;

during the recess of the senate, by granting com|missions which should expire at the end of their next session.

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the senate of the United States shall be composed of two senators from each state, chosen by the legisla|ture thereof for six years;

if vacancies in that body should happen by resignation or otherwise, during the recess of the legislature of ANY STATE, the executive THEREOF may make temporary appointments until the next meeting of the legislature , which shall then fill such vacancies.

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clear and unambiguous terms, to the state executives, to fill the casual vacancies in the senate, by tempo|rary appointments; which not only invalidates the supposition that the clause before considered could have been intended to confer that power upon the presi|dent of the United States, but proves that this sup|position, destitute as it is even of the merit of plausi|bility, must have originated in an intention to deceive the people, too palpable to be obscured by sophist • • y, and 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 constitution submitted to the consideration of the people. Nor have I scrupled in so flagrant a case to allow myself in a severity of animadversion little con|genial with the general spirit of these papers. I hesitate not to submi • • it to the decision of any candid and honest adversary of the proposed government whether language can furnish epithets of too much asperity for so shameless and so prostitute an attempt to impose on the citizens of America.

NUMBER LXVIII. The View of the Constitution of the President continued, in Relation to the Mode of Ap|pointment.

THE mode of appointment of the chief magis|trate of the United States is almost the only part of the system, of any consequence, which has escaped without severe censure, or which has re|ceived the slightest mark of approbation from its oppo|nents.

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The most plausible of these, who has appeared in the print, has even deigned to admit, that the election of the president is pretty well guarded . I venture somewhat further, and hesitate not to affirm, that if the manner of it be not perfect, it is at least excellent. It unites in an eminent degree all the advantages, the union of which was to be desired.

It was desireable, that the sense of the people should operate in the choice of the person to whom so im|portant a trust was to be confided, This end will be answered by committing the right of making it, not to any pre-established body, but to men, chosen by the people for the special purpose, and at the parti|cular conjuncture,

It was equally desireable, that the immediate elec|tion should be made by men most capable of analiz|ing the qualities adapted to the station, and acting under circumstances favourable to deliberation and to a judicious combination of all the reasons and in|ducements 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 desireable, to afford as little opportunity as possible to tumult and disorder. This evil was not least to be dreaded in the election of a magistrate, who was to have so important an agency in the administration of the government, as the president of the United States. But the precautions which have been so happily concerted in the system under consideration, promise an effectual security against this mischief. The choice of several to form an in|termediate body of electors, will be much less apt to convulse the community, with any extroardinary 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

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assemble and vote in the state, in which they are chosen, this detached and divided situation will expose them much less to heats and ferments, which might be communicated from them to the people, than if they were all to be convened at one time, in one place.

Nothing was more to be desired, than that every practicable obstacle should be opposed to cabal, intrigue and corruption. These most deadly adver|saries of republican government might naturally have been expected to make their approaches from more than one quarter, but chiefly from the desire in foreign powers to gain an improper ascendant in our councils. How could they better gratify this, than by raising a creature of their own to the chief magi|stracy of the un • • on? But the convention have guarded against all danger of this sort with the most provident and judicious attention. They have not made the appointment of the president to depend on any pre-existing bodies of men who might be tampered with beforehand to prostitute their votes; but they have referred it in the first instance to an immediate act of the people of America, to be exerted in the choice of persons for the temporary and sole purpose of making the appointment. And they have excluded from elegibility to this trust, all those who from situation might be suspected of too great devotion to the pre|sident in office. No senator, representative, or other person holding a place of trust 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 byass. Their transient existence, and their detached situation, already taken notice of, afforded a satisfactory pros|pect of their continuing s • • , to the conclusion of it. The business of corruption, when it is to embrace so considerable a number of men, requires time, as well as means. Nor would it be found easy suddenly to

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embark them, dispersed, as they would be over thirteen states, in any combinations founded upon motives, which though they could not properly be denominated corrupt, might yet be of a nature to mislead them from their duty.

Another and no less important desideratum was, that the executive should be independent for his con|tinuance in office on all, but the people themselves. He might otherwise be tempted to sacrifice his duty to his complaisance for those whose favor was necessary to the duration of his official consequence. This advantage will also be secured, by making his re-election to depend on a special body of representa|tives, 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 the people of each state shall choose a number of per|sons as electors, equal to the number of senators and representatives of such state in the national govern|ment, 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 go|vernment; and the person who may happen to have a majority of the whole number of votes, will be the president. But as a majority of the votes might not always happen to centre on one man, and as it might be unsafe to permit less than a majority to be conclu|sive, it is provided, that in such a contingency, the house of representatives shall select out of the candi|dates, 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 president, will never fall to the lot of any man, who is not in an eminent degree endowed with the requisite qualifications. Talents for low in|trigue and the little arts of popularity may alone suffice to elevate a man to the first honours in a single state,

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but it will require other talents and a different kind of merit to establish him in the esteem and confidence of the whole union, or of so considerable a portion of it as would be necessary to make him a successful candidate for the distinguished office of president of the United States. It will not be too strong to say, that there will be a constant probability of seeing the station filled by characters pre-eminent for ability and virtue. And this will be thought no inconsiderable recommendation of the constitution, by those, who are able to estimate the share, which the executive in every government must necessarily have in its good or ill administration. Though we cannot acquiesce in the political heresy of the poet who says—

—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 extroardinary person, as vice-president, has been objected to as superfluous, if not mischievous. It has been alledged, that it would have been preferable to have authorised 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 secure at all times the possibility of a definitive resolution of the body, it is necessary that the president should have only a casting vote. And to take the senator of any state from his seat as senator, to place him in that of president of the senate, would be to exchange, in regard to the state from which he came, a constant for a contingent

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vote. The other consideration is, that as the vice-president may occasionally become a substistute for the president, in the supreme executive magistracy, all the reasons, which recommend the mode of elec|tion 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 lieute|nant-governor chosen by the people at large, who pre|sides in the senate, and is the constitutional substitute for the governor in casualties similar to those, which would authorise the vice-president to exercise the au|thorities and discharge the duties of the president.

NUMBER LXIX. The same View continued, with a Comparison between the President and the King of Great-Britain on the one Hand, and the Governor of New-York on the other.

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 par • • icu|lar there be a resemblance to • • he king of Great Bri|tain, 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

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United States shall think him worthy of their confi|dence. In these circumstances, there is a total dis|similitude between him and a king of Great-Britain; who is an hereditary monarch, possessing the crown as a patrimony descendible to his heirs forever; but there is a close analogy between him and a governor of New-York, who is elected for three years, and is re-eligible without limitation or intermission. If we consider how much less time would be requisite for establishing a dangerous influence in a single state, than for establishing a like influence throughout the United States, we must conclude that a duration of four years for the chief magistrate of the union, is a degree of permanency far less to be dreaded in that office, than a duration of three years for a correspon|dent 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 ordi|nary course of law. The person of the king of Great-Britain is sacred and inviolable: There is no con|stitutional tribunal to which he is amenable; no punishment to which he can be subjected without involving the crisis of a national revolution. In this delicate and important circumstance of personal responsibility, the president of confederated America would stand upon no better ground than a governor of New-York, and upon worse ground than the governors of Virginia 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 of both houses. The king of Great-Britain, on his part has an absolute negative upon the acts of the two houses of parliament. The disuse of that power for

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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 influ|ence to authority, or the art of gaining a majority in one or the other of the two houses, to the necessity of exerting a prerogative which could seldom be exerted without hazarding some degree of national agitation. The qualified negative of the president differs widely from this absolute negative of the British sovereign; and tallies exactly with the revisionary authority of the council of revision of this state, of which the governor is a constituent part. In this respect, the power of the president would exceed that of the gover|nor of New-York; because the former would possess singly what the latter shares with the chancellor and judges: But it would be precisely the same with that of the governor of Massachusetts, whose constitution, as to this article, seems to have been the original from which the convention have copied.

commander in chief of the army and navy of the United States, and of the militia of the seve • • al 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 impeach|ment ; to recommend to the consideration of con|gress such measures as he shall judge necessary and expedient; to convene on extraordinary occasions both houses of the legislature, or either of them, and in case of disagreement between them with respect to the time of adjournment , to adjourn them to such time as he shall think proper; to take care that the laws be faithfully executed; and to commission all officers of the United States.

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militia of the nation, as by legislative provision may be called into the actual service of the union. The king of Great-Britain and the governor of New-York, have at all times the entire command of all the militia within their several jurisdictons. In this article therefore the power of the president would be inferior to that of either the monarch or the governor. Second. The president is to be commander in chief of the army and navy of the United States. In his respect his authority would be nominally the same with that of the king of Great-Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first general and admiral of the confederacy; while that of the British king extends to the declaring of war, and to the raising and regu|lating of fleets and armies; all which by the consti|tution under consideration, would appertain to the legisla • • ure. The governor of New-York, on the other hand, is by the constitution of the state vested only with the command of its militia and navy. But the constitutions of several of the states, expressly de|clare their governors to be commanders in chief as well of the army as navy; and it may well be a ques|tion whether those of New-Hampshire and Massachu|setts, 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.

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to levying war upon the United States, and adhering to their enemies, giving them aid and comfort,

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of adjournment. The British monarch may prorogue or even dissolve the parliament. The governor of New-York may also prorogue the legislature of this state for a limited time; a power which in cer|tain situations may be employed to very important purposes.

The president is to have power with the advice and consent of the senate to make treaties; provided two thirds of the senators present concur. The king of Great-Britain is the sole and absolute representative of the nation in all foreign transactions. He can of his own accord make treaties of peace, commerce, alliance, and of every other description. It has been insinuated, that his authority in this respect is not conclusive, and that his conventions with foreign powers are subject to the revision, and stand in need of the ratification of parliament. But I believe this doc|trine 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 established fact, that the prerogative of making treaties exists in the crown in its utmost ple|nitude; 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 employ|ing itsel • • 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 parliamentary interposition pro|ceeds 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 disor|der. In this respect therefore, there is no compa|rison

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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 admitted that in this instance the power of the federal executive would exceed that of any state executive. But this arises naturally from the exclusive possession 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 authorised to receive ambassadors and other public ministers. This, though it has been a rich theme of declamation, is more a matter of dignity than of authority. It is a cir|cumstance, 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 con|vening 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 esta|blished by law, and whose appointments are not other|wise provided for by the constitution. The king of Great-Britain is emphatically and truly stiled the fountain of honor. He not only appoints to all offices, but can create offices. He can confer titles of nobi|lity at pleasure; and has the disposal of an immense number of church preferments. There is evidently a great inferiority, in the power of the president in this particular, to that of the British king; nor is it equal to that of the governor of New-York, if we are to interpret the meaning of the constitution of the

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state by the practice which has obtained under it. The power of appointment is with us lodged in a council composed of the governor and four members of the senate chosen by the assembly. The governor claims and has frequently exercised the right of nomi|nation, and is entitled to a cast • • ng vote in the appoint|ment. If he really has the right of nominating, his authority is in this respect equal to that of the presi|dent, and exceeds it in the article of the casting vote. In the national government, if the senate should be divided, no appointment could b • • made: In the government of New-York, if the council 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 appo • • nt|ment by the president and an entire branch o • • the nati • • nal legislature, with the privacy in the mode of app • • intment by the governor of New York, closet|ted in secret appartment with at most four, and fre|quently with only two persons; and if we at the same time consider how much more easy it must be to influence the small number of which a council of appointment consists, than the considerable number of which the national senate would consist, we cannot hesitate to pronounce, that the power of the chief magistrate of this state in the disposition of offices must in practice be greatly superior to that of the chief magistate of the union.

Hence it appears, that except as to the concur|rent authority of the president in the article of trea|ties, it would be difficult to determine whether that magistrate would in the aggregate possess more or less power than the governor of New-York. And it

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appears yet more unequivocally that there is no pretence for the parallel which has been attempted between him and the king of Great-Britain. But to render the contrast, in this respect, still more striking, it may be of use to throw the principal circumstances of dissimilitude into a closer groupe.

The president of the United States would be an officer elected by the people for four years. The king of Great-Britain is a • • erpetual and hereditary prince. The one would be amenable to personal punishment and disgrace: The person of the other is sacred and invio • • able. 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, poss • • sses 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 com|moners, can erect corporations with all the r • • ghts incident to corporate bodies. The one can prescribe no rules concerning the commerce or currency of the nation: The other is in several respects the arbiter of commerce, and in this capacity can establish mar|kets and fairs, can regulate weights and measures, can lay embargoes for a limited time, ean coin money, can authorise or prohibit the circulation of foreign coin. The one has no particle of spiritual jurisdic|tion: The other is the supreme head and governor of the national church!—What answer shall we give to those who would pursuade us that things so unlike resemble each other?—The same that ought to be

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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.

NUMBER LXXX. 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 advo|cates, that a vigorous executive is inconsistent with the genius of republican government. The enlightened well wishers to this species of government must at least hope that the supposition is destitute of foundation; since they can never admit its truth, without at the same time admitting the condemnation of their own principles. Energy in the executive is a leading character in the definition of good govern|ment. It is essential to the protection of the com|munity against foreign attacks: It is not less essential to the steady administration of the laws, to the pro|tection of property against those irregular and high-handed combinations, which sometimes interrupt the ordinary course of justice, to the security of liberty against the enterprises and assaults of ambition, of faction and of anarchy. Every man the least conver|sant in Roman story, knows how often that republic was obliged to take refuge in the absolute power of a single man, under the formidable title of dictator, as well against the intrigues of ambitious individuals, who aspired to the tyranny, and the seditions of whole classes of the community, whose conduct threatened the existence of all government, as against

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the invasions of external enemies, who menaced the conquest and destruction of Rome.

There can be no need however, to multiply argu|ments 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 exe|cution: And a government ill executed, whatever it may be in theory, must be in practice a bad government.

Taking it for granted, therefore, that all men of sense will agree in the necessity of an energetic exe|cutive, 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 characterise the plan which has been reported by the convention?

The ingredients which constitute energy in the executive, are, unity—duration—an adequate pro|vision 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 princi|ples, and for the justness of their views, have declared in favor of a single executive and a numerous legis|lative. 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 h • • nd; while they have with equal propriety considered the latter as best adapted to deliberation and wisdom, and best ca • • culated to conciliate the confidence of the people, and to secure their privileges and interests.

That unity is condusive to energy will not be disputed. Decision, act •• •• ity, secrecy and dispatch, will generally characterise the proceedings of one man,

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in a much more eminent degree than the proceed|ings 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 mag • • strates of equal dignity and authority; or by vesting it ostensi|bly in one man, subject in whole or in part to the controul and co-operation of others, in the capacity of counsellors, to him. Of the first the two consuls of Rome may serve as an example; of the last we shall find examples in the constitutions of several of the states. New-York, and New-Jersey, if I recollect right, are the only states, which have entrusted the executive authority wholly to single men . Both these methods of destroying the unity of the execu|tive have their partisans; but the votaries of an exe|cutive council are the most numerous. They are both liable, if not to equal, to similar objections, and may in most lights be examined in conjunction.

The experience of other nations will afford little instruction on this head. As far however as • • t teaches any thing, it teaches us not to be enamoured o • • plu|rality in the executive. We have seen that the Achaeans on an experiment of two prae • • ors, were in|duced to abolish one. The Roman history records many instances of mischiefs to the republic from the dissentions between the consuls, and between the m • • litary 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 dissen|tions between them were not more frequent or mo • • e fatal, is matter of astonishment; until we advert to the singular position in which the republ • • c was almost continually placed, and to the prudent

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policy pointed out by the circumstances of the state, and pursued by the consuls, of making a division of the government between them. The patricians en|gaged in a perpetual struggle with the plebeians for the preservation of their antient 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 pri|vileges of their order. In addition to this motive of union, after the arms of the republic had considerably expanded the bounds of its empire, it became an established custom with the consuls to divide the administration between themselves by lot; one of them remaining at Rome to govern the city and its environs; the other taking the command in the more distant provinces. This expedient must no doubt have had great influence in preventing those collisions and rivalships, which might otherwise have embroiled the republic.

But quitting the dim light of historical research, and attaching ourselves purely to the dictates of rea|son 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 cloathed 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 dis|sentions are apt to spring. Whenever these happen, they lessen the respectability, weaken the authority, and distract the plans and operations of those whom they divide. If they should unfortunately assail the supreme executive magistracy of a country, consisting of a plurality of persons, they might impede or frus|trate the most important measures of the government in the most critical emergencies of the state. And

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what is still worse they might split the community into violent and irreconciliable factions, adhering differently to the different individuals who composed the magistracy.

Men often oppose a thing merely because they have had no agency in planning it, or because it may have been planned by those whom they dislike But if they have been consulted and have happened to disapprove, opposition then becomes in their estimation an indis|pensible duty of self love. They seem to think them|selves bound in honor, and by all the motives of per|sonal infallibility to defeat the success of what has been resolved upon, contrary to their sentiments. Men of upright and benevolent tempers have too many op|portunities of remarking with horror, to what des|perate lengths this disposition is sometimes carried, and how often the great interests of society are sacri|ficed to the vanity, to the conceit and to the obstinacy of individvals, who have credit enough to make their passions and their caprices in er • • sting to mankind. Perhaps the question now before the public may in its consequences afford melancholy proofs of the effects of this despicable frailty, or rather detestable vice in the human character.

Upon the principles of a free government, incon|veniencies from the source just mentioned must ne|cessarily be submitted to in the formation of the le|gislature; but it is unnecessary and therefore unwise to introduce them into the constitution of the exe|cutive. It is here too that they may be most perni|cious. In the legislature, promptitude of decision is oftener an evil than a benefit. The differences of opinion, and the jarrings of parties in that depart|ment of the government, though they may sometimes obstruct salutary plans, yet often promote diliberation 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 favourable

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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 con|clusion of it. They constantly counteract those qua|lities in the executive, which are the most necessary ingredients in its composition, vigour and expedition, and this without any counterballancing good. In the conduct of war, in which the energy of the executive is the bulwark of the national security, every thing would be to be apprehended from its plural • • ty.

It must be confessed that these observations apply with principal weight to the first case supposed, that is to a plurality of magistrates of equal dignity and authority; a scheme the advocates for which are not likely to form a numerous sect: But they apply, though not with equal, yet with considerable weight, to the project of a council, whose concurrence is made constitutionally necessary to the operations of the oftensible 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 exe|cutive authority with a spirit of habitual feebleness and dilatoriness.

But one of the weightiest objections to a plurality in the executive, and which lies as much against the last as the first plan, is that it tends to conceal faults, and destroy responsibility. Responsibility is of two kinds, to censure and to punishment. The first is the most important of the two; especially in an elec|tive office. Men, in public trust, will much oftener act in such a manner as to render them unworthy of being any longer trusted, than in such a manner as to make them obnoxious to legal punishment. But the multiplication of the executive adds to the diffi|culty

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of detection in either case. It often becomes impossible, amidst mutual accusations, to determine on whom the blame or the punishment of a pernicious measure, or series of pernicious measures ought really to fall. It is shifted from one to another with so much dexterity, and under such plausible appearances, that the public opinion is left in suspense about the real author. The circumstances which may have led to any national miscarriage or misfortune are sometimes so complicated, that where there are a number of actors who may have had different degrees and kinds of agency, though we may clearly see upon the whole that there has been mismanagement, yet it may be impracticable to pronounce to whose account the evil which may have been incurred is truly chargeable.

I was overruled by my council. The council were so divided in their opinions, that it was im|possible to obtain any better resolution on the point.

In the single instance in which the governor of this state is coupled with a council, that is in the appoint|ment to offices, we have seen the mischiefs of it in the view now under consideration. Scandalous ap|pointments to important offices have been made. Some cases indeed have been so flagrant, that ALL PARTIES have agreed in the impropriety of the thing. When enquiry 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

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at a loss to determine by whose influence their in|terests have been committed to hands so unqualified, and so manifestly improper. In tenderness to indi|viduals, I forbear to descend to particulars.

It is evident from these considerations, that the plurality of the executive tends to deprive the people of the two greatest securities they can have for the faithful exercise of any delegated power. First. The restraints of public opinion, which lose their efficacy as well on account of the division of the censure atten|dant on bad measures among a number, as on ac|count of the uncertainty on whom it ought to fall; and secondly , the opportunity of discovering with faci|lity 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 admi|nistration, and his person sacred. Nothing therefore can be wiser in that kingdom than to annex to the king a constitutional council, who may be responsible to the nation for the advice they give. Without this there would be no responsibility whatever in the exe|cutive department, an idea inadmissible in a free go|vernment. But even there the king is not bound by the resolutions of his council, though they are answer|able for the advice they give. He is the absolute master of his own conduct in the exercise of his office; and may observe or disregard the counsel given to him at his s • • le discretion.

But in a republic, where every magistrate ought to be personally responsible 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 of Great-Britain, it furnishes a substitute for the pro|hibited responsibility of the chief magistrate; which

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serves in some degree as a hostage to the national justice for his good behaviour. In the American re|public it would serve to destroy, or would greatly diminish the intended and necessary responsibility of the chief magistrate himself.

deep, solid and ingenious,

the executive power is more easily confined when it is ONE :

A little consid • • ration 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 in|fluence of either of them separately. When power therefore is placed in the hands of so small a number of men, as to admit of their interests and views being easily combined in a common enterprize, 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

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of his being alone, will be more narrowly watched and more readily suspected, and who cannot unite so great a ma • • s of influence as when he is associated with others. The decemvirs of Rome, whose name de|notes their number , were more to be dreaded in their usurpation than any ONE of them would have been. No person would think of proposing an executive much more numerous than that body; from six to a dozen have been suggested for the number of the council. The extreme of these numbers is not too great for an easy combination; and from such a combination America would have more to fear, than from the ambition of any single individual. A council to a magistrate, who is himself responsible for what he does, are generally nothing better than a clog upon his good intentions; are often the instruments and accomplices of his bad, and are almost always a cloak to his faults.

I forbear to dwell upon the subject of expence▪ though it be evident that if the council should be numerous enough to answer the principal end, aimed at by the institution, the salaries o • • the members, who must b • • drawn from the •• •• homes to re • • de at the sea • • o • • government, would form an i • • em in the cata|logue of public expenditures, too serious to be in|curred for an object of equivocal utility.

I will only add, that prior to the appearance of the constitution, I rarely met with an in • • elligent man from any of the states, who did not admit as the result of experience▪ that the u •• •• ity of the executive of this state was one of the best of the distinguishing features of our constitution.

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Number lxxi. 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 executive magistrate in the employment of his constitutional powers; and to the stability of the system of administration which may have been adopted under his auspices. With regard to the first, it must be evident, that the longer the duration in office, the greater will be the proba|bility of obtaining so important an advantage. It is a general principle of human nature, that a man will be interested in whatever he possesses, in proportion to the firmness or precariousness of the tenure, by which he holds it; will be less attached to what he holds by a momentary or uncertain title, than to what he en|joys by a durable or certain title; and of course will be willing to risk more for the sake of the one, than for the sake of the other. This remark is not less applicable to a political privilege, or honor, or • • ust, than to any article of ordinary property. The in|ference from it is, that a man acting in the capacity of chief magistrate, under a consciousness, that in a very short time he must lay down his office, will be apt to feel himself too little interested in it, to hazard any material censure or perplexity, from the inde|pendent exertion of his powers, or from encountering the ill-humors, however transient, which may happen to prevail either in a considerable part of the society itself, or even in a predominant faction in the legis|lative body. If the case should only be, that he might lay it down, unless continued by a new choice; and if he should be desirous of being continued, his

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wishes conspiring with his fears would tend still more powerfully to corrupt his integrity, or debase his for|titude. In either ca • • e feebleness and irresolution must be the characteristics of the station.

There are some, who would be inclined to regard the servi • • e pliancy of the executive to a prevailing current, either in the community, or in the legislature as its best recommendation. But such men entertain very crude notions, as well of the purposes for which government was instituted, as of the true means by which the public happiness may be promoted. The republican principle demands, that the deliberate sense of the community should govern the conduct of those to whom they intrust the management of their affairs; but it does not require an unqualified com|plaisance to ev • • ry sudden breese of passion, or to every transient impulse which the people may ••• ••• eive 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 am|bitious, the avariciou • • , the desperate; by the arti|fices of men, who possess their confidence m • • re than they deserve it, and of those who seek to possess, ra|ther than to deserve it. When occasions present them|selves in which the interests of the people are at va|ria • • c with their inclinations, it is the duty of the persons whom they have appointed to be the guar|dians of those interests, to withstand the temporary delusion, in order to give them time and opportunity for 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

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mistakes, and has procured lasting monuments of their gratitude to the men, who had had courage and magnanimity enough to serve them at the peril of their displeasure.

But however inclined we might be to insist upon an unbounded complaisance in the executive to the in|clinations of the people, we can with no propriety contend for a like complaisance to the humors of the legislature. The atter may sometimes stand in op|position to the former; and at other times the people may be intirely neutral. In either supposition, it is certainly desireable 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 various branches of power, teaches likewise that this partition ought to be so contrived as to rend • • r the one independent of the other. To what purpose separate the executive or the judiciary from the legsliative, if both the exe|cutive and the judiciary are so constituted as to be at the absolute devotion of the legislative? Such a sepa|ration must be merely nominal, and incapable of pro|ducing the ends for which it was established. It is one thing to be subordinate to the laws, and another to be dependent on the leg • • slative body. The first comports with, the last violates, the fundamental principles of good government; and whatever may be the forms of the constitution, unites all power in the same hands. The tendency of the legislative authority to absorb every other, has been fully dis|played and illustrated by examples in some preceding numbers. In governments purely republican, this tendency is almost irresistable. The representatives of the people, in a popular assembly, seem sometimes to fancy that they are the pe • • ple themselves, and betray strong sympton of impatience and disgust at the least sign of opposition from any other quarter, as if the exercise of its rights by either the execu • • iv • • or

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judiciary were a breach of their privilege and an out|rage to their dignity. They often appear disposed to exert an imperious controul over the other depart|ments, 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 go|vernment 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 legislative, unless the one were possessed of the power of appointing or displacing the other? One answer to this inquiry may be drawn from the principle already remarked, that is, from the slender interest a man is apt to take in a short lived advantage, and the little inducement it affords him to expose himself on account of it to any consi|derable inconvenience or hazard. Another answer, perhaps more obvious, though not more conclusive, will result from the consideration of the influence of the legislative body over the people, which might be employed to prevent the re-election of a man, who by an upright resistance to any sinister project of that body, should have made himself obnoxious to its resentment.

It may be asked also whether a duration of four years would answer the end proposed, and if it would not, whether a less period which would at least be recommended by greater security against ambitious designs, would not for that reason be preferable to a longer period, which was at the same time too short for the purpose of inspiring the desired firmness and independence of the magistrate?

It cannot be affirmed, that a duration of four years or any other limited duration would completely an|swer the end proposed; but it would contribute towards it in a degree which would have a material influence upon the spirit and character of the govern|ment. Between the commencement and termination of such a period there would always be a considerable

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interval, in which the prospect of 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 reason|ably promise himself, that there would be time enough before it arrived, to make the community sensible of the propriety of the measures he might incline to pursue. Though it be probable, that as he approached the moment when the public were by a new election to signify their sense of his conduct, his confidence, and with it, his firmness would decline; yet both the one and the other would derive support from the opportunities, which his previous continuance in the station had afforded him of establishing himself in the esteem and good will of his constituents. He might then hazard with safety, in proportion to the proofs he had given of his wisdom and integrity, and to the title he had acquired to the respect and attachment of his fellow citizens. As on the one hand, a duration of four years will contribute to the firmness of the executive in a sufficient degree to render it a very va|luable 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 compatible with the principles of a free government; while they raised themselves to the rank and consequence of a co-equal branch of the legislature; if they have been able in one instance to abolish both the royalty and the aris|tocracy, and to overturn all the antient establishments as well in the church as state; if they have been able on a recent occasion to make the monarch tremble at the prospect of an innovation attempted by them;

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what would be to be feared from an elective magi|strate of four years duration, with the confined autho|rities of a president of the United States? What but that he might be unequal to the task which the con|stitution assigns him?—I shall only add that if his duration be such as to leave a doubt of his firmness that doubt is inconsistent with a jealousy of his encroachments.

NUMBER LXXII. 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 department. The actual conduct of foreign negotiations, the preparatory plans of finance, the application and disbursement of the public monies, in conformity to the general appropriations of the legislature, the arrangement of the army and navy, the direction of the operations of war; these and other matters of a like nature constitute what seems to be most properly understood by the administration of government. The persons therefore, to whose im|mediate management these different matters are com|mitted, ought to be considered as the assistants or deputies of the chief magistrate; and, on this ac|count, they ought to derive their offices from his ap|pointment, at least from his nomination, and ought to be subject to his superintendence. This view of the subject will at once suggest to us the intimate con|nection

between the duration of the executive magis|trate in office, and the stability of the system of ad|ministration. To reverse and undo what has been done by a predecessor is very often considered by a successor, as the best proof he can give of his own capacity and desert; and, in addition to this pro|pensity, where the alteration has been the result of public choice, the person substituted is warranted in supposing, that the dismission of his predecessor has proceeded from a dislike to his measures, and that the less he resembles him the more he will recom|mend himself to the favour of his constituents. These considerations, and the influence of personal confi|dences and attachments, would be likely to induce every new president to promote a change of men to fill the subordinate stations; and these causes together could not fail to occasion a disgraceful and ruinous mutability in the administration of the government.

With a positive duration of considerable extent, I connect the circumstance of re-elegibility. The first is necessary to give the officer himself the incli|nation and the resolution to act his part well, and to the community time and leisure to observe the ten|dency of his measures, and thence to form an expe|rimental estimate of their merits. The last is ne|cessary to enable the people, when they see reason to approve of his conduct, to continue him in the station, in order to prolong the utility of his talents and vir|tues, and to secure to the government, the advantage of permanency in a wise system of administration.

Nothing appears more plausible at first sight, nor more ill founded upon close inspection, than a scheme which in relation to the present point has had some respectable advocates — I mean that of continuing the chief magistrate in office for a certain time, and then excluding him from it, either for a limited period or for ever after. This exclusion whether temporary or perpetual would have nearly the same effects▪ and

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these effects would be for the most part rather perni|cious than salutary.

One ill effect of the exclusion would be a dimi|nution 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 con|nected, must be relinquished at a determinate period, then when they were permitted to entertain a hope of obtaining by • • eriting a continuance of them. This position will not be disputed, so long as it is admit|ted that the desire of reward is one of the strongest incentives of human conduct, or that the best secu|rity for the fidelity of mankind is to make their in|terest coincide with their duty. Even the love of fame, the ruling passion of the noblest minds, which would prompt a man to plan and undertake extensive and arduous enterprises for the public benefit, requiring considerable time to mature and perfect them, if he could flatter himself with the prospect of being allowed to finish what he had begun, would on the contrary deter him from the undertaking, when he foresaw that he must quit the scene, before he could accomplish the work, and must commit that, together with his own reputation, to hands which might be unequal or unfriendly to the task. The most to be expected from the generality of men, in such a situ|ation, is the negative merit of not doing harm in|stead of the positive merit of doing good.

Another ill effect of the exclusion would be the temptation to sordid views, to peculation, and in some instances, to usurpation. An avaricious man, who might happen to fill the office, looking forward to a time when he must at all events yield up the advantages he enjoyed, would feel a propensity, not easy to be resisted by such a man, to make the best use of his opportunities, while they lasted; and might not scruple to have recourse to the most corrupt expedients to make the harvest as abundant

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as it was transitory; though the same man 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 ava|ricious. And if he could expect to prolong his honors, by his good conduct, he might hesitate to sacrifice his appetite for them to his appetite for gain. But with the prospect before him of approaching and 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 country's honors, looking forward to the time at which he must descend from the exalted eminence forever, 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 prolongation of his power, at every personal hazard, than if he had the probability of answering the same end by doing his duty.

Would it promote the peace of the community, or the stability of the government, to have half a dozen men who had had credit enough to raise themselves 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 ex|ercise of his office. That experience is the parent of wisdom is an adage, the truth of which is recognized by the wisest as well as the simplest of mankind. What more desirable or more essential than this qua|lity in the governors of nations? Where more desira|ble or more essential than in the first magistrate of a

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nation? Can it be wise to put this desirable and essential quality under the ban of the constitution; and to declare that the moment it is acquired, its possessor shall be compelled to abandon the station in which it was acquired, and to which it is adapted? This nevertheless is the precise import of all those regulations which exclude men from serving their country, by the choice of their fellow citizens, after they have, by a course of service fitted them|selves for doing it with a greater degree of utility.

A fourth ill effect of the exclusion would be the banishing men from stations, in which in certain emergencies of the state then 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 ser|vices of particular men, in particular situations, per|haps it would not be too strong to say, to the preser|vation of its p • • litical existence. How unwise there|fore 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 exigences 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 ex|perience, and would tend to unhinge and let afloat the already settled train of the administration.

A fifth ill effect of the exclusion would be, that it would operate as a constitutional interdiction of sta|bility in the administration. By necessitating a change of men, in the first office in the nation, it would ne|cessitate a mutability of measures. It is not gene|rally to be expected, that men will vary; and mea|sures 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

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even the option of changing; nor need we desire to prohibit the people from continuing their confi|dence, where they think it may be safely placed, and where by constancy on their part, they may ob|viate the fatal inconveniences of fluctuating councils and a variable policy.

These are some of the disadvantages, which would flow from the principle of exclusion. They apply most forcibly to the scheme of a perpetual exclusion; but when we consider that even a partial 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 counter-ballance these disadvantages? They are represented to be—1st. Greater independence in the magistrate: 2d. Greater security to the people. Unless the ex|clusion be perpetual, there will be no pretence to infer the first advantage. But even in that case, may he have no object beyond his present station to which he may sacrifice his independence? May he have no connections, no friends, for whom he may sacrifice it? May he not be less willing, by a firm conduct, to make personal enemies, when 〈◊〉 〈◊〉 acts under the im|pression, that a time is fast approaching, on the arrival of which he not only MAY, but MUST be exposed to their resentments, upon an equal, perhaps upon an inferior footing? It is not an easy point to determine whether his independence would be most promoted or impaired by such an arrangement.

As to the second supposed advantage, there is still greater reason to entertain doubts concerning it, 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

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pre-eminence had acquired the force of habit. And if he had been fortunate or adroit enough to conciliate the good will of the people, he might induce them to consider as a very odious and unjustifiable restraint upon themselves, a provision which was calculated to debar them of the right of giving a fresh proof of their attachment to a favorite. There may be con|ceived circumstances in which this disgust of the people, seconding the thwarted ambition of such a favorite, might occasion greater danger to liberty, than could ever reasonably be dreaded from the possi|bility of a perpetuation in office, by the voluntary suffrages of the community, exercising a constitu|tional privilege.

There is an excess of refinement in the idea of dis|abling the people to continue in office men, who had entitled themselves, in their opinion, to approbation and confidence; the advantages of which are at best speculative and equivoc • • l, and are overbalanced by disadvantages far more certain and decisive.

NUMBER LXXIII. 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 authority is an adequate provision for its support. It is evident that without proper attention to this article, the separation of the executive from the legislative department would be merely nominal and nugatory. The legislature, with a discretionary power over the salary and emo|luments of the chief magistrate, could render him as obsequious to their will, as they might think pro|per to make him. They might in most cases either

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reduce him by famine, or tempt him by largesses, to surrender at discretion his judgment to their in|clinations. These expressions taken in all the latitude of the terms would no doubt convey more than is intended. There are men who could neither be distressed nor won into a sacrifice of their duty; but this stern virtue is the growth of few soils: And in the main it will be found, that a power over a man's support is a power over his will. If it were necessary to confirm so plain a truth by facts, examples would not be wanting, even in this country, of the intimi|dation or seduction of the executive by the terrors, or allurements, of the pecuniary arrangements of the legislative body.

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 emo|lument from the United States or any of them.

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The last of the requisites to energy which have been enumerated are competent powers. Let us pro|ceed to consider those which are proposed to be vested in the president of the United States.

The first thing that offers itself to our observation, is the qualified negative of the president upon the acts or resolutions of the two houses of the legislature; or in other words his power of returning all bills with objections; to have the effect of preventing their becoming laws, unless they should afterwards be ratified by two thirds of each of the component mem|bers 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 furnishing each with constitutional arms for its own defence, has been inferred and proved. From these clear and indubitable principles results the propriety of a ne|gative, either absolute or qualified, in the executive, upon the acts of the legislative branches. Without the one or the other, the former would be absolutely unable to defend himself against the depredations of the latter. He might gradually be stripped of his authorities by successive resolutions, or annihilated by a single vote. And in the one mode or the other, the legislative and executive powers might speedily come to be blended in the same hands. If even no propensity had ever discovered itself in the legislative body, to invade the rights of the executive, the rules of just reasoning and theoretic propriety would of themselves teach us, that the one ought not to be left 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 to the executive, but it furnishes an additional security against the enaction

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of improper laws. It establishes a salutary check upon the legislative body calculated to guard the community against the effects of faction, precipi|tancy, or of any impulse unfriendly to the public good, which may happen to influence a majority of that body.

The propriety of a negative, has upon some occa|sions been combated 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 presumption should be entertained, it would be improper to give the executive magistrate any species of controul over the legislative body.

But this observation, when examined, will appear rather specious than solid. The propriety of the thing does not turn upon the supposition of superior wisdom or virtue in the executive; but upon the supposition that the legislative will not be infallible: That the love of power may sometimes betray it into a dispo|sition to encroach upon the rights of the other mem|bers of the government; that a spirit of faction may sometimes pervert its deliberations; that impressions of the moment may sometimes hurry it into measures which itself, on maturer reflection, would condemn. The primary inducement to conferring the power in question upon the executive, is to enable him to defend himself; the secondary one is to encrease the chances in favour of the community against the passing of bad laws, through haste, inadvertence, or design. 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 misteps which proceed from the contagion of some common passion or interest. It is far less pro|bable, 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.

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It may perhaps be said, that the power of prevent|ing 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 institu|tion calculated to restrain the excess of law-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 favorable to greater stability in the system of legislation. The injury which may possibly be done by defeating a few good laws will be amply compensated by the ad|vantage 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 ne|gative would generally be employed with great cau|tion, and that there would oftener be room for a charge of timidity than of rashness, in the exercise of it. A king of Great Britain, with all his train of sove|reign 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 mea|sure disagreeable to him, in its progress to the throne, to avoid being reduced to the dilemma of permitting it to take effect, or of risking the displeasure of the nation, by an opposition to the sense of the legisla|tive body. Nor is it probable that he would ulti|mately 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

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period has elapsed since the negative of the crown has been exercised.

If a magistrate, so powerful and so well fortified as a British monarch, would have scruples about the exercise of the power under consideration • • how much greater caution may be reasonably expected in a pre|sident of the United States, cloathed for the short period of four years with the executive authority of a government wholly and purely republican?

It is evident that there would be greater danger of his not using his power when necessary, than of his using it too often, or too much. An argument indeed against its expediency has been drawn from this very source. It has been represented on this account as a power odious in appearance, useless in practice. But it will not follow, that because it might be rarely exercised, it would never be exercised. In the case for which it is chiefly designed, that of an imme|diate attack upon the constitutional rights of the exe|cutive, 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 admoni|tions of duty and responsibility. In the former sup|position, his fortitude would be stimulated by his immediate interest in the power of his office; in the latter by the probability of the sanction of his constituents; who though they would naturally incline to the legislative body in a doubtful case, would hardly suffer their partiality to delude them in a very plain case. I speak now with an eye to a magistrate possessing only a common share of firmness. There are men, who under any circumstances will have the courage to do their duty at every hazard.

But the convention have pursued a mean in this business; which will both facilitate the exercise of the power vested in this respect in the executive magistrate, and make its efficacy to depend on the sense of a considerable part of the legislative body.

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Instead of an absolute negative, it is proposed to give the executive the qualified negative already de|scribed. 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 hous • • concurring in the suffici|ency of his objections. He would be encouraged by the reflection, that if his opposition should prevail, it would embark in it a very respectable proportion of the legislative body, whose influence would be united with his in supporting the propriety of his conduct, in the public opinion. A direct and cate|gorical negative has something in the appearance of it more harsh, and more apt to irri • • ate, than the mere suggestion of argumentative objections to be approved or disapproved, by those to whom they are addressed. In proportion as it would be less apt to offend, it would be more apt to be exercised; and for this very reason it may in practice be found more effectual. It is to be hoped that it will not often happen, that improper views will govern so large a proportion as two-thirds of both branches of the legislature at the same time; and this too in defiance 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 resolu|tions and conduct of a bare majority. A power of this nature, in the executive, w • • ll 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 controul, they will often be restrained by the bare apprehension of opposition, from doing what they would with eagerness rush into, if no such exter|nal impediments were to be feared.

This qualified negative, as has been elsewhere remarked, is in this state vested in a council, consist|ing

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of the governor, with the chancellor and judges of the supreme court, or any two of them. It has been freely employed upon a variety of occasions, and frequently with success. And its utility has become so apparent, that persons who in compiling the con|stitution were violent opposers of it have from expe|rience become its declared admirers.

I have in another place remarked, that the conven|tion in the formation of this part of their plan, had departed from the model of the constitution of this state, in favor of that of Massachusetts;—two strong reasons may be imagined for this preference. One is that the judges, who are to be the interpreters of the law, might receive an improper bias from having given a previous opinion in their revisionary capa|city. The other is, that by being often associated with the executive they might be induced to embark too far in the political views of that magistrate, and thus a dangerous combination might by degrees be cemented between the executive and judiciary de|partments. It is impossible to keep the judges too distinct from every other avocation than that of expounding the laws. It is peculiarly dangerous to place them in a situation to be either corrupted or influenced by the executive.

NUMBER LXXIV. The same View continued, in Relation to the Command of the national Forces, and the Power of pardoning.

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

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United States.

The president may require the opinion in writ|ing of the principal officer in each of the executive departments upon any subject relating to the duties of their respective offices.

to grant reprieves and pardons fo • • offences against the United States except in cases of impeachment .

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scrupulousness and caution: The dread of being accu|sed of weakness or connivance would beget equal circumspection, though of a different kind. On the other hand, as men generally derive confidence from their numbers, they might often encourage each other in an act of obduracy, and might be less sensible to the apprehension of suspicion or censure for an inju|dicious or affected clemency. On these accounts, one man appears to be a more eligible dispenser of the mercy of the government than a body of men.

The expediency of vesting the power of pardoning in the president has▪ if I mistake not, been only contested in relation to the crime of treason. This, it has been urged, ought to have depended upon the assent of one or both of the branches of the legislative body. I shall not deny that there are strong reasons to be assigned for requiring in this particular the concurrence of that body, or of a part of it. As treason is a crime levelled at the immediate being of the society, when the laws have once ascertained the guilt of the offender, there seems a fitness in refering 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 ob|jections 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 mo|tives 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 em|brace a large proportion of the community; as lately happened in Massachusetts. In every such case, we might expect to see the representation of the people tainted with the same spirit which had given birth to the offence. And when parties were pretty equally matched, the secret sympathy of the friends and

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favorers of the condemned, availing itself of the good nature and weakness of others, might fre|quently 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 cle|mency. But the principal argument for reposing the power of pardoning in this case in the chief magistrate is this; in seasons of insurrection or rebel|lion, there are often critical moments, when a well-timed offer of pardon to the insurgents or rebels may restore the tranquility of the commonwealth; and which, if suffered to pass unimproved, it may never be possible afterwards to recall. The dilatory pro|cess of convening the legislature, or one of its branches, for the purpose of obtaining its sanction to the measure, would frequently be the occasion of letting slip the golden opportunity. The loss of a week, a day, an hour, may sometimes be fatal. If it should be observed that a discretionary power with a view to such contingencies might be occasionally confered upon the president; it may be answered in the first place, that it is questionable whether, in a limited constitution, that power could be delega|ted 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 timi|dity or of weakness, and would have a tendency to embolden guilt.

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Number lxxv. the same view continued in relation to the power of making treaties..

by and with the advice and consent of the senate, to make treaties provided two-thirds of the senators present concur.

With regard to the intermixture of powers, I shall rely upon the explanations already given, in other places, of the true sense of the rule, upon which that objection is founded; and shall take it for granted, as an inference from them, that the union of the executive with the senate, in the article of treaties, is no infringment of that rule. I venture to add that

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the particular nature of the power of making treaties indicates a peculiar propriety in that union. Though several writers on the subject of government place that power in the class of executive authorities, yet this is evidently an arbitrary disposition: For if we attend carefully to its operation, it will be found to partake more of the legislative than of the executive cha|racter, though it does not seem strictly to fall within the definition of either of them. The essence of the legislative authority is to • • nact laws, or in other words to prescribe rules for the regulation of the society. While the execution of the laws and the employment of the common strength, either for this purpose or for the common defence, seem to comprise all the functions of the executive magistrate. The power of making treaties is plainly neither the one nor the other. It relates neither to the execution of the subsisting laws, nor to the enaction of new ones, and still less to an exertion of the common strength. Its objects are CONTRACTS with foreign nations, which have the force of law, but derive it from the obligations of good faith. They are not rules pre|scribed by the sovereign to the subject, but agree|ments between sovereign and sovereign. The power in question seems therefore to form a distinct depart|ment, and to belong properly neither to the legisla|tive nor to the executive. The qualities elsewhere detailed, as indispensable in the management of foreign negociations, point out the executive as the most fit agent in those transactions; while the vast importance of the trust, and the operation of treaties as laws, plead strongly for the participation of the whole or a part 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 im|proper to entrust that power to an elective magistrate

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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 dan|ger of being 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 mode|rate or slender fortune, and looking forward to a period not very remote, when he may probably be obliged to return to the station from which he was taken, might sometimes be under temptations to sacrifice his duty to his interest, which it would require superlative virtue to withstand. An avari|cious man might be tempted to betray the interests of the state to the acquisition of wealth. An ambitious man might make his own aggrandizement, by the aid of a foreign power, the price of his treachery to his constituents. The history of human conduct does not warrant that exalted opinion of human vir|tue which would make it wise in a nation to commit interests of so delicate and momentous a kind as those which concern its intercourse with the rest of the world to the sole disposal of a magistrate, created and circumstanced, as would be a president of the United States.

To have entrusted the power of making treaties to the senate alone, would have been to relinquish the benefits of the constitutional agency of the president, in the conduct of foreign negotiations. It is true, that the senate would in that case have the option of employing him in this capacity; but they would also have the option of letting it alone; and pique or cabal might induce the latter rather than the former. Besides this, the ministerial servant of the senate could not be expected to enjoy the confidence and respect of foreign powers in the same degree with the constitutional representative of the nation; and of course would not be able to act with an equal degree

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of weight or efficacy. While the union would from this cause lose a considerable advantage in the ma|nagement of its external concerns, the people would lose the additional security, which would result from the co-operation of the executive. Though it would be imprudent to confide in him solely so important a trust; yet it cannot be doubted, that his participation in it 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 presi|dent and senate would afford a greater prospect of security, than the separate possession of it by either of them. And whoever has maturely weighed the circumstances, which must concur in the appointment of a president will be satisfied, that the office will always bid fair to be filled by men of such characters as to render their concurrence in the formation of treaties peculiarly desirable, as well on the score of wisdom as on that of integrity.

The remarks made in a former number, which has been alluded to in another part of this paper, will apply with conclusive force against the admission of the house of representatives to a share in the forma|tion of treaties. The fluctuating, and taking its future increase into the account, the multitudinous composition of that body, forbid us to expect in it those qualities which are essential to the proper exe|cution of such a trust. Accurate and comprehensive knowledge of foreign politics; a steady and syste|matic adherence to the same views; a nice and uni|form sensibility to national character, decision, secrecy and dispatch; are incompatible with the genius of a body so variable and so numerous. The very com|plication of the business by introducing a necessity of the concurrence of so many different bodies, would of itself afford a solid objection. The greater frequency of the calls upon the house of representatives, and the greater length of time which it would often be neces|sary to keep them together when convened, to obtain

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their sanction in the progressive stages of a treaty, would be source of so great inconvenience and expence 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 shewn under the second head of our enqui|ries that all provisions which require more than the majority of any body to its resolutions have a direct tendency to embarrass the operations of the govern|ment 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 of the whole number of members had been required, it would in many cases from the non-atten|dence of a part amount in practice to a necessity of unanimity. And the history of every political esta|blishment in which this principle has prevailed is a history of impotence, perplexity and disorder. Proofs of this position might be adduced from the examples of the Roman tribuneship, the Polish diet and the states general of the Netherlands; did not an example at home render foreign precedents unnecessary.

To require a fixed proportion of the whole body would not in all probability contribute to the advan|tages of a numerous agency, better than merely to require a proportion of the attending members. The former by increasing the difficulty of resolutions dis|agreeable to the minority diminishes the motives to punctual attendance. The latter by making the capacity of the body to depend on a proportion which may be varied by the absence or presence of a single member, has the contrary effect. And as, by pro|moting

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punctuality, it tends to keep the body com|plete, there is great likelihood that its resolutions would generally be dictated by as great a number in this case as in the other; while there would be much fewer occasions of delay. It ought not to be for|gotten 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, whe • • e the members are to vote individu|ally, would rarely fall short in number of the active voices in the existing congress. When in addition to these considerations we take into view the co-ope|ration of the president, we shall not hesitate to infer that the people of America would have greater secu|rity against an improper use of the power of making treaties, under the new constitution, than they now enjoy under the confederation. And when we pro|ceed still one step further, and look forward to the probable augmentation of the senate, by the erection of new states we shall not only perceive ample ground of confidence in the sufficiency of the numbers, to whose agency that power will be entrusted; but we shall probably be led to conclude that a body more numerous than the senate would be likely to become, would be very little fit for the proper discharge of the trust.

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Number lxxvi. the same view continued, in relation to the appointment of the officers of the govern|ment..

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 otherwise provided for in the constitution. But the congress may by law vest the appointment of such inferior officers as they think proper in the president alone, or in the courts of law, or in the heads of departments. The president shall have power to fill up all vacancies which may happen during the recess of the senate , by granting commis|sions which shall expire at the end of their next session.

the true test of a good government is its aptitude and tendency to produce a good administration.

It will be agreed on all hands, that the power of appointment in ordinary cases can be properly mo|dified only in one of three ways. It ought either to be vested in a single man—or in a select assembly of a moderate number—or in a single man with the

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concurrence of such an assembly. The exercise of it by the people at large, will be readily admitted to be impracticable; as, waving every other consideration it would leave them little time to do any thing else. When therefore mention is made in the subsequent reasonings of an assembly or body of men, what is said must be understood to relate to a select body or assembly of the description already given. The people collectively from their number and from their dispersed situation cannot be regulated in their move|ments by that systematic spirit of cabal and intrigue, which will be urged as the chief objections to reposing the power in question in a body of men.

Those who have themselves reflected upon the subject, or who have attended to the observations made in other parts of these papers, in relation to the appointment of the president, will, I presume, agree to the position that there would always be great pro|bability of having the place supplied by a man of abilities, at least respectable. Premising this, I pro|ceed to lay it down as a rule, that one man of dis|cernment is better fitted to analise and estimate the peculiar qualities adapted to particular offices, than a body of men of equal, or perhaps even of superior discernment.

The sole and undivided responsibility of one man will naturally beget a livelier sense of duty and a more exact regard to reputation. He will on this account feel himself under stronger obligations, and more interested to investigate with care the qualities requisite to the stations to be filled, and to prefer with impartiality the persons who may have the fairest pretensions to them. He will have fewer personal attachments to gratify than a body of men, who may each be supposed to have an equal number, and will be so much the less liable to be misled by the sentiments of friendship and of affection. There is nothing so apt to agitate the passions of mankind as personal considerations, whether they relate to

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Give us the man we wish for this office, and you shall have the one you wish for that.

The truth of the principles here advanced seems to have been felt by the most intelligent of those who have found fault with the provision made in this re • • pect by the convention. They contend that the president ought solely to have been authorised to make the appointments under the federal govern|ment. But it is easy to shew that every advantage to be expected from such an arrangement would in substance be derived from the power of nomination , which is proposed to be conferred upon him; while several disadvantages which might attend the abso|lute power of appointment in the hands of that officer would be avoided. In the act of nomination, his judgment alone would be exercised; and as it would be his sole duty to point out the man, who with the approbation of the senate should fill an office, his

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responsibility would be as complete as if he were to make the final appointment. There can in this view be no difference between nominating and appointing. The same motives which would influ|ence a proper discharge of his duty in one case, would exist in the other. And as no man could be appointed, but upon his previous nomination, every man who might be appointed 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 ulti|mately appointed must be the object of his preference though perhaps not in the first degree. It is also not very probable that his nomination would often be overruled. The senate could not be tempted by the preference they might feel to another to reject the one proposed; because they could not assure themselves that the person they might wish would be brought forward by a second or by any subsequent nomination. They could not even be certain that a future nomina|tion would present a candidate in any degree more acceptable to them: And as their dissent might cast a kind of stigma upon the individual rejected; and might have the appearance of a reflection upon the judgement of the chief magistrate; it is not likely that their sanction would often be refused, where there were not special and strong reasons for the refusal.

To what purpose then require the co-operation of the senate? I answer that the necessity of their concur|rence would have a powerful, though in general a silent operation. It would be an excellent check upon a spirit of favoritism in the president, and would tend greatly to preventing the appointment of unfit cha|racters from state prejudice, from family connection, from personal attachment, or from a view to popu|larity. And, in addition to this, it would be an effi|cacious source of stability in the administration.

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It will readily be comprehended, that a man, who had himself the sole disposition of offices, would be governed much more by his private inclinations and interests, than when he was bound to submit the pro|priety of his choice to the discussion and determina|tion of a different and independent body; and that body an entire branch of the legislature. The pos|sibility of rejection would be a strong motive to care in proposing. The danger to his own reputation, and, in the case of an elective magistrate, to his poli|tical existence, from betraying a spirit of favoritism, or an unbecoming pursuit of popularity, to the obser|vation 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 for|ward for the most distinguished or lucrative stations, candidates who had no other merit than that of com|ing from the same state to which he particularly be|longed, or of being in some way or other personally allied to him, or of possessing the necessary insigni|ficance and pliancy to render them the obsequious instruments of his pleasure.

To this reasoning, it has been objected, that the president, by the influence of the power of nomina|tion, may secure the complaisance of the senate to his views. The supposition of universal venality in human nature, is little less an error in political rea|soning than the supposition 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 confidence. And experience justifies the theory: It has been found to exist in the most corrupt periods of the most cor|rupt 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 be|long, as well as in this; and it cannot be doubted that the charge is to a considerable extent well

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no senator or representative shall, during the time for which he was elected , be appointed to any civil office under the United States, which shall have been created, or the emo|luments whereof shall have been encreased 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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Number lxxvii. 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 magi|strate therefore would not occasion so violent or so general a revolution in the officers of the government as might be expected if he were the sole disposer of offices. Where a man in any station had given satis|factory evidence of his fitness for it, a new president would be restrained from attempting a change, in favor of a person more agreeable to him, by the apprehension that 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 appro|bation or disapprobation of that body, which from the greater permanency of its own composition, will in all probability be less subject to inconstancy, than any other member of the government.

To this union of the senate with the president, in the article of appointments, it has in some cases been objected, that it would serve to give the pre|sident an undue influence over the senate; and in others, that it would have an opposite tendency; a strong proof that neither suggestion is true.

To state the first in its proper form is to refute it. It amounts to this; the president would have an

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improper influence over the senate; because the senate would have the power of restraining him. This is an absurdity in terms. It cannot admit of a doubt that the entire power of appointment would enable him much more effectually to establish a dangerous empire over that body, than a mere power of nomi|nation subject to their control.

Let us take a view of the converse of the propo|sition, "The senate would influence the executive." As I have had occasion to remark in several other instances, the indistinctness of the objection forbids a precise answer. In what manner is this influence to be exerted? In relation to what objects? The power of influencing a person, in the sense in which it is here used, must imply a power of conferring a benefit upon him. How could the senate confer a benefit upon the presi • • ent by the manner of employ|ing their right of negative upon his nominations? If it 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 of honors and emoluments, is more likely to attract than to be attracted by the POWER which can merely obstruct their course. If by influencing the president be meant restraining him, this is precisely what must have been intended. And it has been shewn 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 uncontroled 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

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which is established by the constitution of this state • • 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 judge|ment of an entire branch of the legislative, the cir|cumstances attending an appointment, from the mode of conducting it, would naturally become matters of notoriety; and the public could be at no loss to deter|mine what part had been performed by the different actors. The blame of a bad nomination would fall upon the president singly and absolutely. The censure of rejecting a good one would lie entirely at the door of the senate; aggravated by the consideration of their having counteracted the good intentions of the executive. If an ill appointment should be made the executive for nominating and the senate for approv|ing would participate though in different degrees in the opprobrium and disgrace.

The reverse of all this characterises the manner of appointment in this state. The council of appoint|ment consists of from three to five persons, of whom the governor is always one. This small body, shut up in a private apartment, impenetrable to the public eye, proceed to the execution of the trust committed to them. It is known that the governor claims the right of nomination, upon the strength of some ambi|guous expressions in the constitution; but it is not known to what extent, or in what manner he exer|cises 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 too often be managed without much difficulty: That if

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some of the members of a particular council should happen to be of an uncomplying character, it is frequently not impossible to get rid of their oppo|sition, 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 advancement of persons, whose chief merit is their implicit devotion to his will, and to the support of a despicable and dangerous system of personal influence, are questions which unfortu|nately for the community can only be the subjects of speculation and conjecture.

Every mere council of appointment, however con|stituted, will be a conclave, in which cabal and in|trigue will have their full scope. Their number, without an unwarrantable increase of expence, cannot be large enough to preclude a facility of combina|tion. And as each member will have his friends and connections to provide for, the desire of mutual gra|tification will beget a scandalous bartering of votes and bargaining for places. The private attachments of one man might easily be satisfied; but to satisfy the private attachments of a dozen, or of twenty men, would occasion a monopoly of all the principal em|ployments of the government, in a few families, and would lead more directly to an aristocracy or an oli|garchy, than any measure that could be contrived. If to avoid an accumulation of offices, there was to be a frequent change in the persons who were to com|pose the council, this would involve the mischiefs of a mutable administration in their full extent. Such a council would also be more liable to executive in|fluence than the senate, because they would be fewer

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in number, and would act less immediately under the public inspection. Such a council in fine as a sub|stitute for the plan of the convention, would be pro|ductive of an increase of expence, a multiplication of the evils which spring from favoritism and intrigue in the distribution of the public honors, 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 amend|ment in the proposed constitution.

I could not with propriety conclude my observa|tions on the subject of appointments, without taking notice of a scheme, for which there has appeared some, though but a few advocates; I mean that of uniting the house of representatives in the power of making them. I shall however do little more than mention it, as I cannot imagine that it is likely to gain the countenance of any considerable part of the community. A body so fluctuating, and at the same time so numerous, can never be deemed proper for the exercise of that power. Its unfitness will appear manifest to all, when it is recollected that in half a century it may consist of three or four hundred per|sons. All the advantages of the stability, both of the executive and of the senate, would be defeated by this union; and infinite delays and embarrassments would be occasioned. The example of most of the states in their local constitutions, encourages us to reprobate the idea.

The only remaining powers of the executive, are comprehended in giving information to congress of the state of the union; in recommending to their consideration such measures as he shall judge expe|dient; 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;

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and in commissioning all the officers of the United States.

Except some cavils about the power of convening either house of the legislature and that of receiving ambassadors, no objection has been made to this cl • • ss of authorities; nor could they possibly admit of a ••• ••• It required indeed an insatiable avidity for censure to invent exceptions to the parts which have been excepted to. In regard to the power of convening either house of the legislature, I shall barely remark, that in respect to the senate at least, we can readily discover a good reason for it. As this body has a concurrent power with the executive in the article of treaties, it might often be necessary to call it together with a view to this object, when it would be unne|cessary and improper to convene the house of repre|sentatives. As to the reception of ambassadors, what I have said in a former paper will furnish a sufficient answer.

We have now compleated a survey of the structure and powers of the executive department, which, I have endeavoured to shew, combines, as far as repub|lican principles will admit, all the requisites to energy. The remaining enquiry is—does it also combine the requisites to safety in the republican sense—a due dependence on the people—a due respon|sibility? The answer to this question has been anti|cipated in the investigation of its other characteristics, and is satisfactorily deducible from these circum|stances, the election of the president once in four years by persons immediately chosen by the people for that purpose; and his being at all times liable to impeach|ment, trial, dismission from office, incapacity to serve in any other; and to the forfeiture of life and estate by subsequent prosecution in the common course of law. But these precautions, great as they are, are not the only ones, which the plan of the convention has provided in favor of the public security. In the only instances in which the abuse of the executive

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authority was materially to be feared, the chief ma|gistrate 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 reason|able people desire?

NUMBER LXXVIII. 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 proposed go|vernment.

In unfolding the defects of the existing confedera|tion, the utility and necessity of a federal judicature have been clearly pointed out. It is the less neces|sary 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 observa|tions shall be confined.

The manner of constituting 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 judi|ciary authority between different courts, and their relations to each other.

First. As to the mode of appointing the judges; This is the same with that of appointing the officers of the union in general, and has been so fully 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

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duration in office; the provisions for their support; and the precautions for their responsibility.

According to the plan of the convention, all the judges who may be appointed by the United States are to hold their offices during good behaviour , which is conformable to the most approved of the state con|stitutions; and among the rest, to that of this state. Its propriety having been drawn into question by the adversaries of that plan, is no light symptom of the rage for objection which disorders their imaginations and judgments. The standard of good behaviour for the continuance in office of the judicial magistracy is certainly one of the most valuable of the modern im|provements in the practice of government. In a monarchy it is an excellent barrier to the despotism of the prince: In a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body And it is the best expedient which can be devised in any government, to secure a steady, upright and impartial administration of the laws.

Whoever attentively considers the different depart|ments of power must perceive, that in a government in which they are separated from each other, the ju|diciary, from the nature of its functions, will always be the least dangerous to the political rights of the constitution; because it will be least in a capacity to annoy or injure them. The executive not only dis|penses the honors, but holds the sword of the commu|nity. The legislative not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary on the contrary has no influence over either the sword or the purse, no direction either of the strength or of the wealth of the society, and can take no active reso|lution whatever. It may truly be said to have nei|ther FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

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there is no liberty, if the power of judging be not sepa|rated from the legislative and executive powers .

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 autho|rity; such for instance as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limi|tations of this kind can be preserved in practice no

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other way than through the medium of the courts of justice; whose duty it must be to declare all acts con|trary to the manifest tenor of the constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

Some perplexity respecting the right of the courts to pronounce legislative acts void, because contrary to the constitution, has arisen from an imagination that the doctrine would imply a superiority of the ju|diciary to the legislative power. It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void. As this doctrine is of great im|portance in all the American constitutions, a brief discussion of the grounds on which it rests cannot be unacceptable.

There is no position which depends on clearer prin|ciples, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exerc • • sed, is void. No legislative act therefore contrary to the constitution can be valid. To deny this would be to affirm that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the peop • • e themselves; that men acting by virtue of powers may do not only what their powers do not authorise, but what they forbid.

If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the constitution. It is not otherwise to be supposed that the constitution could intend to enable the repre|sentatives of the people to substitute their will to that of their constituents. It is far more rational to sup|pose that the courts were designed to be an interme|diate body between the people and the legislature, in

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order, among other things, to keep the latter within the limits assigned to their authority. The interpre|tation of the laws is the proper and peculiar province of the courts. A constitution is in fact, and must be, regarded by the judges as a fundamental law. It therefore belongs to them to ascertain its meaning as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcileable variance between the two, that which has the superior obligation and validity ought of course to be prefered; or in other words, the con|stitution ought to be prefered to the statute, the inten|tion of the people to the intention of their agents.

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is supe|rior to both; and that where the will of the legis|lature declared in its statutes, stands in opposition to that of the people declared in the constitution, the judges ought to be governed by the latter, rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

This exercise of judicial discretion in determining between two contradictory laws, is exemplified in a familiar instance. It not uncommonly happens, that there are two statutes existing at one time, clashing in whole or in part with each other, and neither of them containing any repealing clause or expression. In such a case, it is the province of the courts to liquidate and fix their meaning and operation: So far as they can by any fair construction be reconciled to each other; reason and law conspire to dictate that this should be done: Where this is impracticable, it becomes a matter of necessity to give effect to one, in exclusion of the other. The rule which has obtained in the courts for determining their relative validity is that the last in order of time shall be pre|ferred to the first. But this is mere rule of construc|tion,

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not derived from any positive law, but from the nature and reason of the thing. It is a rule not enjoined upon the courts by legislative provision, but adopted by themselves, as consonant to truth and propriety, for the direction of their conduct as inter|preters of the law. They thought it reasonable, that between the interfering acts of an equal authority, that which was the last indication of its will, should have the preference.

But in regard to the interfering acts of a superior and subordinate authority, of an original and deri|vative power, the nature and reason of the thing indicate the converse of that rule as proper to be followed. They teach us that the prior act of a superior ought to be prefered to the subsequent act of an inferior and subordinate authority; and that, accordingly, whenever a particular statute con|travenes the constitution, it will be the duty of the judicial tribunals to adhere to the latter, and dis|regard the former.

It can be of no weight to say, that the courts on the pretence of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature. This might as well happen in the case of two contradictory statutes; or it might as well happen in every adjudication upon any single statute. The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body. The observation, if it proved any thing, would prove that there ought to be no judges distinct from that body.

If then the courts of justice are to be considered as the bulwarks of a limited constitution against legis|lative 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

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must be essential to the faithful performance of so arduous a duty.

This independence of the judges is equally requisite to guard the constitution and the rights of individuals from the effects of those ill humours which the arts of designing men, or the influence of parti|cular 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 pro|posed constitution will never concur with its enemies in questioning that fundamental principle of re|publican government, which admits the right of the people to alter or abolish the established constitution whenever they find it inconsistent with their happiness; yet it is not to be inferred from this principle, that the representatives of the people, whenever a mo|mentary inclination happens to lay hold of a majority of their constituents incompatible with the provisions in the existing constitution, would on that account be justifiable in a violation of those provisions; or that the courts would be under a greater obligation to connive at infractions in this shape, than when they had proceeded wholly from the cabals of the representative body. Until the people have by some solemn and authoritative act annul • • ed or changed the established form, it is binding upon themselves col|lectively, as well as individually; and no presump|tion, or even knowledge of their sentiments, can warrant their representatives in a departure from it, prior to such an act. But it is easy to see that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the constitution, where legislative invasions of it

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had been instigated by the major voice of the community.

But it is not with a view to infractions of the constitution only that the independence of the judges may be an essential safeguard against the effects of occasional ill humours in the society. These some|times extend no farther than to the injury of the private rights of particular classes of citizens, by unjust and partial laws. Here also the firmness of the judicial magistracy is of vast importance in miti|gating the severity, and confining the operation of such laws. It not only serves to moderate the imme|diate mischiefs of those which may have been passed, but it operates as a check upon the legislative body in passing them; who, perceiving that obstacles to the success of an iniquitous intention are to be ex|pected from the scruples of the courts, are in a manner compelled by the very motives of the injustice they meditate, to qualify their attempts. This is a circumstance calculated to have more influence upon the character of our governments, than but few may be aware of. The benefits of the integrity and moderation of the judiciary have already been felt in more states than one; and though they may have displeased those whose sinister expectations they may have disappointed, they must have commanded the esteem and applause of all the virtuous and disinter|ested. Considerate men of every description ought to prize whatever will tend to beget or fortify that temper in the courts; as no man can be sure that he may not be to-morrow the victim of a spirit of injustice, by which he may be a gainer to-day. And every man must now feel that the inevitable ten|dency of such a spirit is to sap the foundations of public and private confidence, and to introduce in its stead, universal distrust and distress.

That inflexible and uniform adherence to the rights of the constitution and of individuals, which we perceive to be indispensable in the courts of

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justice, can certainly not be expected from judges who hold their offices by a temporary commission. Perio|dical appointments, however regulated, or by whom|soever made, would in some way or other be fatal to their necessary independence. If the power of making them was committed either to the executive or legis|lative, there would be danger of an improper com|plaisance to the branch which possessed it; if to both, there would be an unwillingness to hazard the dis|pleasure of either; if to the people, or to persons chosen by them for the special purpose, there would be too great a disposition to consult popularity, to justify a reliance that nothing would be consulted but the constitution and the laws.

There is yet a further and a weighty reason for the permanency of the judicial offices; which is deducible from the nature of the qualifications they require. It has been frequently remarked with great pro|priety, that a voluminous code of laws is one of the inconveniencies necessarily connected with the advan|tages of a free government. To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them; and it will readily be conceived from the variety of con|troversies which grow out of the folly and wickedness of mankind, that the records of those precedents must unavoidably swell to a very considerable bulk, and must demand long and laborious study to acquire a competent knowledge of them. Hence it is that there can be but few men in the society, who will have sufficient skill in the laws to qualify them for the stations of judges. And making the proper deduc|tions for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge. These considerations apprise us, that the govern|ment can have no great option between fit cha|racters;

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and that a temporary duration in office, which would naturally discourage such characters from quiting a lucrative line of practice to accept a seat on the bench, would have a tendency to throw the administration of justice into hands less able, and less well qualified to conduct it with utility and dignity. In the present circumstances of this country, and in those in which it is likely to be for a long time to come, the disadvantages on this score would be greater than they may at first fight appear; but it must be confessed that they are far inferior to those which present themselves under the other aspects of the subject.

Upon the whole there can be no room to doubt that the convention acted wisely in copying from the models of those constitutions which have esta|blished good behaviour as the tenure of their judicial offices in point of duration; and that so far from being blameable on this account, their plan would have been inexcuseably 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.

NUMBER LXXIX. A further View of the Judicial Department, in Relation to the Provisions for the Sup|port and Responsibility of the Judges.

NEXT to permanency in office, nothing can contribute more to the independence of the judges than a fixed provision for their support. The remark made in relation to the pre|sident, is equally applicable here. In the general course of human nature, a power over a man's sub|sistence

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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 eli|gible provision that could have been devised. It will readily be understood, that the fluctuations in the value of money, and in the state of society, rendered a fixed rate of compensation in the constitution inad|missible. What might be extravagant 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 of the power of that body to change the condition of the individual for the worse. A man may then be sure of the ground upon which he stands, and can never be deterred from his duty by the apprehension of being placed in a less eligible situation. The clause which has been quoted combines both advantages. The salaries of judicial offices may from time to time be altered, as occasion

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shall require, yet so as never to lessen the allowance with which any particular judge comes into office, in respect to him. It will be observed that a difference has been made by the convention between the com|pensation of the president and of the judges. That of the former can neither be increased nor diminished. That of the latter can only not be diminished. This probably arose from the difference in the duration of the respective offices. As the president is to be elected for no more than four years, it can rarely happen that an adequate salary, fixed at the com|mencement of that period, will not continue to be such to the end of it. But with regard to the judges, who, if they behave properly, will be secured in their places for life, it may well happen, especially in the early stages of the government, that a stipend, which would be very sufficient at their first appointment, would become too small in the progress of their service.

This provision for the support of the judges bears every mark of prudence and efficacy; and it may be safely affirmed that, together with the permanent tenure of their offices, it affords a better prospect of their independence than is discoverable in the consti|tutions of any of the states, in regard to their own judges.

The precautions for their responsibility are com|prised in the article respecting impeachments. They are liable to be impeached for mal-conduct by the house of representatives, and tried by the senate, and if convicted, may be dismissed from office and disqua|lified for holding any other. This is the only pro|vision on the point, which is consistent with the neces|sary independence of the judicial character, and is the only one which we find in our own constitution in respect to our own judges.

The want of a provision for removing the judges on account of inability, has been a subject of com|plaint. But all considerate men will be sensible that

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such a provision would either not be practised upon, or would be more liable to abuse than calculated to answer any good purpose. The mensuration of the faculties of the mind has, I believe, no place in the catalogue of known arts. An attempt to fix the boundary between the regions of ability and inability, would much oftener give scope to personal and party 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 of New-York, to avoid investi|gations that must forever be vague and dangerous, has taken a particular age as the criterion of in|ability. No man can be a judge beyond sixty. I believe there are few at present, who do not dis|approve of this provision. There is no station in relation to which it is less proper than to that of a judge. The deliberating and comparing faculties generally preserve their strength much beyond that period, in men who survive it; and when in addi|tion to this circumstance, we consider how few there are who outlive the season of intellectual vigour, and how improbable it is that any considerable propor|tion of the bench, whether more or less numerous, should be in such a situation at the same time, we shall be ready to conclude that limitations of this sort have little to recommend them. In a republic, where fortunes are not affluent, and pensions not expedient, the dismission of men from stations in which they have served their country long and use|fully, 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 bet|ter apology to humanity, than is to be found in the imaginary danger of a superannuated bench.

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Number lxxx. a further view of the judicial department, in relation to the extent of its powers..

TO judge with accuracy of the proper extent of the federal judicature, it will be necessary to consider in the first place what are its proper objects.

It seems scarcely to admit of controversy that the judiciary authority of the union ought to extend to these several descriptions of causes. 1st. To all those which arise out of the laws of the United States, passed in pursuance of their just and constitutional powers of legislation; 2d. to all those which concern the execution of the provisions expressly contained in the articles of union; 3d. to all those in which the United States are a party; 4th. to all those which involve the PEACE of the CONFEDERACY, whether they relate to the intercourse between the United States and foreign nations, or to that between the States themselves; 5th. to all those which originate on the high seas, and are of admiralty or maritime jurisdic|tion; 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 conside|tation that there ought always to be a constitutional method of giving efficacy to constitutional provisions. What for instance would avail restrictions on the au|thority of the state legislatures, without some consti|tutional mode of enforcing the observance of them? The states, by the plan of the convention are prohi|bited from doing a variety of things; some of which are incompatible with the interests of the union, and others with the principles of good government. The imposition of duties on imported articles, and the emission of paper money, are specimens of each kind. No man of sense will believe that such prohibitions

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would be scrupulously regarded, without some effec|tual 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-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 pre|ferable 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 co-extensive with its legislative, may be ranked among the number. The mere necessity of unifor|mity in the interpretation of the national laws, de|cides the question. Thirteen independent courts of final jurisdiction over the same causes, arising upon the same laws, is a hydra in government, from which nothing but contradiction and confusion can proceed.

Still less need be said in regard to the third point. Controversies between the nation and its members or citizens, can only be properly referred to the national tribunals. Any other plan would be contrary to reason, to precedent, and to decorum.

The fourth point rests on this plain proposition, that the peace of the WHOLE ought not to be left at the disposal of a PART. The union will undoubtedly be answerable to foreign powers for the conduct of its members. And the responsibility for an injury ought ever to be accompanied with the faculty of preventing it. As the denial or perversion of justice by the sentences of courts, as well as in any other manner, is with reason classed among the just causes of war, it will follow that the federal judiciary ought to have cognizance of all causes in which the citizens of other countries are concerned. This is not less essential to the preservation of the public faith, than to the

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security of the public tranquility. A distinction may perhaps be imagined between cases arising upon treaties and the laws of nations, and those which may stand merely on the footing of the municipal law. The former kind may be supposed proper for the federal jurisdiction, the latter for that of the states. But it is at least problematical whether an unjust sentence against a foreigner, where the subject of controversy was wholly relative to the lex loci , would not, if unredressed, be an aggression upon his sove|reign, as well as one which violated the stipulations in a treaty or the general laws of nations. And a still greater objection to the distinction would result from the immense difficulty, if not impossibility, of a practical discrimination between the cases of one complection and those of the other. So great a pro|portion of the cases in which foreigners are parties involve national questions, that it is by far most safe and most expedient to refer all those in which they are concerned to the national tribunals.

The power of determining causes between two states, between one state and the citizens of another, and between the citizens of different states, is perhaps not less essential to the peace of the union than that which has been just examined. History gives us a horrid picture of the dissentions and private wars which distracted and desolated Germany prior to the institution of the IMPERIAL CHAMBER by Maxi|milian, towards the close of the fifteenth century; and informs us at the same time of the vast influence of that institution in appeasing the disorders and establishing the tranquillity of the empire. This was a court invested with authority to decide finally all differences between the members of the Ger|manic body.

A method of terminating territorial disputes be|tween 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 to|gether.

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But there are many other sources, besides interfering claims of boundary, from which bicker|ings and animosities may spring up among the mem|bers of the union. To some of these we have been witnesses in the course of our past experience. It will readily be conjectured that I allude to the frau|dulent laws which have been passed in too many of the states. And though the proposed constitution establishes particular guards against the repetition of those instances which have heretofore made their ap|pearance, yet it is warrantable to apprehend that the spirit which produced them will assume new shapes that could not be foreseen, nor specifically provided against. Whatever practices may have a tendency to disturb the harmony between the states, are proper objects of federal superintendence and control.

the citizens of each state shall be entitled to all the privileges and immunities of citizens of the several states.

The fifth point will demand little animadversion. The most bigotted idolizers of state authority have not thus far shewn a disposition to deny the national

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judiciary the cognizance of maritime causes. These so generally depend on the laws of nations, and so commonly affect the rights of foreigners, that they fall within the consideration • • which are relative to the public peace. The most important part of them are by the present confederation submitted to federal jurisdiction.

The reasonableness of the agency of the national courts in cases in which the state tribunals cannot be supposed to be impartial, speaks for itself. No man ought certainly to be a judge in his own cause, or in any cause in respect to which he has the least in|terest or bias. This principle has no inconsiderable weight in designating the federal courts as the proper tribunals for the determination of controversies between different states and their citizens. And it ought to have the same operation in regard to some cases between the citizens of the same state. Claims to land under grants of different states, founded upon adverse pretensions of boundary, are of this descrip|tion. 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 decisions in favour of the grants of the state to which they belonged. And even where this had not been done, it would be natural that the judges, as men, should feel a strong predilection to the claims of their own government.

all cases in law and equity arising under the constitution, the laws of the United States, and treaties made, or which shall be made under their authority; to all cases affecting ambassadors, other public ministers and consuls; to all cases of admiralty and maritime

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jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more states, between a state and citizens of another state, between citizens of different states, between citizens of the same state claiming lands under grants of different states, and between a state or the citizens thereof, and foreign states, citizens and subjects.

arising under the laws of the United States.

It has also been asked, what need of the word "equity"? What equitable causes can grow out of the constitution and laws of the United States? There is hardly a subject of litigation between indi|viduals. which may not involve those ingredients of fraud, accident, trust or hardship , which would render the matter an object of equitable, rather than of legal jurisdiction, as the distinction is known and esta|blished in several of the states. It is the peculiar province, for instance, of a court of equity to relieve

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against what are called hard bargains: These are contracts, in which, though there may have been no direct fraud or deceit, sufficient to invalidate them in a court of law; yet there may have been some undue and unconscionable advantage taken of the necessities or misfortunes of one of the parties, which a court of equity would not tolerate. In such cases, where foreigners were concerned on either side, it would be impossible for the federal judi|catories to do justice without an equitable, as well as a legal jurisdiction. Agreements to convey lands claimed under the grants of different states, may afford another example of the necessity of an equi|table jurisdiction in the federal courts. This rea|soning may not be so palpable in those states where the formal and technical distinction between LAW and EQUITY is not maintained as in this state, where it is exemplified by every day's practice.

The judiciary authority of the union is to extend—

Second. To treaties made, or which shall be made under the authority of the United States, and to all cases affecting ambassadors, other public ministers and consuls. These belong to the fourth class of the enumerated cases, as they have an evident connec|tion with the preservation of the national peace.

Third. To cases of admiralty and maritime juris|diction. These form altogether 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 of another state, between citizens of different states. These belong to the fourth of those classes, and partake in some measure of the nature of the last.

Sixth. To cases between the citizens of the same state, claiming lands under grants of different states .

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These fall within the last class, and are the only in|stance in which the proposed constitution directly con|templates 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 shewn 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 prin|ciples which ought to have governed the structure of that department, and which were necessary to the perfection of the system. If some partial inconve|niencies should appear to be connected with the in|corporation of any of them into the plan, it ought to be recollected that the national legislature will have ample authority to make such exceptions and to prescribe such regulations as will be calculated to obviate or remove these inconveniencies. The pos|sibility of particular mischiefs can never be viewed by a well-informed mind as a solid objection to a general principle, which is calculated to avoid ge|neral mischi ••• ••• , and to obtain general advantages.

NUMBER LXXXI. A further View of the Judicial Department, in Relation to the Distribution of its Authority.

LET us now return to the partition of the judi|ciary authority between different courts, and their relations to each other.

The judicial power of the United States is (by the plan of the convention) to be vested in one supreme court, and in such inferior courts as the

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congress may from time to time ordain and establish.

That there ought to be one court of supreme and final jurisdiction is a proposition which has not been, and is not likely to be contested. The reasons for it have been assigned in another place, and are too obvious to need repetition. The only question that seems to have been raised 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 im|proper intermixture of powers, advocate, by impli|cation at least, the propriety of vesting the ultimate decision of all causes in the whole, or in a part of the legislative body.

The authority of the proposed supreme court of the United States, which is to be a separate and inde|pendent 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 de|cisions 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 legis|lature; and this part of the British government has been imitated in the state constitutions in general. The parliament of Great-Britain, and the legislatures of the several states, can at any time rectify by law, the exceptionable decisions of their respective courts. But the errors and usurpations of the supreme court of the United

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States will be uncontrolable and remediless.

In the first place, there is not a syllable in the plan under consideration, which directly empowers the national courts to construe the laws according to the spirit of the constitution, or which gives them any greater latitude in this respect, than may be claimed by the courts of every state. I admit however, that the constitution ought to be the standard of construc|tion for the laws, and that wherever there is an evident opposition, the laws ought to give place to the constitution. But this doctrine is not deducible from any circumstance peculiar to the plan of the convention; but from the general theory of a limited constitution; and as far as it is true, is equally ap|plicable to most, if not to all the state governments. There can be no objection therefore, on this account, to the federal judicature, which will not lie against the local judicatures in general, and which will not serve to condemn every constitution that attempts to set bounds to the legislative discretion.

But perhaps the force of the objection may be thought to consist in the particular organization of the proposed supreme court; in its being composed of a distinct body of magistrates, instead of being one of the branches of the legislature, as in the govern|ment 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 of these papers, that it is not violated by vesting the ultimate power of judging in a part of the legislative body. But though this be not an absolute violation of that excel|lent rule; yet it verges so nearly upon it, as on this

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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 mode|rate them in the application. The same spirit, which had operated in making them, would be too apt to operate in interpreting them: Still less could it be expected, that men who had infringed the constitu|tion, in the character of legislators, would be disposed to repair the breach, in the character of judges. Nor is this all:—Every reason, which recommends the tenure of good behaviour for judicial offices, militates against placing the judiciary power in the last resort in a body composed of men chosen for a limited pe|riod. There is an absurdity in referring the deter|mination of causes in the first instance to judges of permanent standing, and in the last to those of a temporary and mutable constitution. And there is a still greater absurdity in subjecting the decisions of men selected for their knowledge of the laws, acquired by long and laborious study, to the revision and control of men, who for want of the same advantage cannot but be deficient in that knowledge. The members of the legislature will rarely be chosen with a view to those qualifications which fit men for the stations of judges; and as on this account there will be great reason to apprehend all the ill consequences of defective information; so on account of the natural propensity of such bodies to party divisions, there will be no less reason to fear, that the pestilential breath of faction may poison the fountains of justice. The habit of being continually marshalled on opposite sides, will be too apt to stifle the voice both of law and of equity.

These considerations teach us to applaud the wisdom of those states, who have committed the judicial power in the last resort, not to a part of the legis|lature, but to distinct and independent bodies of men. Contrary to the supposition of those, who have represented the plan of the convention in this

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respect as novel and unprecedented, it is but a copy of the constitutions of New-Hampshire, Massachusetts, Pennsylvania, Delaware, Maryland, Virginia, North-Carolina, South-Carolina and Georgia; and the pre|ference which has been given to these models is highly to be commended.

It is not true, in the second place, that the parlia|ment of Great Britain, or the legislatures of the par|ticular 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, authorises the revisal of a judicial sentence, by a legislative act. Nor is there any thing in the proposed constitution more than in either of them, by which it is forbidden. In the former as well as in the latter, the impropriety of the thing, on the general principles of law and reason, is the sole obstacle. A legislature without exceeding its province cannot reverse a determination once made, in a particular case; though it may prescribe a new rule for future cases. This is the principle, and it applies in all its consequences, exactly in the same manner and extent, to the state governments, as to the national government, now under consideration. Not the least difference can be pointed out in any view of the subject.

It may in the last place be observed that the sup|posed danger of judiciary encroachments on the legis|lative authority, which has been upon many occa|sions reiterated, is in reality a phantom. Parti|cular 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 in|convenience, 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 judi|cial power; from the objects to which it relates; from the manner in which it is exercised; from its com|parative

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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 legis|lative body, and of determining upon them in the other, would give to that body upon the members of the judicial department. This is alone a complete security. There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resent|ment of the body entrusted with it, while this body was possessed of the means of punishing their pre|sumption by degrading them from their stations. While this ought to remove all apprehensions on the subject, it affords at the same time a cogent argu|ment 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 organiza|tion 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 evi|dently calculated to obviate the necessity of having recourse to the supreme court, in every case of federal cognizance. It is intended to enable the national government to institute or authorise in each state or district of the United States, a tribunal competent to the determination of matters of national jurisdic|tion within its limits.

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to con|stitute tribunals,

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I am not sure but that it will be found highly ex|pedient and useful to divide the United States into four or five, or half a dozen districts; and to in|stitute a federal court in each district, in lieu of one in every state. The judges of these courts, with the aid of the state judges, may hold circuits for the trial of causes in the several parts of the respective districts. Justice through them may be administered with ease and dispatch; and appeals may be safely circum|scribed within a very narrow compass. This plan appears to me at present the most eligible of any that could be adopted, and in order to it, it is necessary that the power of constituting inferior courts should exist in the full extent in which it is to be found in the proposed constitution.

These reasons seem sufficient to satisfy a candid mind, that the want of such a power would have been a great defect in the plan. Let us now examine in what manner the judicial authority is to be distri|buted between the supreme and the inferior courts of the union.

in cases affecting ambassadors, other public ministers and consuls, and those in which A STATE shall be a party.

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Though it may rather be a digression from the immediate subject of this paper, I shall take occasion to mention here, a supposition which has excited some alarm upon very mistaken grounds: It has been suggested that an assignment of the public securities of one state to the citizens of another, would enable them to prosecute that state in the federal courts for the amount of those securities. A suggestion which the following considerations prove to be without foundation.

It is inherent in the nature of sovereignty, not to be amenable to the suit of an individual without its consent . This is the general sense and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every state in the union. Unless therefore, there is a surrender of this immunity in the plan of the convention, it will remain with the states, and the danger intimated must be merely ideal. The circumstances which are necessary to produce an alienation of state sovereignty, were discussed in con|sidering the article of taxation, and need not be repeated here. A recurrence to the principles there established will satisfy us, that there is no colour to pretend that the state governments, would by the adoption of that plan, be divested of the privilege of paying their own debts in their own way, free from every constraint but that which flows from the obli|gations of good faith. The contracts between a na|tion and individuals are only binding on the con|science of the sovereign, and have no pretensions to a compulsive force. They confer no right of action independent of the sovereign will. To what purpose would it be to authorise 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 to the federal courts, by mere implication, and in de|struction of a pre-existing right of the state govern|ments,

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a power which would involve such a con|sequence, would be altogether forced and un|warrantable.

with such exceptions , and under such regulations as the congress shall make.

The propriety of this appellate jurisdiction has been scarcely called in question in regard to matters of law; but the clamours have been loud against it as applied to matters of fact. Some well intentioned men in this state, deriving their notions from the language and forms which obtain in our courts, have been induced to consider it as an implied super|sedure of the trial by jury, in favour of the civil law mode of trial, which prevails in our courts of admi|rality, 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 of the civil law. But if I am not misinformed, the same meaning would not be given to it in any part of New-England. There an appeal from one jury to another is familiar both in language and practice, and is even a matter of course, until there have been two verdicts on one side. The word "appellate" therefore will not be understood in the same sense in New-England as in New-York, which shews the impropriety of a technical interpretation derived from the jurisprudence of any particular state. The expression taken in the abstract, denotes nothing more than the power of one tribunal to review the proceedings of another, either as to the law or fact, or both. The mode of doing it may depend on ancient custom or legislative provision, (in a new

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government it must depend on the latter) and may be with or without the aid of a jury, as may be judged adviseable. If therefore the re-examination of a fact, once determined by a jury, should in any case be admitted under the proposed constitution, it may be so regulated as to be done by a second jury, either by remanding the cause to the court below for a second trial of the fact, or by directing an issue immediately out of the supreme court.

appellate jurisdiction, both as to law and fact,

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 (may it have been argued) will extend to causes determinable in different modes, some in the course of the COMMON LAW, and others in the course of the CIVIL LAW. In the former,

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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 ex|ception of cases, which shall have been originally tried by a jury, because in the courts of some of the states, all causes are tried in this mode; and such an exception would preclude the revision of matters of fact, as well where it might be proper, as where it might be improper. To avoid all inconveniencies, 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 en|able the government to modify it in such a manner as will best answer the ends of public justice and security.

This view of the matter, at any rate puts it out of all doubt that the supposed abolition of the trial by jury, by the operation of this provision, is, fallacious and untrue. The legislature of the United States would certainly have full power to provide that in appeals to the supreme court there should be no re-examination of facts where they had been tried in the original causes by juries. This would certainly be an autho|rised exception; but if for the reason already inti|mated it should be thought too extensive, it might be qualified with a limitation to such causes only as are determinable at common law in that mode of trial.

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The amount of the observations hitherto made on the authority of the judicial department is this—that it has been carefully restricted to those causes which are manifestly proper for the cognizance of the nati|onal judicature, that in the partition of this authority a very small portion of original jurisdiction has been reserved to the supreme court, and the rest consigned to the subordinate tribunals—that the supreme court will possess an appellate jurisdiction both as to law and fact in all the cases refered to them, but subject to any exceptions and regulations which may be thought adviseable; that this appellate jurisdiction does in no case abolish the trial by jury, and that an ordinary degree of prudence and integrity in the national councils will insure us solid advantages from the esta|blishment of the proposed judiciary, without expos|ing us to any of the inconveniencies which have been predicted from that source.

NUMBER LXXXII. A further View of the Judicial Depart|ment, in reference to some miscellaneous Questions.

THE erection of a new government, whatever care or wisdom may distinguish the work, can|not 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. 'Tis time only that can mature and perfect so compound a system, can liquidate the meaning of all the parts, and can adjust them to each other in a harmonious and consistent WHOLE.

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Such questions accordingly have arisen upon the plan proposed by the convention▪ and particularly concerning the judiciary department. The principal of these respect the situation of the state courts in regard to those causes, which are to be submitted to federal jurisdiction. Is this to be exclusive, or are those courts to possess a concurrent jurisdiction? If the latter, in what relation will they stand to the national tribunals? These are inquiries which we meet with in the mouths of men of sense, and which are certainly intitled 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 autho|rity is in express terms granted to the union; or where a particular authority is granted to the union, and the exercise of a like authority is prohibited to the states, or where an authority is granted to the union with which a similar authority in the states would be utterly incompatible. Though these prin|ciples may not apply with the same force to the judiciary as to the legislative power; yet I am inclined to think that they are in the main just with respect to the former as well as the latter. And under this impression I shall lay it down as a rule that the state courts will retain the jurisdiction they now have, unless it appears to be taken away in one of the enumerated modes.

The 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

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subordinate courts of the union should alone have the power of deciding those causes, to which their autho|rity is to extend; or simply to denote that the organs of the national judiciary should be one supreme court and as many subordinate courts as congress should think proper to appoint, or in other words, that the United States should exercise the judicial power with which they are to be invested through one supreme tribunal and a certain, number of inferior ones to be instituted by them. The first excludes, the last admits the concurrent jurisdiction of the state tribunals: And as the first would amount to an alienation of state power by implication, the last appears to me the most natural and the most defensible construction.

But this doctrine of concurrent jurisdiction is only clearly applicable to those descriptions of causes of which the state courts have previous cognizance. It is not equally evident in relation to cases which may grow out of, and be peculiar to the constitution to be established: For not to allow the state courts a right of jurisdiction in such cases can hardly be considered as the abridgement of a pre-existing authority. I mean not therefore to contend that the United States in the course of legislation upon the objects entrusted to their direction may not commit the decision of causes arising upon a particular regulation to the federal courts solely, if such a measure should be deemed expedient; but I hold that the state courts will be divested of no part of their primitive juris|diction, further than may relate to an appeal; and I am even of opinion, that in every case in which they were not expressly excluded by the future acts of the national legislature, they will of course take cognizance of the causes to which those acts may give birth. This I infer from the nature of judi|ciary power, and from the general genius of the system. The judiciary power of every government looks beyond its own local or municipal laws, and in

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civil cases lays hold of all subjects of litigation between parties within its jurisdiction though the causes of dispute are relative to the laws of the most distant part of the globe. Those of Japan not less than of New-York may furnish the objects of legal discussion to our courts. When in addition to this, we consider the state governments and the na|tional governments as they truly are, in the light of kindred systems and as parts of ONE WHOLE, the inference▪ seems to be conclusive that the state courts would have a concurrent jurisdiction in all cases arising under the laws of the union, where it was not expressly prohibited.

Here another question occurs—what relation would subsist between the national and state courts in these instances of concurrent jurisdiction? I answer that an appeal would certainly lie from the latter to the supreme court of the United States. The constitution in direct terms, gives an appellate jurisdiction to the supreme court in all the enumerated cases of federal cognizance, in which it is not to have an original one; without a single expression to confine its opera|tion to the inferior federal courts. The objects of appeal, not the tribunals from which it is to be made, are alone contemplated. From this circumstance and from the reason of the thing it ought to be construed to extend to the state tribunals. Either this must be the case, or the local courts must be excluded from a concurrent jurisdiction in matters of national con|cern, else the judiciary authority of the union may be eluded at the pleasure of every plantiff or prose|cutor. Neither of these consequences ought without evident necessity to be involved; the latter would be intirely inadmissible, as it would defeat some of the most important and avowed purposes of the proposed government, and would essentially embarrass its mea|sures. Nor do I perceive any foundation for such a sup|position. 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

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natural auxiliaries to the execution of the laws of the union, and an appeal from them will as naturally lie to that tribunal, which is destined to uni ••••• ••••• d assi|milate the principles of national justice and the rules of national decisions. The evident aim of the plan of the convention is that all the causes of the spe|cified classes, shall for weighty public reasons receive their original or final determination in the courts of the union. To confine therefore the general expres|sions giving appellate jurisdiction to the supreme court to appeals from the subordinate federal courts, instead of allowing their extension to the state courts, would be to abridge the latitude of the terms, in sub|version of the intent, contrary to every sound rule of interpretation.

to constitute tribunals infe|rior to the supreme court

the JUDICIAL POWER of the United States shall be vested in one supreme court and in such inferior courts as congre • • s shall ordain and establish;

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to the subordinate national tribunals; and many advantages attending the power of doing it may be imagi ••• ••• . It would diminish the motives to the multiplication of federal courts, and would admit of arrangements calculated to contract the appellate jurisdiction of the supreme court. The state tri|bunals may then be left with a more entire charge of federal causes; and appeals in most cases in which they may be deemed proper instead of being carried to the supreme court, may be made to lie from the state courts to district courts of the union.

NUMBER LXXXIII. 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 success in this state, and perhaps in several of the o • • her states, is that relative to the want of a constitutional provision for the trial by jury in civil cases. The disinge|nuous form in which this objection is usually stated, has been repeatedly adverted to and exposed; but continues to be pursued in all the conversations and writings of the opponents of the plan. The mere silence of the constitution in regard to civil causes , is represented as an abolition of the trial by jury; and the declamations to which it has afforded a pre|text, are artfully calculated to induce a persuasion that this pretended abolition is complete and uni|versal; extending not only to every species of civil, but even to criminal causes . To argue with respect to the latter, would, however, be as vain and fruitless, as to attempt the serious proof of the ex|istence of matter , or to demonstrate any of those pro|positions which by their own internal evidence force

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conviction, when expressed in language adapted to convey their meaning.

With regard to civil causes, subtleties almost too contemptible for refutation, have been adopted 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 dif|ference 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.

a specification of particulars is an exclusion of generals;

the expression of one thing is the exclusion of another.

The rules of legal interpretation are rules of common sense , adopted by the courts in the construc|tion of the laws. The true test therefore, of a just application of them, in its conformity to the source from which they are derived. This being the case, let me ask if it is consistent with reason or common sense to suppose, that a provision obliging the legis|lative power to commit the trial of criminal causes to juries, is a privation of its right to authorise or permit that mode of trial in other cases? Is it na|tural to suppose, that a command to do one thing, is a prohibition to the doing of another, which there was a previous power to do, and which is not in|compatible with the thing commanded to be done? If such a supposition would be unnatural and unrea|sonable, it cannot be rational to maintain that an injunction of the trial by jury in certain cases is an interdiction of it in others.

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A power to constitute courts, is a power to prescribe the mode of trial; and consequently, if nothing was said in the constitution on the subject of juries, the legislature would be at liberty either to adopt that institution, or to let it alone. This discretion in regard to criminal causes is abridged by the express injunction of trial by jury in all such cases; but it is of course left at large in relation to civil causes, there being a total silence on this head. The specification of an obligation to try all criminal causes in a par|ticular mode, excludes indeed the obligation or necessity of employing the same mode in civil causes, but does not abridge the power of the legislature to exercise that mode if it should be thought prop • • r. The pretence therefore, that the national legislature would not be at full liberty to submit all the civil causes of federal cognizance to the determination of juries, is a pretence destitute of all just foundation.

From these observations, this conclusion results, that the trial by jury in civil cases would not be abolished, and that the use attempted to be made of the maxims which have been quoted, is contrary to reason and common sense, and therefore not admis|sible. Even if these maxims had a precise technical sense, corresponding with the ideas of those who employ them upon the present occasion, which, how|ever, is not the case, they would still be inapplicable to a constitution of government. In relation to such a subject, the natural and obvious sense of its pro|visions, 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 use and true meaning. This will be best done by examples. The plan of the convention declares that the power of congress or in other words of the national legislature , shall extend to certain enumerated cases. This specification of par|ticulars evidently excludes all pretension to a general

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legislative authority; because an affirmative grant of special powers would be absurd as well as useless, if a general authority was intended.

In like manner, the judicial authority of the federal judicatures, is declared by the constitution to com|prehend certain cases particularly specified. The expression of those cases marks the precise limits beyond which the federal courts cannot extend their jurisdiction; because the objects of their cognizance being enumerated, the specification would be nuga|tory if it did not exclude all ideas of more exten|sive authority.

These examples might be sufficient to elucidate the maxims which have been mentioned, and designate the manner in which they should be used. But that there may be no possibility of misapprehension upon this subject I shall add one case more, to demonstrate the proper use of these maxims, and the abuse which has been made of them.

Let us suppose that by the laws of this state, a married woman was incapable of conveying her estate, and that the legislature, considering this as an evil, should enact that she might dispose of her property by deed executed in the presence of a magi|strate. In such a case there can be no doubt but the specification would amount to an exclusion of any other mode of conveyance; because the woman having no previous power to alienate her property, the specification determines the particular mode which she is, for that purpose, to avail herself of. But let us further suppose that in a subsequent part of the same act it should be declared that no woman should dispose of any estate of a determinate value without the consent of three of her nearest relations, signified by their signing the deed; could it be inferred from this regulation that a married woman might not procure the approbation of her relations to a deed for conveying property of inferior value? The position is too absurd to merit a refutation, and yet this is

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precisely the position which those must establish who contend that the trial by juries, in civil cases, is abolished, because it is expressly provided for in cases of a criminal nature.

From these observations it must appear unquesti|onably true that trial by jury is in no case abolished by the proposed constitution, and it is equally true that in those controversies between individuals in which the great body of the people are likely to be interested, that institution will remain precisely in the same situation in which it is placed by the state constitutions, and will be in no degree altered or influenced by the adoption of the plan under consi|deration. The foundation of this assertion is that the national judiciary will have no cognizance of them, and of course they will remain determinable as heretofore by the state courts only, and in the manner which the state constitutions and laws 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 articles of union by acts of the state legislatures, will belong exclusively to the jurisdiction of the state tribunals. Add to this that admiralty causes, and almost all those which are of equity jurisdiction are determinable under our own govern|ment 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 alter|ation in our system of government.

The friends and adversaries of the plan of the con|vention, if they agree in nothing else, concur a • • least in the value they set upon the trial by jury: Or if there is any difference between them, it consists in this; the former regard it as a valuable safeguard to liberty, the latter represent it as the very palladium of free government. For my own part, the more

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the operation of the institution has fallen under my observation, the more reason I have discovered for holding it in high estimation; and it would be alto|gether superfluous to examine to what extent it deserve • • to be esteemed useful or essential in a representative republic, or how much more merit it may be entitled to as a defence against the oppressions of an heredi|tary monarch, than as a barrier to the tyranny of popular magistrates in a popular government. Dis|cussions of this kind would be more curious than beneficial, as all are satisfied of the utility of the institution, and of its friendly aspect to liberty. But I must acknowledge that I cannot readily discern the inseparable connection between the existence of liberty and the trial by jury in civil cases. Arbi|trary impeachments, arbitrary methods of prose|cuting pretended offences, and arbitrary punishments upon arbitrary convictions have ever appeared to me to be the great engines of judicial despotism; and these have all relation to criminal proceedings. The trial by jury in criminal cases, aided by the habeas corpus act, seems therefore to be alone con|cerned in the question. And both of these are pro|vided for in the most ample manner in the plan of the convention.

It has been observed, that trial by jury is a safe|guard 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 imposed, or to the rule by which they are to be apportioned. If it can have any influence therefore, it must be upon the mode of collection, and the con|duct of the officers entrusted 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

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more summary proceeding of distress and sale, as in cases of rent. And it is acknowledged on all hands, that this is essential to the efficacy of the revenue laws. The dilatory course of a trial at law to re|cover the taxes imposed on individuals, would neither suit the exigencies of the public, nor promote the convenience of the citizens. It would often occa|sion 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 favor of trial by jury in criminal cases, will afford the security aimed at. Wilful abuses of a public authority, to the oppression of the subject, and every species of official extortion, are offences against the government; for which, the persons who commit them, may be indicted and punished according to the circumstances of the case.

The excellence of the trial by jury in civil cases, appears to depend on circumstances foreign to the preservation of liberty. The strongest argument in its 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 nomina|tion of special juries, are themselves standing officers, and acting individually, may be supposed more acces|sible to the touch of corruption than the judges, who are a collective body. It is not difficult to see that it would be in the power of those officers to select jurors who would serve the purpose of the party as well as a corrupted bench. In the next place, it may fairly be supposed that there would be less difficulty in gaining some of the jurors promiscuously taken from the public mass, than in gaining men who had been chosen by

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the government for their probity and good character. But making every deduction for these considerations the trial by jury must still be a valuable check upon corruption. It greatly multiplies the impediments to its success. As matters now stand, it would be necessary to corrupt both court and jury; for where the jury have gone evidently wrong, the court will generally grant a new trial, and it would be in most cases of little use to practice upon the jury, unless the court could be likewise gained. Here then is a double security; and it will readily be perceived that this complicated agency tends to preserve the purity of both institutions. By increasing the obstacles to success, it discourages attempts to seduce the integrity of either. The temptations to prostitution, which the judges might have to surmount, must certainly be much fewer while the co-operation of a jury is ne|cessary, than they might be if they had themselves the exclusive determination of all causes.

Notwithstanding therefore the doubts I have ex|pressed as to the essentiality of trial by jury, in civil cases, to liberty, I admit that it is in most cases, under proper regulations, an excellent method of de|termining questions of property; and that on this account alone it would be entitled to a constitutional provision in its favour, if it were possible to fix the limits within which it ought to be comprehended. There is however, in all cases, great difficulty in this; and men not blinded by enthusiasm, must be sensible that in a federal government which is a composition of societies whose ideas and institutions in relation to the matter materially vary from each other, that dif|ficulty must be not a little augmented. For my own part, at every new view I take of the subject, I be|come more convinced of the reality of the obstacles, which we are authoritatively informed, prevented the insertion of a provision on this head in the plan of the convention.

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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 com|plained of, in regard to this point, an explanation of it is necessary. In this state our judicial establish|ments resemble more nearly, than in any other, those of Great-Britain. We have courts of common law, courts of probates (analogous in certain matters to the spiritual courts in England) a court of admiralty, and a court of chancery. In the courts of common law only the trial by jury prevails, and this with some exceptions In all the others a single judge presides and proceeds in general either according to the course of the cannon or civil law, without the aid of a jury. In New-Jersey there is a court of chancery which proceeds like ours, but neither courts of admiralty, nor of probates, in the sense in which these last are established with us. In that state the courts of com|mon law have the cognizance of those causes, which with us are determinate in the courts of admiralty and of probates, and of course the jury trial is more extensive in New-Jersey than in New-York. In Pennsylvania this is perhaps still more the case, for there is no court of chancery in that state, and its common law courts have equity jurisdiction. It has a court of admiralty, but none of probates, at least on the plan of ours. Delaware has in these respects imitated Pennsylvania. Maryland approaches more nearly to New-York, as does also Virginia, except that the latter has a plurality of chancellors. North-Carolina bears most affinity to Pennsylvania; South-Carolina to Virginia. I believe however that in some of those states which have distinct courts of admiralty, the causes depending in them are triable by juries.

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In Georgia there are none but common law courts, and an appeal of course lies from the verdict of one jury to another, which is called a special jury, and for which a particular mode of appointment is marked out. In Connecticut they have no distinct courts, either of chancery or of admiralty, and their courts of probates have no jurisdiction of causes. Their common law courts have admiralty, and to a certain extent, equity jurisdiction. In cases of im|portance their general assembly is the only court of chancery. In Connecticut therefore the trial by jury extends in practice further than in any other state yet mentioned. Rhode Island is I believe in this parti|cular pretty much in the situation of Connecticut. Massachusetts and New-Hampshire, in regard to the blending of law, equity and admiralty, jurisdictions are in a similiar predicament. In the four eastern states the trial by jury not only stands upon a broader foun|dation 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 mate|rial diversity as well in the modification as in the ex|tent of the institution of trial by jury in civil cases in the several states; and from this fact, these obvi|ous 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 provi|sion altogether, and leaving the matter as it has been left, to legislative regulation.

The propositions which have been made for supply|ing the omission, have rather served to illustrate than to obviate the difficulty of the thing. The minority of Pennsylvania have proposed this mode of expression

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trial by jury shall be as here|tofore

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 similiar case in the state courts—that is to say admiralty causes should be tried in Connecticut by a jury, and in New-York without one. The capri|cious 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 judg|ment towards it. Whether the cause should be tried with or without a jury, would depend in a great num|ber of cases, on the accidental situation of the court and parties.

But this is not in my estimation the greatest objec|tion. I feel a deep and deliberate conviction, that there are many cases in which the trial by jury is an ineligible one. I think it so particularly in cases which concern the public peace with foreign nations; that is in most cases where the question turns wholly on the laws of nations. Of this nature among others are all prize causes. Juries cannot be supposed com|petent

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to investigations, that require a thorough know|ledge of the laws and usages of nations, and they will sometimes be under the influence of impressions which will not suffer them to pay sufficient regard to those considerations of public policy which ought to guide their enquiries. 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 proper pro|vince 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 im|practicable.

It will add great weight to this remark in relation to prize causes to mention that the method of deter|mining them has been thought worthy of particular regulation in various treaties between different powers of Europe, and that pursuant to such treaties they are determinable in Great-Britain in the last resort before the king himself in his privy council, where the fact as well as the law undergoes a re-exa|mination. This alone demonstrates the impolicy of inserting a fundamental provision in the constitution which would make the state systems a standard for the national government in the article under consi|deration, and the danger of incumbering the govern|ment with any constitutional provisions, the propriety of which is not indisputable.

My convictions are equally strong that great advantages result from the separation of the equity from the law jurisdiction; and that the causes which belong to the former would be improperly committed to juries. The great and primary use of a court of equity is to give relief in extraordinary cases , which are exceptions to general rules. To unite the juris|diction of such cases with the ordinary jurisdiction

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must have a tendency to unsettle the general rules and to subject every case that arises to a special deter|mination. While the separation of the one from the other has the contrary effect of rendering one a sentinel over the other, and of keeping each within the expedient limits. Besides this the circumstances that constitute cases proper for courts of equity, are in many instances so nice and intricate, that they are incompatible with the genius of trials by jury. They require often such long, deliberate and critical investi|gation as would be impracticable to men called from their occupations and obliged to decide before they were permitted to return to them. The simplicity and expedition which form the distinguishing characters of this mode of trial require that the matter to be decided should be reduced to some single and obvious point; while the litigations usual in chancery fre|quently comprehend a long train of minute and inde|pendent particulars.

It is true that the separation of the equity from the legal jurisdiction is peculiar to the English system of jurisprudence; which is the model that has been fol|lowed in several of the states. But it is equally true, that the trial by jury has been unknown in every case in which they have been united. And the sepa|ration is essen • • ial to the preservation of that insti|tution in it • • pristine purity. The nature of a court of equity will readily permit the extension of its juris|diction to matters of law, but it is not a little to be suspected▪ that the attempt to extend the jurisdiction of the courts of law to matters of equity will not only be unproductive of the advantages which may be derived from courts of chancery, on the plan upon which they are established in this state, but will tend gradually to change the nature of the courts of law, and to undermine the trial by jury, by in|troducing questions too complicated for a decision in that mode.

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These appear to be conclusive reasons against incorporating the systems of all the states in the for|mation of the national judiciary; according to what 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.

In civil actions between ci|tizens 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 proportion confined to one de|scription 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 im|perfection in the system. If the last, it affords a strong corroboration of the extreme difficulty of the thing.

But this is not all: If we advert to the observations already made respecting the courts that subsist in the several states of the union, and the different powers exercised by them, it will appear, that there are no expressions more vague and indeterminate than those which have been employed to characterise 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 juris|diction are ascertained in conformity to the rules which prevail in England upon that subject. In many of the other states, the boundaries are less precise. In some of them, every cause is to be t • • ied in a court of com|mon law, and upon that foundation every action may be considered as an action at common law, to be de|termined by a jury, if the parties or either of them

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chuse it. Hence the same irregularity and confusion would be introduced by a compliance with this pro|position, that I have already noticed as resulting from the regulation proposed by the Pennsylvania minority. In one state a cause would receive its determination from a jury, if the parties or either of them requested it; but in another state a cause exactly similar to the other must be decided without the intervention of a jury, because the state judicatories varied as to com|mon law jurisdiction.

It is obvious therefore that the Massachusetts pro|position, upon this subject, cannot operate as a ge|neral regulation until some uniform plan, with respect to the limits of common law and equitable jurisdic|tions shall be adopted by the different states. To devise a plan of that kind is a task arduous in itself, and which it would require much time and reflection to mature. It would be extremely difficult, if not impossible, to suggest any general regulation that would be acceptable to all the states in the union, or that would perfectly quadrate with the several state institutions.

It may be asked, why could not a reference have been made to the constitution of this state, taking that, which is allowed by me to be a good one, as a standard for the United States? I answer that it is not very probable the other states should entertain the same opinion of our institutions which we do ourselves. It is natural to suppose that they are hitherto more at|tached 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 con|vention, it is to be presumed that the adoption of it in that body, would have been rendered difficult by the predilection of each representation in favour of its own government; and it must be uncertain which of the states would have been taken as the model. It has been shewn that many of them would be im|proper ones. And I leave it to conjecture whether,

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under all circumstances, it is most likely that New-York or some other state would have been preferred. But admit that a judicious selection could have been effected in the convention, still there would have been great danger of jealousy and disgust in the other states, at the partiality which had been shewn to the institutions of one. The enemies of the plan would have been furnished with a fine pretext for raising a host of local prejudices against it, which perhaps might have hazarded in no inconsiderable degree, its final establishment.

To avoid the embarrassments of a definition of the cases which the trial by jury ought to embrace, it is some times suggested by men of enthusiastic tempers, that a provision might have been inserted for esta|blishing it in all cases whatsoever. For this I believe no precedent is to be found in any member of the union; and the considerations which have been stated in discussing the proposition of the minority of Penn|sylvania, 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 ar|duous 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 adviseable; or which might not have opened other sources of opposition to the great and essential object of introducing a firm national government.

I cannot but persuade myself on the other hand, that the different lights in which the subject has been placed in the course of these observations, will go far towards removing in candid minds, the appre|hensions they may have entertained on the point. They have tended to shew that the security of liberty is materially concerned only in the trial by jury in criminal cases, which is provided for in the most ample manner in the plan of the convention; that 〈◊〉 〈◊〉 in 〈◊〉 〈◊〉 the greate •• •• proportion of civil cases, and

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those in which the great body of the community is interested, that mode of trial will remain in its full force, as established in the state constitutions, un|touched and unaffected by the plan of the conven|tion: That it is no case abolished by that plan; and that there are great if not insurmountable diffi|culties 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 hap|pening in the affairs of society, may render a dif|ferent 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 present apply, and might as advantageously be abridged in others. It is con|ceded 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 presump|tion that its former extent has been found inconve|nient; and give room to suppose that future expe|rience may discover the propriety and utility of other exceptions. I suspect it to be impossible in the nature of the thing, to fix the salutary point at which the operation of the institution ought to stop; and this is with me a strong argument for leaving the matter to the discretion of the legislature.

This is now clearly understood to be the case in Great-Britain, and it is equally so in the state of Con|necticut; and yet it may be safely affirmed, that more numerous encroachments have been made upon

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the trial by jury in this state since the revolution, though provided for by a positive article of our con|stitution, than has happened in the same time either in Connecticut or Great-Britain. It may be added that these encroachments have generally originated with the men who endeavour to persuade the people they are the warmest defenders of popular liberty, but who have rarely suffered constitutional obstacles to arrest them in a favourite career. The truth is that the general GENIUS of a government is all that can be substantially relied upon for permanent effects. Particular provisions, though not altogether useless, have far l • • ss 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 ha • • sh and extraor|dinary 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 Con|necticut, which has been always regarded as the most popular state in the union, can boast of no constitu|tional provision for either.

NUMBER LXXXIV. Concerning several miscellaneous Objections.

IN the course of the foregoing review of the consti|tution I have taken notice of, and endeavoured to answer, most of the objections which have appeared against it. There however remain a few which either did not fall naturally under any particular head, or were forgotten in their proper places. These

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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 miscel|laneous points in a single paper.

The most considerable of these remaining objec|tions 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 this number. And yet the opposers of the new system in this state, who profess an unlimited admiration for its constitution, are among the most intemperate par|tizans of a bill of rights. To justify their zeal in this matter, they alledge two things; one is, that though the constitution of New-York has no bill of rights prefixed to it, yet it contains in the body of it various provisions in favour of particular privileges and rights, which in substance amount to the same thing; the other is, that the constitution adopts in their full extent the common and statute law of Great-Britain, by which many other rights not expressed in it are equally secured.

To the first I answer, that the constitution proposed by the convention contains, as well as the consti|tution of this state, a number of such provisions.

Judgment in cases of impeach|ment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honour, trust or profit under the United States; but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.

The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.

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attainder or ex post facto law shall be passed.

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.

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▪

Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.

The congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or for|feiture, except during the life of the person attainted.

It may well be a question whether these are not upon the whole, of equal importance with any which are to be found in the constitution of this state. The establishment of the writ of habeas corpus , the pro|hibition 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 and republicanism than any it contains. The creation of crimes after the commission of the fact, or in other words, the subjecting of men to pu|nishment for things which, when they were done, were breaches of no law, and the practice of arbitrary imprisonments have been in all ages the favourite and most formidable instruments of tyranny. The

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To bereave a man of life (says he) or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person by secretly hurrying him to goal, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.

the BULWARK of the British constitution.

Nothing need be said to illustrate the importance of the prohibition of titles of nobili • • y. This may truly be denominated the corner stone of republican government; for so long as they are excluded, there can never be serious danger that the government will be any other than that of the people.

to such alterations and provisions as the legislature shall from time to time make concerning the same.

It has been several times truly remarked, that bills of rights are in their or • • gin, stipulations between

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WE THE PEOPLE of the United States, to secure the blessings of liberty to ourselves and our posterity, do ordain and es • • ablish this con|stitution for the United States of America.

But a minute detail of particular rights is cer|tainly far less applicable to a constitution like that under consideration, which is merely intended to re|gulate the general political interests of the nation, than to a constitution which has the regulation of every species of personal and private concerns. If therefore the loud clamours against the plan of the convention on this score, are well founded, no epithet • • 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.

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I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed consti|tution, but would even be dangerous. They would contain various exceptions to powers which are 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 re|strained, when no power is given by which restric|tions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to • • surp, 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 autho|rity, which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it, was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights.

the liberty of the press shall be inviolably preserved?

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respecting it, must altogether depend on public opinion, and on the general spirit of the people and of the government. And here, after all, as inti|mated upon another occasion, must we seek for the only solid basis of all our rights.

There remai • • s 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. And the proposed constitution, if adopted, will be the bill of rights of the union. Is it one object of a bill of rights to declare and specify the political privile • • es of the citizens in the structure and admi|nistration of the government? This is done in the most ample and precise manner in the plan of the convention, c • • mprehending 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

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proceeding, which are relative to personal and pri|vate concerns? This we have seen has also been at|tended to, in a variety of cases, in the same plan. Adverting therefore to the substantial meaning of a bill of rights, it is absurd to allege that it is not to be found in the work of the convention. It may be said that it does not go far enough, though it will not be easy to make this appear; but it can with no propriety be contended that there is no such thing. It certainly must be immaterial what mode is ob|served as to the order of declaring the rights of the citizens, if they are to be found in any part of the instrument which establishes the government. And hence it must be apparent t •• •• t much of what has been said on this subject re ••• ••• merely on verbal and nominal distinctions, which are entirely foreign from the substance of the thing.

Another objection, which has been made, and which from the frequency of its repetition it is to be presumed is relied on, is of this nature:—It is improper (say the objectors) to confer such large powers, as are proposed, upon the national govern|ment; 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 controul. But there are satisfactory reasons to shew that the objection is in reality not well founded. There is in most of the arguments which relate to distance a palpable illusion of the imagi|nation. What are the sources of information by which the people in Montgomery county must regulate their judgment of the conduct of their representatives in the state legislature? Of personal observation they can

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have no benefit. This is confined to the citizens on the spot. They must therefore depend on the infor|mation of intelligent men, in whom they confide— and how must these men obtain their information? Evidently from the complection of public measures, from the public prints, from correspondences with their representatives, and with other persons who reside at the place of their deliberation. This does not apply to Montgomery county only, but to all the counties, at any considerable distance from the seat of government.

It is equally evident that the same sources of infor|mation would be open to the people, in relation to the conduct of their representatives in the general government; and the impediments to a prompt communication which distance may be supposed to create, will be overballanced by the effects of the vigilance of the state governments. The executive and legislative bodies of each state will be so many • • entinels over the persons employed in every depart|ment 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 constituents in the national councils, and can readily communicate the same knowledge to the people. Their disposition to apprise the community of whatever may prejudice its interests from another quarter, may be relied upon, if it were only from the rivalship of power. And we may conclude with the fullest assurance, that the people, through that channel, will be better informed of the conduct of their na|tional representatives, than they can be by any means they now possess of that of their state representatives.

It ought also to be remembered, that the citizens who inhabit the country at and near the seat of go|vernment, will in all questions that affect the general liberty and prosperity, have the same interest with those who are at a distance; and that they will stand

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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.

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 which I at present recollect, turns upon the article of expence. If it were even true that the adoption of the pro|posed government would occasion a considerable in|crease of expence, 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 radical alter|ations; that new and extensive powers ought to be granted to the national head, and that these require

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a different organization of the federal government, a single body being an unsafe depository of such ample authorities. In conceding all this, the question of expence must be given up, for it impossible, with any degree of safety, to narrow the foundation upon which the system is to stand. The two branches of t •• •• legislature are in the first instance, to consist of only sixty-five persons, which is the same number of which congress, under the existing confederation, may be composed. It is true that this number is intended to be increased; but this is to keep pace with the increase of the population and resources of the country. It is evident, that a less number would, even in the first instance, have been unsafe; and that a continuance of the present number would, in a more advanced stage of population, be a very in|adequate representation of the people.

Whence is the dreaded augmentation of expence to spring? One source pointed out, is the multipli|cation 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 trea|surer, assistants, clerks, &c. These offices are in|dispensable under any system, and will suffice under the new as well as under the old. As to ambassadors and other ministers and agents in foreign countries, the proposed constitution can make no other dif|ference, than to render their characters, where they reside, more respectable, and their services more useful. As to persons to be employed in the collec|tion of the revenues, it is unquestionably true that these will form a very considerable addition to the number of federal officers; but it will not follow, that this will occasion an increase of public expence.

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It will be in most cases nothing more than an ex|change of state officers for national officers. In the collection of all duties, for instance, the persons em|ployed 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 expence, to pay officers of the customs appointed by the state, or those appointed by the United States? There is no good reason to suppose, that either the number or the salaries of the latter, will be greater than those of the former.

Where then are we to seek for those additional ar|ticles of expence which are to swell the account to the enormous size that has been represented to us? The chief item which occurs to me, respects the support of the judges of the United States. I do not add the president, because there is now a president of congress, whose expences may not be far, if any thing, short of those which will be incurred on account of the pre|sident of the United States. The support of the judges will clearly be an extra expence, but to what extent will depend on the particular plan which may be adopted in practice in regard to this matter. But it can upon no reasonable plan amount to a sum which will be an object of material consequence.

Let us now see what there is to counterballance any extra expences that may attend the establishment of the proposed government. The first thing that presents itself is, that a great part of the business, which now keeps congress sitting through the year, will be transacted by the president. Even the ma|nagement of foreign negociations will naturally devolve upon him according to general principles concerted with the senate, and subject to their final concurrence. Hence it is evident, that a portion of the year will suffice for the session of both the senate and the house of representatives: We may suppose about a fourth for the latter, and a third or perhaps a half for the former. The extra business of treaties

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and appointments may give this extra occupation to the senate. From this circumstance we may infer, that until the house of representatives shall be in|creased greatly beyond its present number, there will be a considerable saving of expence from the dif|ference between the constant session of the present, and the temporary session of the future congress.

But there is another circumstance, of great impor|tance in the view of economy. The business of the United States has hitherto occupied the state legisla|tures as well as congress. The latter has made re|quisitions which the former have had to provide for. Hence it has happened that the sessions of the state legislatures have been protracted greatly beyond what was necessary for the execution of the mere local business of the states. More than half their time has been frequently employed in matters which related to the United States. Now the members who com|pose the legislatures of the several state 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 govern|ment will do all the business of the United States themselves, without the intervention of the state legislatures, who thenceforth will have only to attend to the affairs of their particular states, and will not have to sit in any proportion as long as they have heretofore done. This difference, in the time of the sessions of the state legislatures, will be all clear gain, and will alone form an article of saving, which may be regarded as an equivalent for any additional objects of expence that may be occasioned by the adoption of the new system.

The result from these observations is, that the sources of additional expence from the establishment of the proposed constitution are much fewer than may have been imagined, that they are counterbalanced

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by considerable objects of saving, and that while it is questionable on which side the scale will prepon|derate, it is certain that a government less expensive would be incompetent to the purposes of the union.

NUMBER LXXXV. Conclusion.

the analogy of the proposed go|vernment to your own state constitution,

the additional security, which its adoption will afford to republican government, to liberty and to pro|perty.

It is remarkable, that the resemblance of the pla • • of the convention to the act which organizes the go|vernment of this state holds, not less with regard to many of the supposed defects, than to the real ex|cellencies of the former. Among the pretended defects, are the re • • eligibility of the executive, the want of a council, the omission of a formal bill of rights, the omission of a provision respecting the liberty of the press: These and several others, which have been noted in the course of our inquiries, are as much chargeable on the existing constitution of this state, as on the one proposed for the Union. And a man must have slender pretensions to consist|ency, who can rail at the latter for imperfections

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which he finds no difficulty in excusing in the former. Nor indeed can there be a better proof of the insin|cerity and affectation of some of the zealous adver|saries of the plan of the convention among us, who profess to be the devoted admirers of the government under which they live, than the fury with which they have attacked that plan, for matters in regard to which our own constitution is equally, or perhaps more vulnerable.

The additional securities to republican govern|ment, to liberty and to property, to be derived from the adoption of the plan under consideration, consist chiefly in the restraints which the preservation of the union will impose on local factions and insurrections, and on the ambition of powerful individuals in single states, who might acquire credit and influence enough, from leaders and favorites, to become the despots of the people; in the diminution of the op|portunities to foreign intrigue, which the dissolution of the confederacy would invite and facilitate; in the prevention of extensive military establishments, which could not fail to grow out of wars between the states in a disunited situation; in the express gua|rantee of a republican form of government to each; in the absolute and universal exclusion of titles of nobility; and in the precautions against the repeti|tion of those practices on the part of the state govern|ments, which have undermined the foundations of property and credit, have planted mutual distrust in the breasts of all classes of citizens, and have occa|sioned an alm • • st universal prostration of morals.

Thus have I, my 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 endea|vours should be conducted. I have addressed myself purely to your judgments, and have studiously avoided those asperities which are too apt to disgrace

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political disputants of all parties, and which have been not a little provoked by the language and conduct of the opponents of the constitution. The charge of a conspiracy against the liberties of the people, which has been indiscriminately brought against the advocates of the plan, has something in it too wanton and too malignant not to excite the indignation of every man who feels in his own bosom a refutation of the calumny. The perpetual changes which have been rung upon the wealthy, the well-born and the great, have been such as to inspire the disgust of all sensible men. And the unwarrantable concealments and misrepresentations which have been in various ways practiced to keep the truth from the public eye, have been of a nature to demand the re|probation of all honest men. It is not impossible that these circumstances may have occasionally be|trayed me into intemperances of expression which I did not intend: It is certain that I have frequently felt a struggle between sensibility and moderation, and if the former has in some instances prevailed, it must be my excuse, that it has been neither often nor much.

Let us now pause and ask ourselves whether, in the course of these papers, the proposed constitution has not been satisfactorily vindicated from the aspersions thrown upon it, and whether it has not been shewn to be worthy of the public approbation, and neces|sary to the public safety and prosperity. Every man is bound to answer these questions to himself, accord|ing to the best of his conscience and understanding, and to act agreeably to the genuine and sober dictates of his judgment. This is a duty, from which nothing can give him a dispensation.—'Tis one that he is called upon, nay, constrained by all the obligations that form the bands of society, to discharge sincerely and honestly. — No partial motive, no particular • • nterest, no pride of opinion, no temporary passion or prejudice, will justify to himself, to his country or to his

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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 intire confi|dence in the arguments, which recommend the pro|posed system to your adoption; and that I am unable to discern any real force in th • • se by which it has been opposed. I am persuaded, that it is the best which our political situation, habits and opinions will admit, and superior to any the revolution has produced.

Concessions on the part of the friends of the plan, that it has not a claim to absolute perfection, have afforded matter of no small triumph to its enemies. Why, say they, should we adopt an imperfect thing? Why not amend it, and make it perfect before it is irrevocably established? This may be plausible enough, but it is only plausible. In the first place I remark, that the extent of these concessions has been greatly exaggerated They have been stated as amounting to an admission, that the plan is radically defective; and that, without material alterations, the rights and the interests of the community cannot be safely confided to it. This, as far as I have un|derstood the meaning of those who make the conces|sions, is an intire perversion of their sense. No ad|vocate of the measure can be found who will not declare as his sentiment, that the system, though it may not be perfect in every part, is upon the whole a good one, is the best that the present views and circumstances of the country will permit, and is such an one as promises every species of security which a reasonable people can desire.

I answer in the next place, that I should esteem it the extreme of imprudence to prolong the precarious,

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state of our national affairs, and to expose the union to the jeopardy of successive experiments, in the chi|merical pursuit of a perfect plan. I never expect to see a perfect work from imperfect man. The result of the deliberations of all collective bodies must ne|cessarily be a compound as well of the errors and prejudices, as of the good sense and wisdom of the individuals of whom they are composed. The com|pacts which are to embrace thirteen distinct states, in a common bond of amity and union, must as ne|cessarily be a compromise of as many dissimilar interests and inclinations. How can perfection spring from such materials?

The reasons assigned in an excellent little pamphlet lately published in this city are unanswerable to shew the utter improbability of assembling a new conven|tion, 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 produc|tion itself has had an extensive circulation. It is cer|tainly well worthy the perusal of every friend to his country. There is however one point of light in which the subject of amendments still remains to be considered; and in which it has not yet been exhi|bited to public view. I cannot resolve to conclude, without first taking a survey of it in this aspect.

It appears to me susceptible of absolute demonstra|tion, that it will be far more easy to obtain subsequent than previous amendments to the constitution. The moment an alteration is made in the present plan, it becomes, to the purpose of adoption, a new one, and must undergo a new decision of each state. To its complete establishment throughout the union, it will therefore require the concurrence of thirteen states. If, on the contrary, the constitution proposed should once be ratified by all the states as it stands, altera|tions in it may at any time be effected by nine states.

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Here then the chances are as thirteen to nine in favour of subsequent amendments, rather than of the original adoption of an intire system.

This is not all. Every constitution for the United States must inevitably consist of a great variety of particulars, in which thirteen independent states are to be accommodated in their interests or opinions of interest. We may of course expect to see, in any body of men charged with its original formation, very different combinations of the parts upon different points. Many of those who form 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 mould|ing and arranging all the particulars which are to compose the whole in such a manner as to satisfy all the parties to the compact; and hence also an immense multiplication of difficulties and casualties in obtain|ing 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 when|ever nine▪ or rather ten states, were united in the desire of a particular amendment, that amendment most infallibly take place. There can therefore be no comparison between the facility of eff • • cting an amendment, and that of establishing in the first in|stance a complete constitution.

In opposition to the probability of subsequent amendments it has been urged, that the persons dele|gated to the administration of the national govern|ment,

description Page 363

on the application of the legislatures of two-thirds of the states, (which at present amounts to nine) to call a convention for proposing amendments, which shall be valid to all intents and purposes, as part of the constitution, when ratified by the legislatures of three-fourths of the states, or by conventions in three-fourths thereof.

description Page 364

to erect barriers against the encroachments of the national authority.

If the foregoing argument is a fallacy, certain it is that I am myself deceived by it; for it is, in my conception, one of those rare instances in which a political truth can be brought to the test of mathe|matical demonstration. Those who see the matter in the same light with me, however zealous they may be for amendments, must agree in the propriety of a previous adoption, as the most direct road to their own object.

To balance a large state or society (says he) whether monarchical or republican, on general laws, is a work of so great difficulty, that no human genius, however comprehensive, is able by the mere dint of reason and reflection, to effect it. The judgments of many must unite in the work: EXPERIENCE must guide their labour: TIME must bring it to perfection: And the FEEL|ING of inconveniences must correct the mistakes which they inevitably fall into, in their first trials and experiments.

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The Federalist : a commentary on the Constitution of the United States, being a collection of essays written in support of the Constitution agreed upon September 17, 1787, by the Federal convention

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The Federalist: A Collection Of Essays, Written In Favour Of The New Constitution, As Agreed Upon By The Federal Convention, September 17, 1787, In Two Volumes Paperback – July 24, 2011

• Print length 222 pages
• Language English
• Publisher Nabu Press
• Publication date July 24, 2011
• Dimensions 7.44 x 0.47 x 9.69 inches
• ISBN-10 1173889035
• ISBN-13 978-1173889036
• See all details

Product details

• Publisher ‏ : ‎ Nabu Press (July 24, 2011)
• Language ‏ : ‎ English
• Paperback ‏ : ‎ 222 pages
• ISBN-10 ‏ : ‎ 1173889035
• ISBN-13 ‏ : ‎ 978-1173889036
• Item Weight ‏ : ‎ 14.3 ounces
• Dimensions ‏ : ‎ 7.44 x 0.47 x 9.69 inches

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The Writing of the U.S. Constitution: A Historical Milestone

An in-depth look at the creation of the u.s. constitution..

Just a few years after the Revolutionary War, James Madison, Alexander Hamilton, and George Washington feared their young country was on the brink of collapse. The Articles of Confederation, the initial governing document of the United States, proved to be too weak to effectively manage the affairs of the new nation. As a result, a new constitution was needed to establish a stronger central government.

On September 17, 1787, a group of men gathered in a closed meeting room to sign the greatest vision of human freedom in history, the U.S. Constitution. This document outlined the framework for the federal government and established the principles of democracy and individual rights that continue to shape the United States to this day.

'When a constitution is codified, we know what it says. Each organ of the state – the legislature, the executive and the judiciary – has a clear understanding of its powers and responsibilities. This clarity helps maintain a balance of power and prevent abuses of authority.

Test your knowledge ... Answer: A. There was a concern when the Constitution was written, in 1787, that the federal government would be too powerful. To address this concern, the Constitution included a system of checks and balances to ensure that no single branch of government could become too dominant.

In 2020, Chileans overwhelmingly supported writing a new constitution. Two years later, Chileans overwhelmingly rejected it. This demonstrates the importance of public participation and consensus-building in the constitutional process.

When was the Constitution written? The United States Constitution was written in 1787 during the Philadelphia Convention, now known as the Constitutional Convention. This historic gathering brought together delegates from the original 13 states to draft a new governing document for the nation.

Sunday, Sept. 17 is Constitution Day — but what is it exactly? Jordan Cash, assistant professor of political theory and constitutional law, explains that Constitution Day is a time to reflect on the values and principles enshrined in the U.S. Constitution and to educate citizens about the importance of civic engagement and constitutional literacy.

The main authors of the Constitution were James Madison, Alexander Hamilton, and John Jay. These three men were all delegates to the Constitutional Convention and played key roles in shaping the final document. Their ideas and insights continue to influence constitutional interpretation and legal theory in the United States.

The U.S. Constitution is a document that was written to lay out the roles of government. The Constitution has been amended since its inception to reflect changing societal norms and values. It remains a living document that adapts to the needs of the nation while upholding the principles of democracy and justice.

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