Federalist Papers No. 69 – 85

 

FEDERALIST No. 69

The Real Character of the Executive
From the New York Packet.
Friday, March 14, 1788.

HAMILTON

To the People of the State of New York:
I PROCEED now to trace the real characters of the proposed
Executive, as they are marked out in the plan of the convention.
This will serve to place in a strong light the unfairness of the
representations which have been made in regard to it.
The first thing which strikes our attention is, that the
executive authority, with few exceptions, is to be vested in a
single magistrate. This will scarcely, however, be considered as a
point upon which any comparison can be grounded; for if, in this
particular, there be a resemblance to the king of Great Britain,
there is not less a resemblance to the Grand Seignior, to the khan
of Tartary, to the Man of the Seven Mountains, or to the governor of
New York.
That magistrate is to be elected for FOUR years; and is to be
re-eligible as often as the people of the United States shall think
him worthy of their confidence. In these circumstances there is a
total dissimilitude between HIM and a king of Great Britain, who is
an HEREDITARY monarch, possessing the crown as a patrimony
descendible to his heirs forever; but there is a close analogy
between HIM and a governor of New York, who is elected for THREE
years, and is re-eligible without limitation or intermission. If we
consider how much less time would be requisite for establishing a
dangerous influence in a single State, than for establishing a like
influence throughout the United States, we must conclude that a
duration of FOUR years for the Chief Magistrate of the Union is a
degree of permanency far less to be dreaded in that office, than a
duration of THREE years for a corresponding office in a single State.
The President of the United States would be liable to be
impeached, tried, and, upon conviction of treason, bribery, or other
high crimes or misdemeanors, removed from office; and would
afterwards be liable to prosecution and punishment in the ordinary
course of law. The person of the king of Great Britain is sacred
and inviolable; there is no constitutional tribunal to which he is
amenable; no punishment to which he can be subjected without
involving the crisis of a national revolution. In this delicate and
important circumstance of personal responsibility, the President of
Confederated America would stand upon no better ground than a
governor of New York, and upon worse ground than the governors of
Maryland and Delaware.
The President of the United States is to have power to return a
bill, which shall have passed the two branches of the legislature,
for reconsideration; and the bill so returned is to become a law,
if, upon that reconsideration, it be approved by two thirds of both
houses. The king of Great Britain, on his part, has an absolute
negative upon the acts of the two houses of Parliament. The disuse
of that power for a considerable time past does not affect the
reality of its existence; and is to be ascribed wholly to the
crown’s having found the means of substituting influence to
authority, or the art of gaining a majority in one or the other of
the two houses, to the necessity of exerting a prerogative which
could seldom be exerted without hazarding some degree of national
agitation. The qualified negative of the President differs widely
from this absolute negative of the British sovereign; and tallies
exactly with the revisionary authority of the council of revision of
this State, of which the governor is a constituent part. In this
respect the power of the President would exceed that of the governor
of New York, because the former would possess, singly, what the
latter shares with the chancellor and judges; but it would be
precisely the same with that of the governor of Massachusetts, whose
constitution, as to this article, seems to have been the original
from which the convention have copied.
The President is to be the “commander-in-chief of the army and
navy of the United States, and of the militia of the several States,
when called into the actual service of the United States. He is to
have power to grant reprieves and pardons for offenses against the
United States, EXCEPT IN CASES OF IMPEACHMENT; to recommend to the
consideration of Congress such measures as he shall judge necessary
and expedient; to convene, on extraordinary occasions, both houses
of the legislature, or either of them, and, in case of disagreement
between them WITH RESPECT TO THE TIME OF ADJOURNMENT, to adjourn
them to such time as he shall think proper; to take care that the
laws be faithfully executed; and to commission all officers of the
United States.” In most of these particulars, the power of the
President will resemble equally that of the king of Great Britain
and of the governor of New York. The most material points of
difference are these: First. The President will have only the
occasional command of such part of the militia of the nation as by
legislative provision may be called into the actual service of the
Union. The king of Great Britain and the governor of New York have
at all times the entire command of all the militia within their
several jurisdictions. In this article, therefore, the power of the
President would be inferior to that of either the monarch or the
governor. Secondly. The President is to be commander-in-chief
of the army and navy of the United States. In this respect his
authority would be nominally the same with that of the king of Great
Britain, but in substance much inferior to it. It would amount to
nothing more than the supreme command and direction of the military
and naval forces, as first General and admiral of the Confederacy;
while that of the British king extends to the DECLARING of war and
to the RAISING and REGULATING of fleets and armies, all which, by
the Constitution under consideration, would appertain to the
legislature.1 The governor of New York, on the other hand, is
by the constitution of the State vested only with the command of its
militia and navy. But the constitutions of several of the States
expressly declare their governors to be commanders-in-chief, as well
of the army as navy; and it may well be a question, whether those
of New Hampshire and Massachusetts, in particular, do not, in this
instance, confer larger powers upon their respective governors, than
could be claimed by a President of the United States. Thirdly.
The power of the President, in respect to pardons, would extend to
all cases, EXCEPT THOSE OF IMPEACHMENT. The governor of New York
may pardon in all cases, even in those of impeachment, except for
treason and murder. Is not the power of the governor, in this
article, on a calculation of political consequences, greater than
that of the President? All conspiracies and plots against the
government, which have not been matured into actual treason, may be
screened from punishment of every kind, by the interposition of the
prerogative of pardoning. If a governor of New York, therefore,
should be at the head of any such conspiracy, until the design had
been ripened into actual hostility he could insure his accomplices
and adherents an entire impunity. A President of the Union, on the
other hand, though he may even pardon treason, when prosecuted in
the ordinary course of law, could shelter no offender, in any
degree, from the effects of impeachment and conviction. Would not
the prospect of a total indemnity for all the preliminary steps be a
greater temptation to undertake and persevere in an enterprise
against the public liberty, than the mere prospect of an exemption
from death and confiscation, if the final execution of the design,
upon an actual appeal to arms, should miscarry? Would this last
expectation have any influence at all, when the probability was
computed, that the person who was to afford that exemption might
himself be involved in the consequences of the measure, and might be
incapacitated by his agency in it from affording the desired
impunity? The better to judge of this matter, it will be necessary
to recollect, that, by the proposed Constitution, the offense of
treason is limited “to levying war upon the United States, and
adhering to their enemies, giving them aid and comfort”; and that
by the laws of New York it is confined within similar bounds.
Fourthly. The President can only adjourn the national legislature
in the single case of disagreement about the time of adjournment.
The British monarch may prorogue or even dissolve the Parliament.
The governor of New York may also prorogue the legislature of this
State for a limited time; a power which, in certain situations, may
be employed to very important purposes.
The President is to have power, with the advice and consent of
the Senate, to make treaties, provided two thirds of the senators
present concur. The king of Great Britain is the sole and absolute
representative of the nation in all foreign transactions. He can of
his own accord make treaties of peace, commerce, alliance, and of
every other description. It has been insinuated, that his authority
in this respect is not conclusive, and that his conventions with
foreign powers are subject to the revision, and stand in need of the
ratification, of Parliament. But I believe this doctrine was never
heard of, until it was broached upon the present occasion. Every
jurist2 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 utomst plentitude; and
that the compacts entered into by the royal authority have the most
complete legal validity and perfection, independent of any other
sanction. The Parliament, it is true, is sometimes seen employing
itself in altering the existing laws to conform them to the
stipulations in a new treaty; and this may have possibly given
birth to the imagination, that its co-operation was necessary to the
obligatory efficacy of the treaty. But this parliamentary
interposition proceeds from a different cause: from the necessity
of adjusting a most artificial and intricate system of revenue and
commercial laws, to the changes made in them by the operation of the
treaty; and of adapting new provisions and precautions to the new
state of things, to keep the machine from running into disorder. In
this respect, therefore, there is no comparison between the intended
power of the President and the actual power of the British sovereign.
The one can perform alone what the other can do only with the
concurrence of a branch of the legislature. It must be admitted,
that, in this instance, the power of the federal Executive would
exceed that of any State Executive. But this arises naturally from
the sovereign power which relates to treaties. If the Confederacy
were to be dissolved, it would become a question, whether the
Executives of the several States were not solely invested with that
delicate and important prerogative.
The President is also to be authorized to receive ambassadors
and other public ministers. This, though it has been a rich theme
of declamation, is more a matter of dignity than of authority. It
is a circumstance which will be without consequence in the
administration of the government; and it was far more convenient
that it should be arranged in this manner, than that there should be
a necessity of convening the legislature, or one of its branches,
upon every arrival of a foreign minister, though it were merely to
take the place of a departed predecessor.
The President is to nominate, and, WITH THE ADVICE AND CONSENT
OF THE SENATE, to appoint ambassadors and other public ministers,
judges of the Supreme Court, and in general all officers of the
United States established by law, and whose appointments are not
otherwise provided for by the Constitution. The king of Great
Britain is emphatically and truly styled the fountain of honor. He
not only appoints to all offices, but can create offices. He can
confer titles of nobility at pleasure; and has the disposal of an
immense number of church preferments. There is evidently a great
inferiority in the power of the President, in this particular, to
that of the British king; nor is it equal to that of the governor
of New York, if we are to interpret the meaning of the constitution
of the State by the practice which has obtained under it. The power
of appointment is with us lodged in a council, composed of the
governor and four members of the Senate, chosen by the Assembly.
The governor CLAIMS, and has frequently EXERCISED, the right of
nomination, and is ENTITLED to a casting vote in the appointment.
If he really has the right of nominating, his authority is in this
respect equal to that of the President, and exceeds it in the
article of the casting vote. In the national government, if the
Senate should be divided, no appointment could be made; in the
government of New York, if the council should be divided, the
governor can turn the scale, and confirm his own nomination.3
If we compare the publicity which must necessarily attend the mode
of appointment by the President and an entire branch of the national
legislature, with the privacy in the mode of appointment by the
governor of New York, closeted in a secret apartment with at most
four, and frequently with only two persons; and if we at the same
time consider how much more easy it must be to influence the small
number of which a council of appointment consists, than the
considerable number of which the national Senate would consist, we
cannot hesitate to pronounce that the power of the chief magistrate
of this State, in the disposition of offices, must, in practice, be
greatly superior to that of the Chief Magistrate of the Union.
Hence it appears that, except as to the concurrent authority of
the President in the article of treaties, it would be difficult to
determine whether that magistrate would, in the aggregate, possess
more or less power than the Governor of New York. And it appears
yet more unequivocally, that there is no pretense for the parallel
which has been attempted between him and the king of Great Britain.
But to render the contrast in this respect still more striking, it
may be of use to throw the principal circumstances of dissimilitude
into a closer group.
The President of the United States would be an officer elected
by the people for FOUR years; the king of Great Britain is a
perpetual and HEREDITARY prince. The one would be amenable to
personal punishment and disgrace; the person of the other is sacred
and inviolable. The one would have a QUALIFIED negative upon the
acts of the legislative body; the other has an ABSOLUTE negative.
The one would have a right to command the military and naval forces
of the nation; the other, in addition to this right, possesses that
of DECLARING war, and of RAISING and REGULATING fleets and armies by
his own authority. The one would have a concurrent power with a
branch of the legislature in the formation of treaties; the other
is the SOLE POSSESSOR of the power of making treaties. The one
would have a like concurrent authority in appointing to offices;
the other is the sole author of all appointments. The one can
confer no privileges whatever; the other can make denizens of
aliens, noblemen of commoners; can erect corporations with all the
rights incident to corporate bodies. The one can prescribe no rules
concerning the commerce or currency of the nation; the other is in
several respects the arbiter of commerce, and in this capacity can
establish markets and fairs, can regulate weights and measures, can
lay embargoes for a limited time, can coin money, can authorize or
prohibit the circulation of foreign coin. The one has no particle
of spiritual jurisdiction; the other is the supreme head and
governor of the national church! What answer shall we give to those
who would persuade us that things so unlike resemble each other?
The same that ought to be given to those who tell us that a
government, the whole power of which would be in the hands of the
elective and periodical servants of the people, is an aristocracy, a
monarchy, and a despotism.
PUBLIUS.
1 A writer in a Pennsylvania paper, under the signature of
TAMONY, has asserted that the king of Great Britain oweshis
prerogative as commander-in-chief to an annual mutiny bill. The
truth is, on the contrary, that his prerogative, in this respect, is
immenmorial, and was only disputed, “contrary to all reason and
precedent,” as Blackstone vol. i., page 262, expresses it, by the
Long Parliament of Charles I. but by the statute the 13th of Charles
II., chap. 6, it was declared to be in the king alone, for that the
sole supreme government and command of the militia within his
Majesty’s realms and dominions, and of all forces by sea and land,
and of all forts and places of strength, EVER WAS AND IS the
undoubted right of his Majesty and his royal predecessors, kings and
queens of England, and that both or either house of Parliament
cannot nor ought to pretend to the same.
2 Vide Blackstone’s “Commentaries,” vol i., p. 257.
3 Candor, however, demands an acknowledgment that I do not think
the claim of the governor to a right of nomination well founded.
Yet it is always justifiable to reason from the practice of a
government, till its propriety has been constitutionally questioned.
And independent of this claim, when we take into view the other
considerations, and pursue them through all their consequences, we
shall be inclined to draw much the same conclusion.

*There are two slightly different versions of No. 70 included here.

FEDERALIST No. 70

The Executive Department Further Considered
From the New York Packet.
Tuesday, March 18, 1788.

HAMILTON

To the People of the State of New York:
THERE is an idea, which is not without its advocates, that a
vigorous Executive is inconsistent with the genius of republican
government. The enlightened well-wishers to this species of
government must at least hope that the supposition is destitute of
foundation; since they can never admit its truth, without at the
same time admitting the condemnation of their own principles.
Energy in the Executive is a leading character in the definition of
good government. It is essential to the protection of the community
against foreign attacks; it is not less essential to the steady
administration of the laws; to the protection of property against
those irregular and high-handed combinations which sometimes
interrupt the ordinary course of justice; to the security of
liberty against the enterprises and assaults of ambition, of
faction, and of anarchy. Every man the least conversant in Roman
story, knows how often that republic was obliged to take refuge in
the absolute power of a single man, under the formidable title of
Dictator, as well against the intrigues of ambitious individuals who
aspired to the tyranny, and the seditions of whole classes of the
community whose conduct threatened the existence of all government,
as against the invasions of external enemies who menaced the
conquest and destruction of Rome.
There can be no need, however, to multiply arguments or examples
on this head. A feeble Executive implies a feeble execution of the
government. A feeble execution is but another phrase for a bad
execution; and a government ill executed, whatever it may be in
theory, must be, in practice, a bad government.
Taking it for granted, therefore, that all men of sense will
agree in the necessity of an energetic Executive, it will only
remain to inquire, what are the ingredients which constitute this
energy? How far can they be combined with those other ingredients
which constitute safety in the republican sense? And how far does
this combination characterize the plan which has been reported by
the convention?
The ingredients which constitute energy in the Executive are,
first, unity; secondly, duration; thirdly, an adequate provision
for its support; fourthly, competent powers.
The ingredients which constitute safety in the repub lican sense
are, first, a due dependence on the people, secondly, a due
responsibility.
Those politicians and statesmen who have been the most
celebrated for the soundness of their principles and for the justice
of their views, have declared in favor of a single Executive and a
numerous legislature. They have with great propriety, considered
energy as the most necessary qualification of the former, and have
regarded this as most applicable to power in a single hand, while
they have, with equal propriety, considered the latter as best
adapted to deliberation and wisdom, and best calculated to
conciliate the confidence of the people and to secure their
privileges and interests.
That unity is conducive to energy will not be disputed.
Decision, activity, secrecy, and despatch will generally
characterize the proceedings of one man in a much more eminent
degree than the proceedings of any greater number; and in
proportion as the number is increased, these qualities will be
diminished.
This unity may be destroyed in two ways: either by vesting the
power in two or more magistrates of equal dignity and authority; or
by vesting it ostensibly in one man, subject, in whole or in part,
to the control and co-operation of others, in the capacity of
counsellors to him. Of the first, the two Consuls of Rome may serve
as an example; of the last, we shall find examples in the
constitutions of several of the States. New York and New Jersey, if
I recollect right, are the only States which have intrusted the
executive authority wholly to single men.1 Both these methods
of destroying the unity of the Executive have their partisans; but
the votaries of an executive council are the most numerous. They
are both liable, if not to equal, to similar objections, and may in
most lights be examined in conjunction.
The experience of other nations will afford little instruction
on this head. As far, however, as it teaches any thing, it teaches
us not to be enamoured of plurality in the Executive. We have seen
that the Achaeans, on an experiment of two Praetors, were induced to
abolish one. The Roman history records many instances of mischiefs
to the republic from the dissensions between the Consuls, and
between the military Tribunes, who were at times substituted for the
Consuls. But it gives us no specimens of any peculiar advantages
derived to the state from the circumstance of the plurality of those
magistrates. That the dissensions between them were not more
frequent or more fatal, is a matter of astonishment, until we advert
to the singular position in which the republic was almost
continually placed, and to the prudent policy pointed out by the
circumstances of the state, and pursued by the Consuls, of making a
division of the government between them. The patricians engaged in
a perpetual struggle with the plebeians for the preservation of
their ancient authorities and dignities; the Consuls, who were
generally chosen out of the former body, were commonly united by the
personal interest they had in the defense of the privileges 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 peace of the
republic.
But quitting the dim light of historical research, attaching
ourselves purely to the dictates of reason and good se se, we shall
discover much greater cause to reject than to approve the idea of
plurality in the Executive, under any modification whatever.
Wherever two or more persons are engaged in any common
enterprise or pursuit, there is always danger of difference of
opinion. If it be a public trust or office, in which they are
clothed with equal dignity and authority, there is peculiar danger
of personal emulation and even animosity. From either, and
especially from all these causes, the most bitter dissensions are
apt to spring. Whenever these happen, they lessen the
respectability, weaken the authority, and distract the plans and
operation of those whom they divide. If they should unfortunately
assail the supreme executive magistracy of a country, consisting of
a plurality of persons, they might impede or frustrate the most
important measures of the government, in the most critical
emergencies of the state. And what is still worse, they might split
the community into the most violent and irreconcilable factions,
adhering differently to the different individuals who composed the
magistracy.
Men often oppose a thing, merely because they have had no agency
in planning it, or because it may have been planned by those whom
they dislike. But if they have been consulted, and have happened to
disapprove, opposition then becomes, in their estimation, an
indispensable duty of self-love. They seem to think themselves
bound in honor, and by all the motives of personal infallibility, to
defeat the success of what has been resolved upon contrary to their
sentiments. Men of upright, benevolent tempers have too many
opportunities of remarking, with horror, to what desperate lengths
this disposition is sometimes carried, and how often the great
interests of society are sacrificed to the vanity, to the conceit,
and to the obstinacy of individuals, who have credit enough to make
their passions and their caprices interesting to mankind. Perhaps
the question now before the public may, in its consequences, afford
melancholy proofs of the effects of this despicable frailty, or
rather detestable vice, in the human character.
Upon the principles of a free government, inconveniences from
the source just mentioned must necessarily be submitted to in the
formation of the legislature; but it is unnecessary, and therefore
unwise, to introduce them into the constitution of the Executive.
It is here too that they may be most pernicious. In the
legislature, promptitude of decision is oftener an evil than a
benefit. The differences of opinion, and the jarrings of parties in
that department of the government, though they may sometimes
obstruct salutary plans, yet often promote deliberation and
circumspection, and serve to check excesses in the majority. When a
resolution too is once taken, the opposition must be at an end.
That resolution is a law, and resistance to it punishable. But no
favorable circumstances palliate or atone for the disadvantages of
dissension in the executive department. Here, they are pure and
unmixed. There is no point at which they cease to operate. They
serve to embarrass and weaken the execution of the plan or measure
to which they relate, from the first step to the final conclusion of
it. They constantly counteract those qualities in the Executive
which are the most necessary ingredients in its composition, vigor
and expedition, and this without anycounterbalancing good. In the
conduct of war, in which the energy of the Executive is the bulwark
of the national security, every thing would be to be apprehended
from its plurality.
It must be confessed that these observations apply with
principal weight to the first case supposed that is, to a plurality
of magistrates of equal dignity and authority a scheme, the
advocates for which are not likely to form a numerous sect; but
they apply, though not with equal, yet with considerable weight to
the project of a council, whose concurrence is made constitutionally
necessary to the operations of the ostensible Executive. An artful
cabal in that council would be able to distract and to enervate the
whole system of administration. If no such cabal should exist, the
mere diversity of views and opinions would alone be sufficient to
tincture the exercise of the executive authority with a spirit of
habitual feebleness and dilatoriness.
But one of the weightiest objections to a plurality in the
Executive, and which lies as much against the last as the first
plan, is, that it tends to conceal faults and destroy responsibility.
Responsibility is of two kinds to censure and to punishment. The
first is the more important of the two, especially in an elective
office. Man, in public trust, will much oftener act in such a
manner as to render him unworthy of being any longer trusted, than
in such a manner as to make him obnoxious to legal punishment. But
the multiplication of the Executive adds to the difficulty of
detection in either case. It often becomes impossible, amidst
mutual accusations, to determine on whom the blame or the punishment
of a pernicious measure, or series of pernicious measures, ought
really to fall. It is shifted from one to another with so much
dexterity, and under such plausible appearances, that the public
opinion is left in suspense about the real author. The
circumstances which may have led to any national miscarriage 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 impossible to obtain any better
resolution on the point.” These and similar pretexts are
constantly at hand, whether true or false. And who is there that
will either take the trouble or incur the odium, of a strict
scrunity into the secret springs of the transaction? Should there
be found a citizen zealous enough to undertake the unpromising task,
if there happen to be collusion between the parties concerned, how
easy it is to clothe the circumstances with so much ambiguity, as to
render it uncertain what was the precise conduct of any of those
parties?
In the single instance in which the governor of this State is
coupled with a council that is, in the appointment to offices, we
have seen the mischiefs of it in the view now under consideration.
Scandalous appointments to important offices have been made. Some
cases, indeed, have been so flagrant that ALL PARTIES have agreed in
the impropriety of the thing. When inquiry has been made, the blame
has been laid by the governor on the members of the council, who, on
their part, have charged it upon his nomination; while the people
remain altogether at a loss to determine, by whose influence their
interests have been committed to hands so unqualified and so
manifestly improper. In tenderness to individuals, I forbear to
descend to particulars.
It is evident from these considerations, that the plurality of
the Executive tends to deprive the people of the two greatest
securities they can have for the faithful exercise of any delegated
power, first, the restraints of public opinion, which lose their
efficacy, as well on account of the division of the censure
attendant on bad measures among a number, as on account of the
uncertainty on whom it ought to fall; and, secondly, the
opportunity of discovering with facility and clearness the
misconduct of the persons they trust, in order either to their
removal from office or to their actual punishment in cases which
admit of it.
In England, the king is a perpetual magistrate; and it is a
maxim which has obtained for the sake of the pub lic peace, that he
is unaccountable for his administration, and his person sacred.
Nothing, therefore, can be wiser in that kingdom, than to annex to
the king a constitutional council, who may be responsible to the
nation for the advice they give. Without this, there would be no
responsibility whatever in the executive department an idea
inadmissible in a free government. But even there the king is not
bound by the resolutions of his council, though they are answerable
for the advice they give. He is the absolute master of his own
conduct in the exercise of his office, and may observe or disregard
the counsel given to him at his sole discretion.
But in a republic, where every magistrate ought to be personally
responsible for his behavior in office the reason which in the
British Constitution dictates the propriety of a council, not only
ceases to apply, but turns against the institution. In the monarchy
of Great Britain, it furnishes a substitute for the prohibited
responsibility of the chief magistrate, which serves in some degree
as a hostage to the national justice for his good behavior. In the
American republic, it would serve to destroy, or would greatly
diminish, the intended and necessary responsibility of the Chief
Magistrate himself.
The idea of a council to the Executive, which has so generally
obtained in the State constitutions, has been derived from that
maxim of republican jealousy which considers power as safer in the
hands of a number of men than of a single man. If the maxim should
be admitted to be applicable to the case, I should contend that the
advantage on that side would not counterbalance the numerous
disadvantages on the opposite side. But I do not think the rule at
all applicable to the executive power. I clearly concur in opinion,
in this particular, with a writer whom the celebrated Junius
pronounces to be “deep, solid, and ingenious,” that “the
executive power is more easily confined when it is ONE”;2 that
it is far more safe there should be a single object for the jealousy
and watchfulness of the people; and, in a word, that all
multiplication of the Executive is rather dangerous than friendly to
liberty.
A little consideration will satisfy us, that the species of
security sought for in the multiplication of the Executive, is
unattainable. Numbers must be so great as to render combination
difficult, or they are rather a source of danger than of security.
The united credit and influence of several individuals must be more
formidable to liberty, than the credit and influence of either of
them separately. When power, therefore, is placed in the hands of
so small a number of men, as to admit of their interests and views
being easily combined in a common enterprise, by an artful leader,
it becomes more liable to abuse, and more dangerous when abused,
than if it be lodged in the hands of one man; who, from the very
circumstance of his being alone, will be more narrowly watched and
more readily suspected, and who cannot unite so great a mass of
influence as when he is associated with others. The Decemvirs of
Rome, whose name denotes their number,3 were more to be dreaded
in their usurpation than any ONE of them would have been. No person
would think of proposing an Executive much more numerous than that
body; from six to a dozen have been suggested for the number of the
council. The extreme of these numbers, is not too great for an easy
combination; and from such a combination America would have more to
fear, than from the ambition of any single individual. A council to
a magistrate, who is himself responsible for what he does, are
generally nothing better than a clog upon his good intentions, are
often the instruments and accomplices of his bad and are almost
always a cloak to his faults.
I forbear to dwell upon the subject of expense; though it be
evident that if the council should be numerous enough to answer the
principal end aimed at by the institution, the salaries of the
members, who must be drawn from their homes to reside at the seat of
government, would form an item in the catalogue of public
expenditures too serious to be incurred for an object of equivocal
utility. I will only add that, prior to the appearance of the
Constitution, I rarely met with an intelligent man from any of the
States, who did not admit, as the result of experience, that the
UNITY of the executive of this State was one of the best of the
distinguishing features of our constitution.
PUBLIUS.
1 New York has no council except for the single purpose of
appointing to offices; New Jersey has a council whom the governor
may consult. But I think, from the terms of the constitution, their
resolutions do not bind him.
2 De Lolme.
3 Ten.

*There are two slightly different versions of No. 70 included here.

 

FEDERALIST No. 70

The Executive Department Further Considered
From the New York Packet.
Tuesday, March 18, 1788.

HAMILTON

To the People of the State of New York:
THERE is an idea, which is not without its advocates, that a
vigorous Executive is inconsistent with the genius of republican
government. The enlightened well-wishers to this species of
government must at least hope that the supposition is destitute of
foundation; since they can never admit its truth, without at the
same time admitting the condemnation of their own principles.
Energy in the Executive is a leading character in the definition of
good government. It is essential to the protection of the community
against foreign attacks; it is not less essential to the steady
administration of the laws; to the protection of property against
those irregular and high-handed combinations which sometimes
interrupt the ordinary course of justice; to the security of
liberty against the enterprises and assaults of ambition, of
faction, and of anarchy. Every man the least conversant in Roman
story, knows how often that republic was obliged to take refuge in
the absolute power of a single man, under the formidable title of
Dictator, as well against the intrigues of ambitious individuals who
aspired to the tyranny, and the seditions of whole classes of the
community whose conduct threatened the existence of all government,
as against the invasions of external enemies who menaced the
conquest and destruction of Rome.
There can be no need, however, to multiply arguments or examples
on this head. A feeble Executive implies a feeble execution of the
government. A feeble execution is but another phrase for a bad
execution; and a government ill executed, whatever it may be in
theory, must be, in practice, a bad government.
Taking it for granted, therefore, that all men of sense will
agree in the necessity of an energetic Executive, it will only
remain to inquire, what are the ingredients which constitute this
energy? How far can they be combined with those other ingredients
which constitute safety in the republican sense? And how far does
this combination characterize the plan which has been reported by
the convention?
The ingredients which constitute energy in the Executive are,
first, unity; secondly, duration; thirdly, an adequate provision
for its support; fourthly, competent powers.
The ingredients which constitute safety in the repub lican sense
are, first, a due dependence on the people, secondly, a due
responsibility.
Those politicians and statesmen who have been the most
celebrated for the soundness of their principles and for the justice
of their views, have declared in favor of a single Executive and a
numerous legislature. They have with great propriety, considered
energy as the most necessary qualification of the former, and have
regarded this as most applicable to power in a single hand, while
they have, with equal propriety, considered the latter as best
adapted to deliberation and wisdom, and best calculated to
conciliate the confidence of the people and to secure their
privileges and interests.
That unity is conducive to energy will not be disputed.
Decision, activity, secrecy, and despatch will generally
characterize the proceedings of one man in a much more eminent
degree than the proceedings of any greater number; and in
proportion as the number is increased, these qualities will be
diminished.
This unity may be destroyed in two ways: either by vesting the
power in two or more magistrates of equal dignity and authority; or
by vesting it ostensibly in one man, subject, in whole or in part,
to the control and co-operation of others, in the capacity of
counsellors to him. Of the first, the two Consuls of Rome may serve
as an example; of the last, we shall find examples in the
constitutions of several of the States. New York and New Jersey, if
I recollect right, are the only States which have intrusted the
executive authority wholly to single men.1 Both these methods
of destroying the unity of the Executive have their partisans; but
the votaries of an executive council are the most numerous. They
are both liable, if not to equal, to similar objections, and may in
most lights be examined in conjunction.
The experience of other nations will afford little instruction
on this head. As far, however, as it teaches any thing, it teaches
us not to be enamoured of plurality in the Executive. We have seen
that the Achaeans, on an experiment of two Praetors, were induced to
abolish one. The Roman history records many instances of mischiefs
to the republic from the dissensions between the Consuls, and
between the military Tribunes, who were at times substituted for the
Consuls. But it gives us no specimens of any peculiar advantages
derived to the state from the circumstance of the plurality of those
magistrates. That the dissensions between them were not more
frequent or more fatal, is a matter of astonishment, until we advert
to the singular position in which the republic was almost
continually placed, and to the prudent policy pointed out by the
circumstances of the state, and pursued by the Consuls, of making a
division of the government between them. The patricians engaged in
a perpetual struggle with the plebeians for the preservation of
their ancient authorities and dignities; the Consuls, who were
generally chosen out of the former body, were commonly united by the
personal interest they had in the defense of the privileges 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 peace of the
republic.
But quitting the dim light of historical research, attaching
ourselves purely to the dictates of reason and good se se, we shall
discover much greater cause to reject than to approve the idea of
plurality in the Executive, under any modification whatever.
Wherever two or more persons are engaged in any common
enterprise or pursuit, there is always danger of difference of
opinion. If it be a public trust or office, in which they are
clothed with equal dignity and authority, there is peculiar danger
of personal emulation and even animosity. From either, and
especially from all these causes, the most bitter dissensions are
apt to spring. Whenever these happen, they lessen the
respectability, weaken the authority, and distract the plans and
operation of those whom they divide. If they should unfortunately
assail the supreme executive magistracy of a country, consisting of
a plurality of persons, they might impede or frustrate the most
important measures of the government, in the most critical
emergencies of the state. And what is still worse, they might split
the community into the most violent and irreconcilable factions,
adhering differently to the different individuals who composed the
magistracy.
Men often oppose a thing, merely because they have had no agency
in planning it, or because it may have been planned by those whom
they dislike. But if they have been consulted, and have happened to
disapprove, opposition then becomes, in their estimation, an
indispensable duty of self-love. They seem to think themselves
bound in honor, and by all the motives of personal infallibility, to
defeat the success of what has been resolved upon contrary to their
sentiments. Men of upright, benevolent tempers have too many
opportunities of remarking, with horror, to what desperate lengths
this disposition is sometimes carried, and how often the great
interests of society are sacrificed to the vanity, to the conceit,
and to the obstinacy of individuals, who have credit enough to make
their passions and their caprices interesting to mankind. Perhaps
the question now before the public may, in its consequences, afford
melancholy proofs of the effects of this despicable frailty, or
rather detestable vice, in the human character.
Upon the principles of a free government, inconveniences from
the source just mentioned must necessarily be submitted to in the
formation of the legislature; but it is unnecessary, and therefore
unwise, to introduce them into the constitution of the Executive.
It is here too that they may be most pernicious. In the
legislature, promptitude of decision is oftener an evil than a
benefit. The differences of opinion, and the jarrings of parties in
that department of the government, though they may sometimes
obstruct salutary plans, yet often promote deliberation and
circumspection, and serve to check excesses in the majority. When a
resolution too is once taken, the opposition must be at an end.
That resolution is a law, and resistance to it punishable. But no
favorable circumstances palliate or atone for the disadvantages of
dissension in the executive department. Here, they are pure and
unmixed. There is no point at which they cease to operate. They
serve to embarrass and weaken the execution of the plan or measure
to which they relate, from the first step to the final conclusion of
it. They constantly counteract those qualities in the Executive
which are the most necessary ingredients in its composition, vigor
and expedition, and this without anycounterbalancing good. In the
conduct of war, in which the energy of the Executive is the bulwark
of the national security, every thing would be to be apprehended
from its plurality.
It must be confessed that these observations apply with
principal weight to the first case supposed that is, to a plurality
of magistrates of equal dignity and authority a scheme, the
advocates for which are not likely to form a numerous sect; but
they apply, though not with equal, yet with considerable weight to
the project of a council, whose concurrence is made constitutionally
necessary to the operations of the ostensible Executive. An artful
cabal in that council would be able to distract and to enervate the
whole system of administration. If no such cabal should exist, the
mere diversity of views and opinions would alone be sufficient to
tincture the exercise of the executive authority with a spirit of
habitual feebleness and dilatoriness.
But one of the weightiest objections to a plurality in the
Executive, and which lies as much against the last as the first
plan, is, that it tends to conceal faults and destroy responsibility.
Responsibility is of two kinds to censure and to punishment. The
first is the more important of the two, especially in an elective
office. Man, in public trust, will much oftener act in such a
manner as to render him unworthy of being any longer trusted, than
in such a manner as to make him obnoxious to legal punishment. But
the multiplication of the Executive adds to the difficulty of
detection in either case. It often becomes impossible, amidst
mutual accusations, to determine on whom the blame or the punishment
of a pernicious measure, or series of pernicious measures, ought
really to fall. It is shifted from one to another with so much
dexterity, and under such plausible appearances, that the public
opinion is left in suspense about the real author. The
circumstances which may have led to any national miscarriage 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 impossible to obtain any better
resolution on the point.” These and similar pretexts are
constantly at hand, whether true or false. And who is there that
will either take the trouble or incur the odium, of a strict
scrunity into the secret springs of the transaction? Should there
be found a citizen zealous enough to undertake the unpromising task,
if there happen to be collusion between the parties concerned, how
easy it is to clothe the circumstances with so much ambiguity, as to
render it uncertain what was the precise conduct of any of those
parties?
In the single instance in which the governor of this State is
coupled with a council that is, in the appointment to offices, we
have seen the mischiefs of it in the view now under consideration.
Scandalous appointments to important offices have been made. Some
cases, indeed, have been so flagrant that ALL PARTIES have agreed in
the impropriety of the thing. When inquiry has been made, the blame
has been laid by the governor on the members of the council, who, on
their part, have charged it upon his nomination; while the people
remain altogether at a loss to determine, by whose influence their
interests have been committed to hands so unqualified and so
manifestly improper. In tenderness to individuals, I forbear to
descend to particulars.
It is evident from these considerations, that the plurality of
the Executive tends to deprive the people of the two greatest
securities they can have for the faithful exercise of any delegated
power, first, the restraints of public opinion, which lose their
efficacy, as well on account of the division of the censure
attendant on bad measures among a number, as on account of the
uncertainty on whom it ought to fall; and, secondly, the
opportunity of discovering with facility and clearness the
misconduct of the persons they trust, in order either to their
removal from office or to their actual punishment in cases which
admit of it.
In England, the king is a perpetual magistrate; and it is a
maxim which has obtained for the sake of the pub lic peace, that he
is unaccountable for his administration, and his person sacred.
Nothing, therefore, can be wiser in that kingdom, than to annex to
the king a constitutional council, who may be responsible to the
nation for the advice they give. Without this, there would be no
responsibility whatever in the executive department an idea
inadmissible in a free government. But even there the king is not
bound by the resolutions of his council, though they are answerable
for the advice they give. He is the absolute master of his own
conduct in the exercise of his office, and may observe or disregard
the counsel given to him at his sole discretion.
But in a republic, where every magistrate ought to be personally
responsible for his behavior in office the reason which in the
British Constitution dictates the propriety of a council, not only
ceases to apply, but turns against the institution. In the monarchy
of Great Britain, it furnishes a substitute for the prohibited
responsibility of the chief magistrate, which serves in some degree
as a hostage to the national justice for his good behavior. In the
American republic, it would serve to destroy, or would greatly
diminish, the intended and necessary responsibility of the Chief
Magistrate himself.
The idea of a council to the Executive, which has so generally
obtained in the State constitutions, has been derived from that
maxim of republican jealousy which considers power as safer in the
hands of a number of men than of a single man. If the maxim should
be admitted to be applicable to the case, I should contend that the
advantage on that side would not counterbalance the numerous
disadvantages on the opposite side. But I do not think the rule at
all applicable to the executive power. I clearly concur in opinion,
in this particular, with a writer whom the celebrated Junius
pronounces to be “deep, solid, and ingenious,” that “the
executive power is more easily confined when it is ONE”;2 that
it is far more safe there should be a single object for the jealousy
and watchfulness of the people; and, in a word, that all
multiplication of the Executive is rather dangerous than friendly to
liberty.
A little consideration will satisfy us, that the species of
security sought for in the multiplication of the Executive, is
nattainable. Numbers must be so great as to render combination
difficult, or they are rather a source of danger than of security.
The united credit and influence of several individuals must be more
formidable to liberty, than the credit and influence of either of
them separately. When power, therefore, is placed in the hands of
so small a number of men, as to admit of their interests and views
being easily combined in a common enterprise, by an artful leader,
it becomes more liable to abuse, and more dangerous when abused,
than if it be lodged in the hands of one man; who, from the very
circumstance of his being alone, will be more narrowly watched and
more readily suspected, and who cannot unite so great a mass of
influence as when he is associated with others. The Decemvirs of
Rome, whose name denotes their number,3 were more to be dreaded
in their usurpation than any ONE of them would have been. No person
would think of proposing an Executive much more numerous than that
body; from six to a dozen have been suggested for the number of the
council. The extreme of these numbers, is not too great for an easy
combination; and from such a combination America would have more to
fear, than from the ambition of any single individual. A council to
a magistrate, who is himself responsible for what he does, are
generally nothing better than a clog upon his good intentions, are
often the instruments and accomplices of his bad and are almost
always a cloak to his faults.
I forbear to dwell upon the subject of expense; though it be
evident that if the council should be numerous enough to answer the
principal end aimed at by the institution, the salaries of the
members, who must be drawn from their homes to reside at the seat of
government, would form an item in the catalogue of public
expenditures too serious to be incurred for an object of equivocal
utility. I will only add that, prior to the appearance of the
Constitution, I rarely met with an intelligent man from any of the
States, who did not admit, as the result of experience, that the
UNITY of the executive of this State was one of the best of the
distinguishing features of our constitution.
PUBLIUS.
1 New York has no council except for the single purpose of
appointing to offices; New Jersey has a council whom the governor
may consult. But I think, from the terms of the constitution, their
resolutions do not bind him.
2 De Lolme.
3 Ten.

 

FEDERALIST No. 71

The Duration in Office of the Executive
From the New York Packet.
Tuesday, March 18, 1788.

HAMILTON

To the People of the State of New York:
DURATION in office has been mentioned as the second requisite to
the energy of the Executive authority. This has relation to two
objects: to the personal firmness of the executive magistrate, in
the employment of his constitutional powers; and to the stability
of the system of administration which may have been adopted under
his auspices. With regard to the first, it must be evident, that
the longer the duration in office, the greater will be the
probability of obtaining so important an advantage. It is a general
principle of human nature, that a man will be interested in whatever
he possesses, in proportion to the firmness or precariousness of the
tenure by which he holds it; will be less attached to what he holds
by a momentary or uncertain title, than to what he enjoys by a
durable or certain title; and, of course, will be willing to risk
more for the sake of the one, than for the sake of the other. This
remark is not less applicable to a political privilege, or honor, or
trust, than to any article of ordinary property. The inference from
it is, that a man acting in the capacity of chief magistrate, under
a consciousness that in a very short time he MUST lay down his
office, will be apt to feel himself too little interested in it to
hazard any material censure or perplexity, from the independent
exertion of his powers, or from encountering the ill-humors, however
transient, which may happen to prevail, either in a considerable
part of the society itself, or even in a predominant faction in the
legislative body. If the case should only be, that he MIGHT lay it
down, unless continued by a new choice, and if he should be desirous
of being continued, his wishes, conspiring with his fears, would
tend still more powerfully to corrupt his integrity, or debase his
fortitude. In either case, feebleness and irresolution must be the
characteristics of the station.
There are some who would be inclined to regard the servile
pliancy of the Executive to a prevailing current, either in the
community or in the legislature, as its best recommendation. But
such men entertain very crude notions, as well of the purposes for
which government was instituted, as of the true means by which the
public happiness may be promoted. The republican principle demands
that the deliberate sense of the community should govern the conduct
of those to whom they intrust the management of their affairs; but
it does not require an unqualified complaisance to every sudden
breeze of passion, or to every transient impulse which the people
may receive from the arts of men, who flatter their prejudices to
betray their interests. It is a just observation, that the people
commonly INTEND the PUBLIC GOOD. This often applies to their very
errors. But their good sense would despise the adulator who should
pretend that they always REASON RIGHT about the MEANS of promoting
it. They know from experience that they sometimes err; and the
wonder is that they so seldom err as they do, beset, as they
continually are, by the wiles of parasites and sycophants, by the
snares of the ambitious, the avaricious, the desperate, by the
artifices of men who possess their confidence more than they deserve
it, and of those who seek to possess rather than to deserve it.
When occasions present themselves, in which the interests of the
people are at variance with their inclinations, it is the duty of
the persons whom they have appointed to be the guardians of those
interests, to withstand the temporary delusion, in order to give
them time and opportunity for more cool and sedate reflection.
Instances might be cited in which a conduct of this kind has saved
the people from very fatal consequences of their own mistakes, and
has procured lasting monuments of their gratitude to the men who had
courage and magnanimity enough to serve them at the peril of their
displeasure.
But however inclined we might be to insist upon an unbounded
complaisance in the Executive to the inclinations of the people, we
can with no propriety contend for a like complaisance to the humors
of the legislature. The latter may sometimes stand in opposition to
the former, and at other times the people may be entirely neutral.
In either supposition, it is certainly desirable that the Executive
should be in a situation to dare to act his own opinion with vigor
and decision.
The same rule which teaches the propriety of a partition between
the various branches of power, teaches us likewise that this
partition ought to be so contrived as to render the one independent
of the other. To what purpose separate the executive or the
judiciary from the legislative, if both the executive and the
judiciary are so constituted as to be at the absolute devotion of
the legislative? Such a separation must be merely nominal, and
incapable of producing the ends for which it was established. It is
one thing to be subordinate to the laws, and another to be dependent
on the legislative body. The first comports with, the last
violates, the fundamental principles of good government; and,
whatever may be the forms of the Constitution, unites all power in
the same hands. The tendency of the legislative authority to absorb
every other, has been fully displayed and illustrated by examples in
some preceding numbers. In governments purely republican, this
tendency is almost irresistible. The representatives of the people,
in a popular assembly, seem sometimes to fancy that they are the
people themselves, and betray strong symptoms of impatience and
disgust at the least sign of opposition from any other quarter; as
if the exercise of its rights, by either the executive or judiciary,
were a breach of their privilege and an outrage to their dignity.
They often appear disposed to exert an imperious control over the
other departments; and as they commonly have the people on their
side, they always act with such momentum as to make it very
difficult for the other members of the government to maintain the
balance of the Constitution.
It may perhaps be asked, how the shortness of the duration in
office can affect the independence of the Executive on the
legislature, unless the one were possessed of the power of
appointing or displacing the other. One answer to this inquiry may
be drawn from the principle already remarked that is, from the
slender interest a man is apt to take in a short-lived advantage,
and the little inducement it affords him to expose himself, on
account of it, to any considerable inconvenience or hazard. Another
answer, perhaps more obvious, though not more conclusive, will
result from the consideration of the influence of the legislative
body over the people; which might be employed to prevent the
re-election of a man who, by an upright resistance to any sinister
project of that body, should have made himself obnoxious to its
resentment.
It may be asked also, whether a duration of four years would
answer the end proposed; and if it would not, whether a less
period, which would at least be recommended by greater security
against ambitious designs, would not, for that reason, be preferable
to a longer period, which was, at the same time, too short for the
purpose of inspiring the desired firmness and independence of the
magistrate.
It cannot be affirmed, that a duration of four years, or any
other limited duration, would completely answer the end proposed;
but it would contribute towards it in a degree which would have a
material influence upon the spirit and character of the government.
Between the commencement and termination of such a period, there
would always be a considerable interval, in which the prospect of
annihilation would be sufficiently remote, not to have an improper
effect upon the conduct of a man indued with a tolerable portion of
fortitude; and in which he might reasonably promise himself, that
there would be time enough before it arrived, to make the community
sensible of the propriety of the measures he might incline to pursue.
Though it be probable that, as he approached the moment when the
public were, by a new election, to signify their sense of his
conduct, his confidence, and with it his firmness, would decline;
yet both the one and the other would derive support from the
opportunities which his previous continuance in the station had
afforded him, of establishing himself in the esteem and good-will of
his constituents. He might, then, hazard with safety, in proportion
to the proofs he had given of his wisdom and integrity, and to the
title he had acquired to the respect and attachment of his
fellow-citizens. As, on the one hand, a duration of four years will
contribute to the firmness of the Executive in a sufficient degree
to render it a very valuable ingredient in the composition; so, on
the other, it is not enough to justify any alarm for the public
liberty. If a British 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 coequal branch of the legislature; if they have
been able, in one instance, to abolish both the royalty and the
aristocracy, and to overturn all the ancient 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
innovation1 attempted by them, what would be to be feared from
an elective magistrate of four years’ duration, with the confined
authorities of a President of the United States? What, but that he
might be unequal to the task which the Constitution assigns him? I
shall only add, that if his duration be such as to leave a doubt of
his firmness, that doubt is inconsistent with a jealousy of his
encroachments.
PUBLIUS.
1 This was the case with respect to Mr. Fox’s India bill, which
was carried in the House of Commons, and rejected in the House of
Lords, to the entire satisfaction, as it is said, of the people.

 

FEDERALIST No. 72

The Same Subject Continued, and Re-Eligibility of the Executive
Considered
From the New York Packet.
Friday, March 21, 1788.

HAMILTON

To the People of the State of New York:
THE administration of government, in its largest sense,
comprehends all the operations of the body politic, whether
legislative, executive, or judiciary; but in its most usual, and
perhaps its most precise signification. it is limited to executive
details, and falls peculiarly within the province of the executive
department. The actual conduct of foreign negotiations, the
preparatory plans of finance, the application and disbursement of
the public moneys in conformity to the general appropriations of the
legislature, the arrangement of the army and navy, the directions of
the operations of war, these, and other matters of a like nature,
constitute what seems to be most properly understood by the
administration of government. The persons, therefore, to whose
immediate management these different matters are committed, ought to
be considered as the assistants or deputies of the chief magistrate,
and on this account, they ought to derive their offices from his
appointment, at least from his nomination, and ought to be subject
to his superintendence. This view of the subject will at once
suggest to us the intimate connection between the duration of the
executive magistrate in office and the stability of the system of
administration. To reverse and undo what has been done by a
predecessor, is very often considered by a successor as the best
proof he can give of his own capacity and desert; and in addition
to this propensity, where the alteration has been the result of
public choice, the person substituted is warranted in supposing that
the dismission of his predecessor has proceeded from a dislike to
his measures; and that the less he resembles him, the more he will
recommend himself to the favor of his constituents. These
considerations, and the influence of personal confidences and
attachments, would be likely to induce every new President to
promote a change of men to fill the subordinate stations; and these
causes together could not fail to occasion a disgraceful and ruinous
mutability in the administration of the government.
With a positive duration of considerable extent, I connect the
circumstance of re-eligibility. The first is necessary to give to
the officer himself the inclination and the resolution to act his
part well, and to the community time and leisure to observe the
tendency of his measures, and thence to form an experimental
estimate of their merits. The last is necessary to enable the
people, when they see reason to approve of his conduct, to continue
him in his station, in order to prolong the utility of his talents
and virtues, and to secure to the government the advantage of
permanency in a wise system of administration.
Nothing appears more plausible at first sight, nor more
ill-founded upon close inspection, than a scheme which in relation
to the present point has had some respectable advocates, I mean that
of continuing the chief magistrate in office for a certain time, and
then excluding him from it, either for a limited period or forever
after. This exclusion, whether temporary or perpetual, would have
nearly the same effects, and these effects would be for the most
part rather pernicious than salutary.
One ill effect of the exclusion would be a diminution of the
inducements to good behavior. There are few men who would not feel
much less zeal in the discharge of a duty when they were conscious
that the advantages of the station with which it was connected must
be relinquished at a determinate period, than when they were
permitted to entertain a hope of OBTAINING, by MERITING, a
continuance of them. This position will not be disputed so long as
it is admitted that the desire of reward is one of the strongest
incentives of human conduct; or that the best security for the
fidelity of mankind is to make their interests coincide with their
duty. Even the love of fame, the ruling passion of the noblest
minds, which would prompt a man to plan and undertake extensive and
arduous enterprises for the public benefit, requiring considerable
time to mature and perfect them, if he could flatter himself with
the prospect of being allowed to finish what he had begun, would, on
the contrary, deter him from the undertaking, when he foresaw that
he must quit the scene before he could accomplish the work, and must
commit that, together with his own reputation, to hands which might
be unequal or unfriendly to the task. The most to be expected from
the generality of men, in such a situation, is the negative merit of
not doing harm, instead of the positive merit of doing good.
Another ill effect of the exclusion would be the temptation to
sordid views, to peculation, and, in some instances, to usurpation.
An avaricious man, who might happen to fill the office, looking
forward to a time when he must at all events yield up the emoluments
he enjoyed, would feel a propensity, not easy to be resisted by such
a man, to make the best use of the opportunity he enjoyed while it
lasted, and might not scruple to have recourse to the most corrupt
expedients to make the harvest as abundant as it was transitory;
though the same man, probably, with a different prospect before
him, might content himself with the regular perquisites of his
situation, and might even be unwilling to risk the consequences of
an abuse of his opportunities. His avarice might be a guard upon
his avarice. Add to this that the same man might be vain or
ambitious, as well as avaricious. And if he could expect to prolong
his honors by his good conduct, he might hesitate to sacrifice his
appetite for them to his appetite for gain. But with the prospect
before him of approaching an inevitable annihilation, his avarice
would be likely to get the victory over his caution, his vanity, or
his ambition.
An ambitious man, too, when he found himself seated on the
summit of his country’s honors, when he looked forward to the time
at which he must descend from the exalted eminence for ever, and
reflected that no exertion of merit on his part could save him from
the unwelcome reverse; such a man, in such a situation, would be
much more violently tempted to embrace a favorable conjuncture for
attempting the prolongation of his power, at every personal hazard,
than if he had the probability of answering the same end by doing
his duty.
Would it promote the peace of the community, or the stability of
the government to have half a dozen men who had had credit enough to
be raised to the seat of the supreme magistracy, wandering among the
people like discontented ghosts, and sighing for a place which they
were destined never more to possess?
A third ill effect of the exclusion would be, the depriving the
community of the advantage of the experience gained by the chief
magistrate in the exercise of his office. That experience is the
parent of wisdom, is an adage the truth of which is recognized by
the wisest as well as the simplest of mankind. What more desirable
or more essential than this quality in the governors of nations?
Where more desirable or more essential than in the first magistrate
of a nation? Can it be wise to put this desirable and essential
quality under the ban of the Constitution, and to declare that the
moment it is acquired, its possessor shall be compelled to abandon
the station in which it was acquired, and to which it is adapted?
This, nevertheless, is the precise import of all those regulations
which exclude men from serving their country, by the choice of their
fellowcitizens, after they have by a course of service fitted
themselves for doing it with a greater degree of utility.
A fourth ill effect of the exclusion would be the banishing men
from stations in which, in certain emergencies of the state, their
presence might be of the greatest moment to the public interest or
safety. There is no nation which has not, at one period or another,
experienced an absolute necessity of the services of particular men
in particular situations; perhaps it would not be too strong to
say, to the preservation of its political existence. How unwise,
therefore, must be every such self-denying ordinance as serves to
prohibit a nation from making use of its own citizens in the manner
best suited to its exigencies and circumstances! Without supposing
the personal essentiality of the man, it is evident that a change of
the chief magistrate, at the breaking out of a war, or at any
similar crisis, for another, even of equal merit, would at all times
be detrimental to the community, inasmuch as it would substitute
inexperience to experience, and would tend to unhinge and set afloat
the already settled train of the administration.
A fifth ill effect of the exclusion would be, that it would
operate as a constitutional interdiction of stability in the
administration. By NECESSITATING a change of men, in the first
office of the nation, it would necessitate a mutability of measures.
It is not generally to be expected, that men will vary and measures
remain uniform. The contrary is the usual course of things. And we
need not be apprehensive that there will be too much stability,
while there is even the option of changing; nor need we desire to
prohibit the people from continuing their confidence where they
think it may be safely placed, and where, by constancy on their
part, they may obviate the fatal inconveniences of fluctuating
councils and a variable policy.
These are some of the disadvantages which would flow from the
principle of exclusion. They apply most forcibly to the scheme of a
perpetual exclusion; but when we consider that even a partial
exclusion would always render the readmission of the person a remote
and precarious object, the observations which have been made will
apply nearly as fully to one case as to the other.
What are the advantages promised to counterbalance these
disadvantages? They are represented to be: 1st, greater
independence in the magistrate; 2d, greater security to the people.
Unless the exclusion be perpetual, there will be no pretense to
infer the first advantage. But even in that case, may he have no
object beyond his present station, to which he may sacrifice his
independence? May he have no connections, no friends, for whom he
may sacrifice it? May he not be less willing by a firm conduct, to
make personal enemies, when he acts under the impression that a time
is fast approaching, on the arrival of which he not only MAY, but
MUST, be exposed to their resentments, upon an equal, perhaps upon
an inferior, footing? It is not an easy point to determine whether
his independence would be most promoted or impaired by such an
arrangement.
As to the second supposed advantage, there is still greater
reason to entertain doubts concerning it. If the exclusion were to
be perpetual, a man of irregular ambition, of whom alone there could
be reason in any case to entertain apprehension, would, with
infinite reluctance, yield to the necessity of taking his leave
forever of a post in which his passion for power and 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 conceived circumstances in which this disgust of the
people, seconding the thwarted ambition of such a favorite, might
occasion greater danger to liberty, than could ever reasonably be
dreaded from the possibility of a perpetuation in office, by the
voluntary suffrages of the community, exercising a constitutional
privilege.
There is an excess of refinement in the idea of disabling the
people to continue in office men who had entitled themselves, in
their opinion, to approbation and confidence; the advantages of
which are at best speculative and equivocal, and are overbalanced by
disadvantages far more certain and decisive.
PUBLIUS

 

FEDERALIST No. 73

The Provision For The Support of the Executive, and the Veto Power
From the New York Packet.
Friday, March 21, 1788.

HAMILTON

To the People of the State of New York:
THE third ingredient towards constituting the vigor of the
executive authority, is an adequate provision for its support. It
is evident that, without proper attention to this article, the
separation of the executive from the legislative department would be
merely nominal and nugatory. The legislature, with a discretionary
power over the salary and emoluments of the Chief Magistrate, could
render him as obsequious to their will as they might think proper to
make him. They might, in most cases, either reduce him by famine,
or tempt him by largesses, to surrender at discretion his judgment
to their inclinations. These expressions, taken in all the latitude
of the terms, would no doubt convey more than is intended. There
are men who could neither be distressed nor won into a sacrifice of
their duty; but this stern virtue is the growth of few soils; and
in the main it will be found that a power over a man’s support is a
power over his will. If it were necessary to confirm so plain a
truth by facts, examples would not be wanting, even in this country,
of the intimidation or seduction of the Executive by the terrors or
allurements of the pecuniary arrangements of the legislative body.
It is not easy, therefore, to commend too highly the judicious
attention which has been paid to this subject in the proposed
Constitution. It is there provided that “The President of the
United States shall, at stated times, receive for his services a
compensation WHICH SHALL NEITHER BE INCREASED NOR DIMINISHED DURING
THE PERIOD FOR WHICH HE SHALL HAVE BEEN ELECTED; and he SHALL NOT
RECEIVE WITHIN THAT PERIOD ANY OTHER EMOLUMENT from the United
States, or any of them.” It is impossible to imagine any provision
which would have been more eligible than this. The legislature, on
the appointment of a President, is once for all to declare what
shall be the compensation for his services during the time for which
he shall have been elected. This done, they will have no power to
alter it, either by increase or diminution, till a new period of
service by a new election commences. They can neither weaken his
fortitude by operating on his necessities, nor corrupt his integrity
by appealing to his avarice. Neither the Union, nor any of its
members, will be at liberty to give, nor will he be at liberty to
receive, any other emolument than that which may have been
determined by the first act. He can, of course, have no pecuniary
inducement to renounce or desert the independence intended for him
by the Constitution.
The last of the requisites to energy, which have been
enumerated, are competent powers. Let us proceed to consider those
which are proposed to be vested in the President of the United
States.
The first thing that offers itself to our observation, is the
qualified negative of the President upon the acts or resolutions of
the two houses of the legislature; or, in other words, his power of
returning all bills with objections, to have the effect of
preventing their becoming laws, unless they should afterwards be
ratified by two thirds of each of the component members of the
legislative body.
The propensity of the legislative department to intrude upon the
rights, and to absorb the powers, of the other departments, has been
already suggested and repeated; the insufficiency of a mere
parchment delineation of the boundaries of each, has also been
remarked upon; and the necessity of furnishing each with
constitutional arms for its own defense, has been inferred and
proved. From these clear and indubitable principles results the
propriety of a negative, either absolute or qualified, in the
Executive, upon the acts of the legislative branches. Without the
one or the other, the former would be absolutely unable to defend
himself against the depredations of the latter. He might gradually
be stripped of his authorities by successive resolutions, or
annihilated by a single vote. And in the one mode or the other, the
legislative and executive powers might speedily come to be blended
in the same hands. If even no propensity had ever discovered itself
in the legislative body to invade the rights of the Executive, the
rules of just reasoning and theoretic propriety would of themselves
teach us, that the one ought not to be left to the mercy of the
other, but ought to possess a constitutional and effectual power of
selfdefense.
But the power in question has a further use. It not only serves
as a shield to the Executive, but it furnishes an additional
security against the enaction of improper laws. It establishes a
salutary check upon the legislative body, calculated to guard the
community against the effects of faction, precipitancy, or of any
impulse unfriendly to the public good, which may happen to influence
a majority of that body.
The propriety of a negative has, upon some occasions, been
combated by an observation, that it was not to be presumed a single
man would possess more virtue and wisdom than a number of men; and
that unless this presumption should be entertained, it would be
improper to give the executive magistrate any species of control
over the legislative body.
But this observation, when examined, will appear rather specious
than solid. The propriety of the thing does not turn upon the
supposition of superior wisdom or virtue in the Executive, but upon
the supposition that the legislature will not be infallible; that
the love of power may sometimes betray it into a disposition to
encroach upon the rights of other members of the government; that a
spirit of faction may sometimes pervert its deliberations; that
impressions of the moment may sometimes hurry it into measures which
itself, on maturer reflexion, would condemn. The primary inducement
to conferring the power in question upon the Executive is, to enable
him to defend himself; the secondary one is to increase the chances
in favor of the community against the passing of bad laws, through
haste, inadvertence, or design. The oftener the measure is brought
under examination, the greater the diversity in the situations of
those who are to examine it, the less must be the danger of those
errors which flow from want of due deliberation, or of those
missteps which proceed from the contagion of some common passion or
interest. It is far less probable, that culpable views of any kind
should infect all the parts of the government at the same moment and
in relation to the same object, than that they should by turns
govern and mislead every one of them.
It may perhaps be said that the power of preventing bad laws
includes that of preventing good ones; and may be used to the one
purpose as well as to the other. But this objection will have
little weight with those who can properly estimate the mischiefs of
that inconstancy and mutability in the laws, which form the greatest
blemish in the character and genius of our governments. They will
consider every institution calculated to restrain the excess of
law-making, and to keep things in the same state in which they
happen to be at any given period, as much more likely to do good
than harm; because it is favorable to greater stability in the
system of legislation. The injury which may possibly be done by
defeating a few good laws, will be amply compensated by the
advantage of preventing a number of bad ones.
Nor is this all. The superior weight and influence of the
legislative body in a free government, and the hazard to the
Executive in a trial of strength with that body, afford a
satisfactory security that the negative would generally be employed
with great caution; and there would oftener be room for a charge of
timidity than of rashness in the exercise of it. A king of Great
Britain, with all his train of sovereign attributes, and with all
the influence he draws from a thousand sources, would, at this day,
hesitate to put a negative upon the joint resolutions of the two
houses of Parliament. He would not fail to exert the utmost
resources of that influence to strangle a measure disagreeable to
him, in its progress to the throne, to avoid being reduced to the
dilemma of permitting it to take effect, or of risking the
displeasure of the nation by an opposition to the sense of the
legislative body. Nor is it probable, that he would ultimately
venture to exert his prerogatives, but in a case of manifest
propriety, or extreme necessity. All well-informed men in that
kingdom will accede to the justness of this remark. A very
considerable period has elapsed since the negative of the crown has
been exercised.
If a magistrate so powerful and so well fortified as a British
monarch, would have scruples about the exercise of the power under
consideration, how much greater caution may be reasonably expected
in a President of the United States, clothed for the short period of
four years with the executive authority of a government wholly and
purely republican?
It is evident that there would be greater danger of his not
using his power when necessary, than of his using it too often, or
too much. An argument, indeed, against its expediency, has been
drawn from this very source. It has been represented, on this
account, as a power odious in appearance, useless in practice. But
it will not follow, that because it might be rarely exercised, it
would never be exercised. In the case for which it is chiefly
designed, that of an immediate attack upon the constitutional rights
of the Executive, or in a case in which the public good was
evidently and palpably sacrificed, a man of tolerable firmness would
avail himself of his constitutional means of defense, and would
listen to the admonitions of duty and responsibility. In the former
supposition, his fortitude would be stimulated by his immediate
interest in the power of his office; in the latter, by the
probability of the sanction of his constituents, who, though they
would naturally incline to the legislative body in a doubtful case,
would hardly suffer their partiality to delude them in a very plain
case. I speak now with an eye to a magistrate possessing only a
common share of firmness. There are men who, under any
circumstances, will have the courage to do their duty at every
hazard.
But the convention have pursued a mean in this business, which
will both facilitate the exercise of the power vested in this
respect in the executive magistrate, and make its efficacy to depend
on the sense of a considerable part of the legislative body.
Instead of an absolute negative, it is proposed to give the
Executive the qualified negative already described. This is a power
which would be much more readily exercised than the other. A man
who might be afraid to defeat a law by his single VETO, might not
scruple to return it for reconsideration; subject to being finally
rejected only in the event of more than one third of each house
concurring in the sufficiency of his objections. He would be
encouraged by the reflection, that if his opposition should prevail,
it would embark in it a very respectable proportion of the
legislative body, whose influence would be united with his in
supporting the propriety of his conduct in the public opinion. A
direct and categorical negative has something in the appearance of
it more harsh, and more apt to irritate, than the mere suggestion of
argumentative objections to be approved or disapproved by those to
whom they are addressed. In proportion as it would be less apt to
offend, it would be more apt to be exercised; and for this very
reason, it may in practice be found more effectual. It is to be
hoped that it will not often happen that improper views will govern
so large a proportion as two thirds of both branches of the
legislature at the same time; and this, too, in spite of the
counterposing weight of the Executive. It is at any rate far less
probable that this should be the case, than that such views should
taint the resolutions and conduct of a bare majority. A power of
this nature in the Executive, will often have a silent and
unperceived, though forcible, operation. When men, engaged in
unjustifiable pursuits, are aware that obstructions may come from a
quarter which they cannot control, they will often be restrained by
the bare apprehension of opposition, from doing what they would with
eagerness rush into, if no such external impediments were to be
feared.
This qualified negative, as has been elsewhere remarked, is in
this State vested in a council, consisting of the governor, with the
chancellor and judges of the Supreme Court, or any two of them. It
has been freely employed upon a variety of occasions, and frequently
with success. And its utility has become so apparent, that persons
who, in compiling the Constitution, were violent opposers of it,
have from experience become its declared admirers.1
I have in another place remarked, that the convention, in the
formation of this part of their plan, had departed from the model of
the constitution of this State, in favor of that of Massachusetts.
Two strong reasons may be imagined for this preference. One is
that the judges, who are to be the interpreters of the law, might
receive an improper bias, from having given a previous opinion in
their revisionary capacities; the other is that by being often
associated with the Executive, they might be induced to embark too
far in the political views of that magistrate, and thus a dangerous
combination might by degrees be cemented between the executive and
judiciary departments. It is impossible to keep the judges too
distinct from every other avocation than that of expounding the laws.
It is peculiarly dangerous to place them in a situation to be
either corrupted or influenced by the Executive.
PUBLIUS.
1 Mr. Abraham Yates, a warm opponent of the plan of the
convention is of this number.

 

FEDERALIST No. 74

The Command of the Military and Naval Forces, and the Pardoning
Power of the Executive
From the New York Packet.
Tuesday, March 25, 1788.

HAMILTON

To the People of the State of New York:
THE President of the United States is to be “commander-in-chief
of the army and navy of the United States, and of the militia of the
several States WHEN CALLED INTO THE ACTUAL SERVICE of the United
States.” The propriety of this provision is so evident in itself,
and it is, at the same time, so consonant to the precedents of the
State constitutions in general, that little need be said to explain
or enforce it. Even those of them which have, in other respects,
coupled the chief magistrate with a council, have for the most part
concentrated the military authority in him alone. Of all the cares
or concerns of government, the direction of war most peculiarly
demands those qualities which distinguish the exercise of power by a
single hand. The direction of war implies the direction of the
common strength; and the power of directing and employing the
common strength, forms a usual and essential part in the definition
of the executive authority.
“The President may require the opinion, in writing, of the
principal officer in each of the executive departments, upon any
subject relating to the duties of their respective officers.” This
I consider as a mere redundancy in the plan, as the right for which
it provides would result of itself from the office.
He is also to be authorized to grant “reprieves and pardons for
offenses against the United States, EXCEPT IN CASES OF
IMPEACHMENT.” Humanity and good policy conspire to dictate, that
the benign prerogative of pardoning should be as little as possible
fettered or embarrassed. The criminal code of every country
partakes so much of necessary severity, that without an easy access
to exceptions in favor of unfortunate guilt, justice would wear a
countenance too sanguinary and cruel. As the sense of
responsibility is always strongest, in proportion as it is
undivided, it may be inferred that a single man would be most ready
to attend to the force of those motives which might plead for a
mitigation of the rigor of the law, and least apt to yield to
considerations which were calculated to shelter a fit object of its
vengeance. The reflection that the fate of a fellow-creature
depended on his sole fiat, would naturally inspire
scrupulousness and caution; the dread of being accused of weakness
or connivance, would beget equal circumspection, though of a
different kind. On the other hand, as men generally derive
confidence from their numbers, they might often encourage each other
in an act of obduracy, and might be less sensible to the
apprehension of suspicion or censure for an injudicious or affected
clemency. On these accounts, one man appears to be a more eligible
dispenser of the mercy of government, than a body of men.
The expediency of vesting the power of pardoning in the
President has, if I mistake not, been only contested in relation to
the crime of treason. This, it has been urged, ought to have
depended upon the assent of one, or both, of the branches of the
legislative body. I shall not deny that there are strong reasons to
be assigned for requiring in this particular the concurrence of that
body, or of a part of it. As treason is a crime levelled at the
immediate being of the society, when the laws have once ascertained
the guilt of the offender, there seems a fitness in referring the
expediency of an act of mercy towards him to the judgment of the
legislature. And this ought the rather to be the case, as the
supposition of the connivance of the Chief Magistrate ought not to
be entirely excluded. But there are also strong objections to such
a plan. It is not to be doubted, that a single man of prudence and
good sense is better fitted, in delicate conjunctures, to balance
the motives which may plead for and against the remission of the
punishment, than any numerous body whatever. It deserves particular
attention, that treason will often be connected with seditions which
embrace a large proportion of the community; as lately happened in
Massachusetts. In every such case, we might expect to see the
representation of the people tainted with the same spirit which had
given birth to the offense. And when parties were pretty equally
matched, the secret sympathy of the friends and favorers of the
condemned person, availing itself of the good-nature and weakness of
others, might frequently bestow impunity where the terror of an
example was necessary. On the other hand, when the sedition had
proceeded from causes which had inflamed the resentments of the
major party, they might often be found obstinate and inexorable,
when policy demanded a conduct of forbearance and clemency. But the
principal argument for reposing the power of pardoning in this case
to the Chief Magistrate is this: in seasons of insurrection or
rebellion, there are often critical moments, when a welltimed offer
of pardon to the insurgents or rebels may restore the tranquillity
of the commonwealth; and which, if suffered to pass unimproved, it
may never be possible afterwards to recall. The dilatory process of
convening the legislature, or one of its branches, for the purpose
of obtaining its sanction to the measure, would frequently be the
occasion of letting slip the golden opportunity. The loss of a
week, a day, an hour, may sometimes be fatal. If it should be
observed, that a discretionary power, with a view to such
contingencies, might be occasionally conferred upon the President,
it may be answered in the first place, that it is questionable,
whether, in a limited Constitution, that power could be delegated by
law; and in the second place, that it would generally be impolitic
beforehand to take any step which might hold out the prospect of
impunity. A proceeding of this kind, out of the usual course, would
be likely to be construed into an argument of timidity or of
weakness, and would have a tendency to embolden guilt.
PUBLIUS.

 

FEDERALIST No. 75

The Treaty-Making Power of the Executive
For the Independent Journal.

HAMILTON

To the People of the State of New York:
THE President is to have power, “by and with the advice and
consent of the Senate, to make treaties, provided two thirds of the
senators present concur.”
Though this provision has been assailed, on different grounds,
with no small degree of vehemence, I scruple not to declare my firm
persuasion, that it is one of the best digested and most
unexceptionable parts of the plan. One ground of objection is the
trite topic of the intermixture of powers; some contending that the
President ought alone to possess the power of making treaties;
others, that it ought to have been exclusively deposited in the
Senate. Another source of objection is derived from the small
number of persons by whom a treaty may be made. Of those who
espouse this objection, a part are of opinion that the House of
Representatives ought to have been associated in the business, while
another part seem to think that nothing more was necessary than to
have substituted two thirds of ALL the members of the Senate, to two
thirds of the members PRESENT. As I flatter myself the observations
made in a preceding number upon this part of the plan must have
sufficed to place it, to a discerning eye, in a very favorable
light, I shall here content myself with offering only some
supplementary remarks, principally with a view to the objections
which have been just stated.
With regard to the intermixture of powers, I shall rely upon the
explanations already given in other places, of the true sense of the
rule upon which that objection is founded; and shall take it for
granted, as an inference from them, that the union of the Executive
with the Senate, in the article of treaties, is no infringement of
that rule. I venture to add, that the particular nature of the
power of making treaties indicates a peculiar propriety in that
union. Though several writers on the subject of government place
that power in the class of executive authorities, yet this is
evidently an arbitrary disposition; for if we attend carefully to
its operation, it will be found to partake more of the legislative
than of the executive character, though it does not seem strictly to
fall within the definition of either of them. The essence of the
legislative authority is to enact laws, or, in other words, to
prescribe rules for the regulation of the society; while the
execution of the laws, and the employment of the common strength,
either for this purpose or for the common defense, seem to comprise
all the functions of the executive magistrate. The power of making
treaties is, plainly, neither the one nor the other. It relates
neither to the execution of the subsisting laws, nor to the enaction
of new ones; and still less to an exertion of the common strength.
Its objects are CONTRACTS with foreign nations, which have the
force of law, but derive it from the obligations of good faith.
They are not rules prescribed by the sovereign to the subject, but
agreements between sovereign and sovereign. The power in question
seems therefore to form a distinct department, and to belong,
properly, neither to the legislative nor to the executive. The
qualities elsewhere detailed as indispensable in the management of
foreign negotiations, point out the Executive as the most fit agent
in those transactions; while the vast importance of the trust, and
the operation of treaties as laws, plead strongly for the
participation of the whole or a portion of the legislative body in
the office of making them.
However proper or safe it may be in governments where the
executive magistrate is an hereditary monarch, to commit to him the
entire power of making treaties, it would be utterly unsafe and
improper to intrust that power to an elective magistrate of four
years’ duration. It has been remarked, upon another occasion, and
the remark is unquestionably just, that an hereditary monarch,
though often the oppressor of his people, has personally too much
stake in the government to be in any material danger of being
corrupted by foreign powers. But a man raised from the station of a
private citizen to the rank of chief magistrate, possessed of a
moderate or slender fortune, and looking forward to a period not
very remote when he may probably be obliged to return to the station
from which he was taken, might sometimes be under temptations to
sacrifice his duty to his interest, which it would require
superlative virtue to withstand. An avaricious man might be tempted
to betray the interests of the state to the acquisition of wealth.
An ambitious man might make his own aggrandizement, by the aid of a
foreign power, the price of his treachery to his constituents. The
history of human conduct does not warrant that exalted opinion of
human virtue which would make it wise in a nation to commit
interests of so delicate and momentous a kind, as those which
concern its intercourse with the rest of the world, to the sole
disposal of a magistrate created and circumstanced as would be a
President of the United States.
To have intrusted the power of making treaties to the Senate
alone, would have been to relinquish the benefits of the
constitutional agency of the President in the conduct of foreign
negotiations. It is true that the Senate would, in that case, have
the option of employing him in this capacity, but they would also
have the option of letting it alone, and pique or cabal might induce
the latter rather than the former. Besides this, the ministerial
servant of the Senate could not be expected to enjoy the confidence
and respect of foreign powers in the same degree with the
constitutional representatives of the nation, and, of course, would
not be able to act with an equal degree of weight or efficacy.
While the Union would, from this cause, lose a considerable
advantage in the management of its external concerns, the people
would lose the additional security which would result from the
co-operation of the Executive. Though it would be imprudent to
confide in him solely so important a trust, yet it cannot be doubted
that his participation would materially add to the safety of the
society. It must indeed be clear to a demonstration that the joint
possession of the power in question, by the President and Senate,
would afford a greater prospect of security, than the separate
possession of it by either of them. And whoever has maturely
weighed the circumstances which must concur in the appointment of a
President, will be satisfied that the office will always bid fair to
be filled by men of such characters as to render their concurrence
in the formation of treaties peculiarly desirable, as well on the
score of wisdom, as on that of integrity.
The remarks made in a former number, which have been alluded to
in another part of this paper, will apply with conclusive force
against the admission of the House of Representatives to a share in
the formation of treaties. The fluctuating and, taking its future
increase into the account, the multitudinous composition of that
body, forbid us to expect in it those qualities which are essential
to the proper execution of such a trust. Accurate and comprehensive
knowledge of foreign politics; a steady and systematic adherence to
the same views; a nice and uniform sensibility to national
character; decision, SECRECY, and despatch, are incompatible with
the genius of a body so variable and so numerous. The very
complication of the business, by introducing a necessity of the
concurrence of so many different bodies, would of itself afford a
solid objection. The greater frequency of the calls upon the House
of Representatives, and the greater length of time which it would
often be necessary to keep them together when convened, to obtain
their sanction in the progressive stages of a treaty, would be a
source of so great inconvenience and expense as alone ought to
condemn the project.
The only objection which remains to be canvassed, is that which
would substitute the proportion of two thirds of all the members
composing the senatorial body, to that of two thirds of the members
PRESENT. It has been shown, under the second head of our inquiries,
that all provisions which require more than the majority of any body
to its resolutions, have a direct tendency to embarrass the
operations of the government, and an indirect one to subject the
sense of the majority to that of the minority. This consideration
seems sufficient to determine our opinion, that the convention have
gone as far in the endeavor to secure the advantage of numbers in
the formation of treaties as could have been reconciled either with
the activity of the public councils or with a reasonable regard to
the major sense of the community. If two thirds of the whole number
of members had been required, it would, in many cases, from the
non-attendance of a part, amount in practice to a necessity of
unanimity. And the history of every political establishment in
which this principle has prevailed, is a history of impotence,
perplexity, and disorder. Proofs of this position might be adduced
from the examples of the Roman Tribuneship, the Polish Diet, and the
States-General of the Netherlands, did not an example at home render
foreign precedents unnecessary.
To require a fixed proportion of the whole body would not, in
all probability, contribute to the advantages of a numerous agency,
better then merely to require a proportion of the attending members.
The former, by making a determinate number at all times requisite
to a resolution, diminishes the motives to punctual attendance. The
latter, by making the capacity of the body to depend on a PROPORTION
which may be varied by the absence or presence of a single member,
has the contrary effect. And as, by promoting punctuality, it tends
to keep the body complete, there is great likelihood that its
resolutions would generally be dictated by as great a number in this
case as in the other; while there would be much fewer occasions of
delay. It ought not to be forgotten that, under the existing
Confederation, two members MAY, and usually DO, represent a State;
whence it happens that Congress, who now are solely invested with
ALL THE POWERS of the Union, rarely consist of a greater number of
persons than would compose the intended Senate. If we add to this,
that as the members vote by States, and that where there is only a
single member present from a State, his vote is lost, it will
justify a supposition that the active voices in the Senate, where
the members are to vote individually, would rarely fall short in
number of the active voices in the existing Congress. When, in
addition to these considerations, we take into view the co-operation
of the President, we shall not hesitate to infer that the people of
America would have greater security against an improper use of the
power of making treaties, under the new Constitution, than they now
enjoy under the Confederation. And when we proceed still one step
further, and look forward to the probable augmentation of the
Senate, by the erection of new States, we shall not only perceive
ample ground of confidence in the sufficiency of the members to
whose agency that power will be intrusted, but we shall probably be
led to conclude that a body more numerous than the Senate would be
likely to become, would be very little fit for the proper discharge
of the trust.
PUBLIUS

 

FEDERALIST No. 76

The Appointing Power of the Executive
From the New York Packet.
Tuesday, April 1, 1788.

HAMILTON

To the People of the State of New York:
THE President is “to NOMINATE, and, by and with the advice and
consent of the Senate, to appoint 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 commissions which shall EXPIRE at the end of their next
session.”
It has been observed in a former paper, that “the true test of
a good government is its aptitude and tendency to produce a good
administration.” If the justness of this observation be admitted,
the mode of appointing the officers of the United States contained
in the foregoing clauses, must, when examined, be allowed to be
entitled to particular commendation. It is not easy to conceive a
plan better calculated than this to promote a judicious choice of
men for filling the offices of the Union; and it will not need
proof, that on this point must essentially depend the character of
its administration.
It will be agreed on all hands, that the power of appointment,
in ordinary cases, ought to be modified in one of three ways. It
ought either to be vested in a single man, or in a SELECT assembly
of a moderate number; or in a single man, with the concurrence of
such an assembly. The exercise of it by the people at large will be
readily admitted to be impracticable; as waiving every other
consideration, it would leave them little time to do anything else.
When, therefore, mention is made in the subsequent reasonings of an
assembly or body of men, what is said must be understood to relate
to a select body or assembly, of the description already given. The
people collectively, from their number and from their dispersed
situation, cannot be regulated in their movements by that systematic
spirit of cabal and intrigue, which will be urged as the chief
objections to reposing the power in question in a body of men.
Those who have themselves reflected upon the subject, or who
have attended to the observations made in other parts of these
papers, in relation to the appointment of the President, will, I
presume, agree to the position, that there would always be great
probability of having the place supplied by a man of abilities, at
least respectable. Premising this, I proceed to lay it down as a
rule, that one man of discernment is better fitted to analyze and
estimate the peculiar qualities adapted to particular offices, than
a body of men of equal or perhaps even of superior discernment.
The sole and undivided responsibility of one man will naturally
beget a livelier sense of duty and a more exact regard to reputation.
He will, on this account, feel himself under stronger obligations,
and more interested to investigate with care the qualities requisite
to the stations to be filled, and to prefer with impartiality the
persons who may have the fairest pretensions to them. He will have
FEWER personal attachments to gratify, than a body of men who may
each be supposed to have an equal number; and will be so much the
less liable to be misled by the sentiments of friendship and of
affection. A single well-directed man, by a single understanding,
cannot be distracted and warped by that diversity of views,
feelings, and interests, which frequently distract and warp the
resolutions of a collective body. There is nothing so apt to
agitate the passions of mankind as personal considerations whether
they relate to ourselves or to others, who are to be the objects of
our choice or preference. Hence, in every exercise of the power of
appointing to offices, by an assembly of men, we must expect to see
a full display of all the private and party likings and dislikes,
partialities and antipathies, attachments and animosities, which are
felt by those who compose the assembly. The choice which may at any
time happen to be made under such circumstances, will of course be
the result either of a victory gained by one party over the other,
or of a compromise between the parties. In either case, the
intrinsic merit of the candidate will be too often out of sight. In
the first, the qualifications best adapted to uniting the suffrages
of the party, will be more considered than those which fit the
person for the station. In the last, the coalition will commonly
turn upon some interested equivalent: “Give us the man we wish for
this office, and you shall have the one you wish for that.” This
will be the usual condition of the bargain. And it will rarely
happen that the advancement of the public service will be the
primary object either of party victories or of party negotiations.
The truth of the principles here advanced seems to have been
felt by the most intelligent of those who have found fault with the
provision made, in this respect, by the convention. They contend
that the President ought solely to have been authorized to make the
appointments under the federal government. But it is easy to show,
that every advantage to be expected from such an arrangement would,
in substance, be derived from the power of NOMINATION, which is
proposed to be conferred upon him; while several disadvantages
which might attend the absolute power of appointment in the hands of
that officer would be avoided. In the act of nomination, his
judgment alone would be exercised; and as it would be his sole duty
to point out the man who, with the approbation of the Senate, should
fill an office, his responsibility would be as complete as if he
were to make the final appointment. There can, in this view, be no
difference others, who are to be the objects of our choice or
preference. Hence, in every exercise of the power of appointing to
offices, by an assembly of men, we must expect to see a full display
of all the private and party likings and dislikes, partialities and
antipathies, attachments and animosities, which are felt by those
who compose the assembly. The choice which may at any time happen
to be made under such circumstances, will of course be the result
either of a victory gained by one party over the other, or of a
compromise between the parties. In either case, the intrinsic merit
of the candidate will be too often out of sight. In the first, the
qualifications best adapted to uniting the suffrages of the party,
will be more considered than those which fit the person for the
station. In the last, the coalition will commonly turn upon some
interested equivalent: “Give us the man we wish for this office,
and you shall have the one you wish for that.” This will be the
usual condition of the bargain. And it will rarely happen that the
advancement of the public service will be the primary object either
of party victories or of party negotiations.
The truth of the principles here advanced seems to have been
felt by the most intelligent of those who have found fault with the
provision made, in this respect, by the convention. They contend
that the President ought solely to have been authorized to make the
appointments under the federal government. But it is easy to show,
that every advantage to be expected from such an arrangement would,
in substance, be derived from the power of NOMINATION, which is
proposed to be conferred upon him; while several disadvantages
which might attend the absolute power of appointment in the hands of
that officer would be avoided. In the act of nomination, his
judgment alone would be exercised; and as it would be his sole duty
to point out the man who, with the approbation of the Senate, should
fill an office, his responsibility would be as complete as if he
were to make the final appointment. There can, in this view, be no
difference between nominating and appointing. The same motives
which would influence a proper discharge of his duty in one case,
would exist in the other. And as no man could be appointed but on
his previous nomination, every man who might be appointed would be,
in fact, his choice.
But might not his nomination be overruled? I grant it might,
yet this could only be to make place for another nomination by
himself. The person ultimately appointed must be the object of his
preference, though perhaps not in the first degree. It is also not
very probable that his nomination would often be overruled. The
Senate could not be tempted, by the preference they might feel to
another, to reject the one proposed; because they could not assure
themselves, that the person they might wish would be brought forward
by a second or by any subsequent nomination. They could not even be
certain, that a future nomination would present a candidate in any
degree more acceptable to them; and as their dissent might cast a
kind of stigma upon the individual rejected, and might have the
appearance of a reflection upon the judgment of the chief
magistrate, it is not likely that their sanction would often be
refused, where there were not special and strong reasons for the
refusal.
To what purpose then require the co-operation of the Senate? I
answer, that the necessity of their concurrence would have a
powerful, though, in general, a silent operation. It would be an
excellent check upon a spirit of favoritism in the President, and
would tend greatly to prevent the appointment of unfit characters
from State prejudice, from family connection, from personal
attachment, or from a view to popularity. In addition to this, it
would be an efficacious source of stability in the administration.
It will readily be comprehended, that a man who had himself the
sole disposition of offices, would be governed much more by his
private inclinations and interests, than when he was bound to submit
the propriety of his choice to the discussion and determination of a
different and independent body, and that body an entier branch of
the legislature. The possibility of rejection would be a strong
motive to care in proposing. The danger to his own reputation, and,
in the case of an elective magistrate, to his political existence,
from betraying a spirit of favoritism, or an unbecoming pursuit of
popularity, to the observation of a body whose opinion would have
great weight in forming that of the public, could not fail to
operate as a barrier to the one and to the other. He would be both
ashamed and afraid to bring forward, for the most distinguished or
lucrative stations, candidates who had no other merit than that of
coming from the same State to which he particularly belonged, or of
being in some way or other personally allied to him, or of
possessing the necessary insignificance and pliancy to render them
the obsequious instruments of his pleasure.
To this reasoning it has been objected that the President, by
the influence of the power of nomination, may secure the
complaisance of the Senate to his views. This supposition of
universal venalty in human nature is little less an error in
political reasoning, than the supposition of universal rectitude.
The institution of delegated power implies, that there is a portion
of virtue and honor among mankind, which may be a reasonable
foundation of confidence; and experience justifies the theory. It
has been found to exist in the most corrupt periods of the most
corrupt governments. The venalty of the British House of Commons
has been long a topic of accusation against that body, in the
country to which they belong as well as in this; and it cannot be
doubted that the charge is, to a considerable extent, well founded.
But it is as little to be doubted, that there is always a large
proportion of the body, which consists of independent and
public-spirited men, who have an influential weight in the councils
of the nation. Hence it is (the present reign not excepted) that
the sense of that body is often seen to control the inclinations of
the monarch, both with regard to men and to measures. Though it
might therefore be allowable to suppose that the Executive might
occasionally influence some individuals in the Senate, yet the
supposition, that he could in general purchase the integrity of the
whole body, would be forced and improbable. A man disposed to view
human nature as it is, without either flattering its virtues or
exaggerating its vices, will see sufficient ground of confidence in
the probity of the Senate, to rest satisfied, not only that it will
be impracticable to the Executive to corrupt or seduce a majority of
its members, but that the necessity of its co-operation, in the
business of appointments, will be a considerable and salutary
restraint upon the conduct of that magistrate. Nor is the integrity
of the Senate the only reliance. The Constitution has provided some
important guards against the danger of executive influence upon the
legislative body: it declares that “No senator or representative
shall during the time FOR WHICH HE WAS ELECTED, be appointed to any
civil office under the United States, which shall have been created,
or the emoluments whereof shall have been increased, during such
time; and no person, holding any office under the United States,
shall be a member of either house during his continuance in
office.”
PUBLIUS

 

FEDERALIST No. 77

The Appointing Power Continued and Other Powers of the Executive
Considered
From the New York Packet.
Friday, April 4, 1788.

HAMILTON

To the People of the State of New York:
IT HAS been mentioned as one of the advantages to be expected
from the co-operation of the Senate, in the business of
appointments, that it would contribute to the stability of the
administration. The consent of that body would be necessary to
displace as well as to appoint. A change of the Chief Magistrate,
therefore, would not occasion so violent or so general a revolution
in the officers of the government as might be expected, if he were
the sole disposer of offices. Where a man in any station had given
satisfactory evidence of his fitness for it, a new President would
be restrained from attempting a change in favor of a person more
agreeable to him, by the apprehension that a discountenance of the
Senate might frustrate the attempt, and bring some degree of
discredit upon himself. Those who can best estimate the value of a
steady administration, will be most disposed to prize a provision
which connects the official existence of public men with the
approbation or disapprobation of that body which, from the greater
permanency of its own composition, will in all probability be less
subject to inconstancy than any other member of the government.
To this union of the Senate with the President, in the article
of appointments, it has in some cases been suggested that it would
serve to give the President an undue influence over the Senate, and
in others that it would have an opposite tendency, a strong proof
that neither suggestion is true.
To state the first in its proper form, is to refute it. It
amounts to this: the President would have an improper INFLUENCE
OVER the Senate, because the Senate would have the power of
RESTRAINING him. This is an absurdity in terms. It cannot admit of
a doubt that the entire power of appointment would enable him much
more effectually to establish a dangerous empire over that body,
than a mere power of nomination subject to their control.
Let us take a view of the converse of the proposition: “the
Senate would influence the Executive.” As I have had occasion to
remark in several other instances, the indistinctness of the
objection forbids a precise answer. In what manner is this
influence to be exerted? In relation to what objects? The power of
influencing a person, in the sense in which it is here used, must
imply a power of conferring a benefit upon him. How could the
Senate confer a benefit upon the President by the manner of
employing their right of negative upon his nominations? If it be
said they might sometimes gratify him by an acquiescence in a
favorite choice, when public motives might dictate a different
conduct, I answer, that the instances in which the President could
be personally interested in the result, would be too few to admit of
his being materially affected by the compliances of the Senate. The
POWER which can ORIGINATE the disposition of honors and emoluments,
is more likely to attract than to be attracted by the POWER which
can merely obstruct their course. If by influencing the President
be meant RESTRAINING him, this is precisely what must have been
intended. And it has been shown that the restraint would be
salutary, at the same time that it would not be such as to destroy a
single advantage to be looked for from the uncontrolled agency of
that Magistrate. The right of nomination would produce all the good
of that of appointment, and would in a great measure avoid its evils.
Upon a comparison of the plan for the appointment of the
officers of the proposed government with that which is established
by the constitution of this State, a decided preference must be
given to the former. In that plan the power of nomination is
unequivocally vested in the Executive. And as there would be a
necessity for submitting each nomination to the judgment of an
entire branch of the legislature, the circumstances attending an
appointment, from the mode of conducting it, would naturally become
matters of notoriety; and the public would be at no loss to
determine what part had been performed by the different actors. The
blame of a bad nomination would fall upon the President singly and
absolutely. The censure of rejecting a good one would lie entirely
at the door of the Senate; aggravated by the consideration of their
having counteracted the good intentions of the Executive. If an ill
appointment should be made, the Executive for nominating, and the
Senate for approving, would participate, though in different
degrees, in the opprobrium and disgrace.
The reverse of all this characterizes the manner of appointment
in this State. The council of appointment consists of from three to
five persons, of whom the governor is always one. This small body,
shut up in a private apartment, impenetrable to the public eye,
proceed to the execution of the trust committed to them. It is
known that the governor claims the right of nomination, upon the
strength of some ambiguous expressions in the constitution; but it
is not known to what extent, or in what manner he exercises it; nor
upon what occasions he is contradicted or opposed. The censure of a
bad appointment, on account of the uncertainty of its author, and
for want of a determinate object, has neither poignancy nor duration.
And while an unbounded field for cabal and intrigue lies open, all
idea of responsibility is lost. The most that the public can know,
is that the governor claims the right of nomination; that TWO out
of the inconsiderable number of FOUR men can too often be managed
without much difficulty; that if some of the members of a
particular council should happen to be of an uncomplying character,
it is frequently not impossible to get rid of their opposition by
regulating the times of meeting in such a manner as to render their
attendance inconvenient; and that from whatever cause it may
proceed, a great number of very improper appointments are from time
to time made. Whether a governor of this State avails himself of
the ascendant he must necessarily have, in this delicate 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,
unfortunately for the community, can only be the subjects of
speculation and conjecture.
Every mere council of appointment, however constituted, will be
a conclave, in which cabal and intrigue will have their full scope.
Their number, without an unwarrantable increase of expense, cannot
be large enough to preclude a facility of combination. And as each
member will have his friends and connections to provide for, the
desire of mutual gratification will beget a scandalous bartering of
votes and bargaining for places. The private attachments of one man
might easily be satisfied; but to satisfy the private attachments
of a dozen, or of twenty men, would occasion a monopoly of all the
principal employments of the government in a few families, and would
lead more directly to an aristocracy or an oligarchy than any
measure that could be contrived. If, to avoid an accumulation of
offices, there was to be a frequent change in the persons who were
to compose the council, this would involve the mischiefs of a
mutable administration in their full extent. Such a council would
also be more liable to executive influence than the Senate, because
they would be fewer in number, and would act less immediately under
the public inspection. Such a council, in fine, as a substitute for
the plan of the convention, would be productive of an increase of
expense, a multiplication of the evils which spring from favoritism
and intrigue in the distribution of public honors, a decrease of
stability in the administration of the government, and a diminution
of the security against an undue influence of the Executive. And
yet such a council has been warmly contended for as an essential
amendment in the proposed Constitution.
I could not with propriety conclude my observations on the
subject of appointments without taking notice of a scheme for which
there have appeared some, though but few advocates; I mean that of
uniting the House of Representatives in the power of making them. I
shall, however, do little more than mention it, as I cannot imagine
that it is likely to gain the countenance of any considerable part
of the community. A body so fluctuating and at the same time so
numerous, can never be deemed proper for the exercise of that power.
Its unfitness will appear manifest to all, when it is recollected
that in half a century it may consist of three or four hundred
persons. All the advantages of the stability, both of the Executive
and of the Senate, would be defeated by this union, and infinite
delays and embarrassments would be occasioned. The example of most
of the States in their local constitutions encourages us to
reprobate the idea.
The only remaining powers of the Executive are comprehended in
giving information to Congress of the state of the Union; in
recommending to their consideration such measures as he shall judge
expedient; in convening them, or either branch, upon extraordinary
occasions; in adjourning them when they cannot themselves agree
upon the time of adjournment; in receiving ambassadors and other
public ministers; in faithfully executing the laws; and in
commissioning all the officers of the United States.
Except some cavils about the power of convening EITHER house of
the legislature, and that of receiving ambassadors, no objection has
been made to this class of authorities; nor could they possibly
admit of any. It required, indeed, an insatiable avidity for
censure to invent exceptions to the parts which have been excepted
to. In regard to the power of convening either house of the
legislature, I shall barely remark, that in respect to the Senate at
least, we can readily discover a good reason for it. AS this body
has a concurrent power with the Executive in the article of
treaties, it might often be necessary to call it together with a
view to this object, when it would be unnecessary and improper to
convene the House of Representatives. As to the reception of
ambassadors, what I have said in a former paper will furnish a
sufficient answer.
We have now completed a survey of the structure and powers of
the executive department, which, I have endeavored to show,
combines, as far as republican principles will admit, all the
requisites to energy. The remaining inquiry is: Does it also
combine the requisites to safety, in a republican sense, a due
dependence on the people, a due responsibility? The answer to this
question has been anticipated in the investigation of its other
characteristics, and is satisfactorily deducible from these
circumstances; from the election of the President once in four
years by persons immediately chosen by the people for that purpose;
and from his being at all times liable to impeachment, trial,
dismission from office, incapacity to serve in any other, and to
forfeiture of life and estate by subsequent prosecution in the
common course of law. But these precautions, great as they are, are
not the only ones which the plan of the convention has provided in
favor of the public security. In the only instances in which the
abuse of the executive authority was materially to be feared, the
Chief Magistrate of the United States would, by that plan, be
subjected to the control of a branch of the legislative body. What
more could be desired by an enlightened and reasonable people?
PUBLIUS

 

FEDERALIST No. 78

The Judiciary Department
From McLEAN’S Edition, New York.

HAMILTON

To the People of the State of New York:
WE PROCEED now to an examination of the judiciary department of
the proposed government.
In unfolding the defects of the existing Confederation, the
utility and necessity of a federal judicature have been clearly
pointed out. It is the less necessary to recapitulate the
considerations there urged, as the propriety of the institution in
the abstract is not disputed; the only questions which have been
raised being relative to the manner of constituting it, and to its
extent. To these points, therefore, our observations shall be
confined.
The manner of constituting it seems to embrace these several
objects: 1st. The mode of appointing the judges. 2d. The tenure by
which they are to hold their places. 3d. The partition of the
judiciary authority between different courts, and their relations to
each other.
First. As to the mode of appointing the judges; this is
the same with that of appointing the officers of the Union in
general, and has been so fully discussed in the two last numbers,
that nothing can be said here which would not be useless repetition.
Second. As to the tenure by which the judges are to hold
their places; this chiefly concerns their duration in office; the
provisions for their support; the precautions for their
responsibility.
According to the plan of the convention, all judges who may be
appointed by the United States are to hold their offices DURING GOOD
BEHAVIOR; which is conformable to the most approved of the State
constitutions and among the rest, to that of this State. Its
propriety having been drawn into question by the adversaries of that
plan, is no light symptom of the rage for objection, which disorders
their imaginations and judgments. The standard of good behavior for
the continuance in office of the judicial magistracy, is certainly
one of the most valuable of the modern improvements in the practice
of government. In a monarchy it is an excellent barrier to the
despotism of the prince; in a republic it is a no less excellent
barrier to the encroachments and oppressions of the representative
body. And it is the best expedient which can be devised in any
government, to secure a steady, upright, and impartial
administration of the laws.
Whoever attentively considers the different departments of power
must perceive, that, in a government in which they are separated
from each other, the judiciary, from the nature of its functions,
will always be the least dangerous to the political rights of the
Constitution; because it will be least in a capacity to annoy or
injure them. The Executive not only dispenses the honors, but holds
the sword of the community. The legislature not only commands the
purse, but prescribes the rules by which the duties and rights of
every citizen are to be regulated. The judiciary, on the contrary,
has no influence over either the sword or the purse; no direction
either of the strength or of the wealth of the society; and can
take no active resolution whatever. It may truly be said to have
neither FORCE nor WILL, but merely judgment; and must ultimately
depend upon the aid of the executive arm even for the efficacy of
its judgments.
This simple view of the matter suggests several important
consequences. It proves incontestably, that the judiciary is beyond
comparison the weakest of the three departments of power1; that
it can never attack with success either of the other two; and that
all possible care is requisite to enable it to defend itself against
their attacks. It equally proves, that though individual oppression
may now and then proceed from the courts of justice, the general
liberty of the people can never be endangered from that quarter; I
mean so long as the judiciary remains truly distinct from both the
legislature and the Executive. For I agree, that “there is no
liberty, if the power of judging be not separated from the
legislative and executive powers.”2 And it proves, in the last
place, that as liberty can have nothing to fear from the judiciary
alone, but would have every thing to fear from its union with either
of the other departments; that as all the effects of such a union
must ensue from a dependence of the former on the latter,
notwithstanding a nominal and apparent separation; that as, from
the natural feebleness of the judiciary, it is in continual jeopardy
of being overpowered, awed, or influenced by its co-ordinate
branches; and that as nothing can contribute so much to its
firmness and independence as permanency in office, this quality may
therefore be justly regarded as an indispensable ingredient in its
constitution, and, in a great measure, as the citadel of the public
justice and the public security.
The complete independence of the courts of justice is peculiarly
essential in a limited Constitution. By a limited Constitution, I
understand one which contains certain specified exceptions to the
legislative authority; such, for instance, as that it shall pass no
bills of attainder, no ex-post-facto laws, and the like.
Limitations of this kind can be preserved in practice no other way
than through the medium of courts of justice, whose duty it must be
to declare all acts contrary to the manifest tenor of the
Constitution void. Without this, all the reservations of particular
rights or privileges would amount to nothing.
Some perplexity respecting the rights of the courts to pronounce
legislative acts void, because contrary to the Constitution, has
arisen from an imagination that the doctrine would imply a
superiority of the judiciary to the legislative power. It is urged
that the authority which can declare the acts of another void, must
necessarily be superior to the one whose acts may be declared void.
As this doctrine is of great importance in all the American
constitutions, a brief discussion of the ground on which it rests
cannot be unacceptable.
There is no position which depends on clearer principles, than
that every act of a delegated authority, contrary to the tenor of
the commission under which it is exercised, is void. No legislative
act, therefore, contrary to the Constitution, can be valid. To deny
this, would be to affirm, that the deputy is greater than his
principal; that the servant is above his master; that the
representatives of the people are superior to the people themselves;
that men acting by virtue of powers, may do not only what their
powers do not authorize, but what they forbid.
If it be said that the legislative body are themselves the
constitutional judges of their own powers, and that the construction
they put upon them is conclusive upon the other departments, it may
be answered, that this cannot be the natural presumption, where it
is not to be collected from any particular provisions in the
Constitution. It is not otherwise to be supposed, that the
Constitution could intend to enable the representatives of the
people to substitute their WILL to that of their constituents. It
is far more rational to suppose, that the courts were designed to be
an intermediate body between the people and the legislature, in
order, among other things, to keep the latter within the limits
assigned to their authority. The interpretation of the laws is the
proper and peculiar province of the courts. A constitution is, in
fact, and must be regarded by the judges, as a fundamental law. It
therefore belongs to them to ascertain its meaning, as well as the
meaning of any particular act proceeding from the legislative body.
If there should happen to be an irreconcilable variance between the
two, that which has the superior obligation and validity ought, of
course, to be preferred; or, in other words, the Constitution ought
to be preferred to the statute, the intention of the people to the
intention of their agents.
Nor does this conclusion by any means suppose a superiority of
the judicial to the legislative power. It only supposes that the
power of the people is superior to both; and that where the will of
the legislature, declared in its statutes, stands in opposition to
that of the people, declared in the Constitution, the judges ought
to be governed by the latter rather than the former. They ought to
regulate their decisions by the fundamental laws, rather than by
those which are not fundamental.
This exercise of judicial discretion, in determining between two
contradictory laws, is exemplified in a familiar instance. It not
uncommonly happens, that there are two statutes existing at one
time, clashing in whole or in part with each other, and neither of
them containing any repealing clause or expression. In such a case,
it is the province of the courts to liquidate and fix their meaning
and operation. So far as they can, by any fair construction, be
reconciled to each other, reason and law conspire to dictate that
this should be done; where this is impracticable, it becomes a
matter of necessity to give effect to one, in exclusion of the other.
The rule which has obtained in the courts for determining their
relative validity is, that the last in order of time shall be
preferred to the first. But this is a mere rule of construction,
not derived from any positive law, but from the nature and reason of
the thing. It is a rule not enjoined upon the courts by legislative
provision, but adopted by themselves, as consonant to truth and
propriety, for the direction of their conduct as interpreters of the
law. They thought it reasonable, that between the interfering acts
of an EQUAL authority, that which was the last indication of its
will should have the preference.
But in regard to the interfering acts of a superior and
subordinate authority, of an original and derivative power, the
nature and reason of the thing indicate the converse of that rule as
proper to be followed. They teach us that the prior act of a
superior ought to be preferred to the subsequent act of an inferior
and subordinate authority; and that accordingly, whenever a
particular statute contravenes the Constitution, it will be the duty
of the judicial tribunals to adhere to the latter and disregard the
former.
It can be of no weight to say that the courts, on the pretense
of a repugnancy, may substitute their own pleasure to the
constitutional intentions of the legislature. This might as well
happen in the case of two contradictory statutes; or it might as
well happen in every adjudication upon any single statute. The
courts must declare the sense of the law; and if they should be
disposed to exercise WILL instead of JUDGMENT, the consequence would
equally be the substitution of their pleasure to that of the
legislative body. The observation, if it prove any thing, would
prove that there ought to be no judges distinct from that body.
If, then, the courts of justice are to be considered as the
bulwarks of a limited Constitution against legislative
encroachments, this consideration will afford a strong argument for
the permanent tenure of judicial offices, since nothing will
contribute so much as this to that independent spirit in the judges
which must be essential to the faithful performance of so arduous a
duty.
This independence of the judges is equally requisite to guard
the Constitution and the rights of individuals from the effects of
those ill humors, which the arts of designing men, or the influence
of particular conjunctures, sometimes disseminate among the people
themselves, and which, though they speedily give place to better
information, and more deliberate reflection, have a tendency, in the
meantime, to occasion dangerous innovations in the government, and
serious oppressions of the minor party in the community. Though I
trust the friends of the proposed Constitution will never concur
with its enemies,3 in questioning that fundamental principle of
republican government, which admits the right of the people to alter
or abolish the established Constitution, whenever they find it
inconsistent with their happiness, yet it is not to be inferred from
this principle, that the representatives of the people, whenever a
momentary inclination happens to lay hold of a majority of their
constituents, incompatible with the provisions in the existing
Constitution, would, on that account, be justifiable in a violation
of those provisions; or that the courts would be under a greater
obligation to connive at infractions in this shape, than when they
had proceeded wholly from the cabals of the representative body.
Until the people have, by some solemn and authoritative act,
annulled or changed the established form, it is binding upon
themselves collectively, as well as individually; and no
presumption, or even knowledge, of their sentiments, can warrant
their representatives in a departure from it, prior to such an act.
But it is easy to see, that it would require an uncommon portion of
fortitude in the judges to do their duty as faithful guardians of
the Constitution, where legislative invasions of it had been
instigated by the major voice of the community.
But it is not with a view to infractions of the Constitution
only, that the independence of the judges may be an essential
safeguard against the effects of occasional ill humors in the
society. These sometimes extend no farther than to the injury of
the private rights of particular classes of citizens, by unjust and
partial laws. Here also the firmness of the judicial magistracy is
of vast importance in mitigating the severity and confining the
operation of such laws. It not only serves to moderate the
immediate mischiefs of those which may have been passed, but it
operates as a check upon the legislative body in passing them; who,
perceiving that obstacles to the success of iniquitous intention are
to be expected from the scruples of the courts, are in a manner
compelled, by the very motives of the injustice they meditate, to
qualify their attempts. This is a circumstance calculated to have
more influence upon the character of our governments, than but few
may be aware of. The benefits of the integrity and moderation of
the judiciary have already been felt in more States than one; and
though they may have displeased those whose sinister expectations
they may have disappointed, they must have commanded the esteem and
applause of all the virtuous and disinterested. Considerate men, of
every description, ought to prize whatever will tend to beget or
fortify that temper in the courts: as no man can be sure that he
may not be to-morrow the victim of a spirit of injustice, by which
he may be a gainer to-day. And every man must now feel, that the
inevitable tendency of such a spirit is to sap the foundations of
public and private confidence, and to introduce in its stead
universal distrust and distress.
That inflexible and uniform adherence to the rights of the
Constitution, and of individuals, which we perceive to be
indispensable in the courts of justice, can certainly not be
expected from judges who hold their offices by a temporary
commission. Periodical appointments, however regulated, or by
whomsoever made, would, in some way or other, be fatal to their
necessary independence. If the power of making them was committed
either to the Executive or legislature, there would be danger of an
improper complaisance to the branch which possessed it; if to both,
there would be an unwillingness to hazard the displeasure of either;
if to the people, or to persons chosen by them for the special
purpose, there would be too great a disposition to consult
popularity, to justify a reliance that nothing would be consulted
but the Constitution and the laws.
There is yet a further and a weightier reason for the permanency
of the judicial offices, which is deducible from the nature of the
qualifications they require. It has been frequently remarked, with
great propriety, that a voluminous code of laws is one of the
inconveniences necessarily connected with the advantages of a free
government. To avoid an arbitrary discretion in the courts, it is
indispensable that they should be bound down by strict rules and
precedents, which serve to define and point out their duty in every
particular case that comes before them; and it will readily be
conceived from the variety of controversies which grow out of the
folly and wickedness of mankind, that the records of those
precedents must unavoidably swell to a very considerable bulk, and
must demand long and laborious study to acquire a competent
knowledge of them. Hence it is, that there can be but few men in
the society who will have sufficient skill in the laws to qualify
them for the stations of judges. And making the proper deductions
for the ordinary depravity of human nature, the number must be still
smaller of those who unite the requisite integrity with the
requisite knowledge. These considerations apprise us, that the
government can have no great option between fit character; and that
a temporary duration in office, which would naturally discourage
such characters from quitting a lucrative line of practice to accept
a seat on the bench, would have a tendency to throw the
administration of justice into hands less able, and less well
qualified, to conduct it with utility and dignity. In the present
circumstances of this country, and in those in which it is likely to
be for a long time to come, the disadvantages on this score would be
greater than they may at first sight appear; but it must be
confessed, that they are far inferior to those which present
themselves under the other aspects of the subject.
Upon the whole, there can be no room to doubt that the
convention acted wisely in copying from the models of those
constitutions which have established GOOD BEHAVIOR as the tenure of
their judicial offices, in point of duration; and that so far from
being blamable on this account, their plan would have been
inexcusably defective, if it had wanted this important feature of
good government. The experience of Great Britain affords an
illustrious comment on the excellence of the institution.
PUBLIUS.
1 The celebrated Montesquieu, speaking of them, says: “Of the
three powers above mentioned, the judiciary is next to
nothing.” “Spirit of Laws.” vol. i., page 186.
2 Idem, page 181.
3 Vide “Protest of the Minority of the Convention of
Pennsylvania,” Martin’s Speech, etc.

 

FEDERALIST No. 79

The Judiciary Continued
From MCLEAN’s Edition, New York.

HAMILTON

To the People of the State of New York:
NEXT to permanency in office, nothing can contribute more to the
independence of the judges than a fixed provision for their support.
The remark made in relation to the President is equally applicable
here. In the general course of human nature, A POWER OVER A MAN’s
SUBSISTENCE AMOUNTS TO A POWER OVER HIS WILL. And we can never hope
to see realized in practice, the complete separation of the judicial
from the legislative power, in any system which leaves the former
dependent for pecuniary resources on the occasional grants of the
latter. The enlightened friends to good government in every State,
have seen cause to lament the want of precise and explicit
precautions in the State constitutions on this head. Some of these
indeed have declared that PERMANENT1 salaries should be
established for the judges; but the experiment has in some
instances shown that such expressions are not sufficiently definite
to preclude legislative evasions. Something still more positive and
unequivocal has been evinced to be requisite. The plan of the
convention accordingly has provided that the judges of the United
States “shall at STATED TIMES receive for their services a
compensation which shall not be DIMINISHED during their continuance
in office.”
This, all circumstances considered, is the most eligible
provision that could have been devised. It will readily be
understood that the fluctuations in the value of money and in the
state of society rendered a fixed rate of compensation in the
Constitution inadmissible. What might be extravagant 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 officers may from time to time
be altered, as occasion shall require, yet so as never to lessen the
allowance with which any particular judge comes into office, in
respect to him. It will be observed that a difference has been made
by the convention between the compensation of the President and of
the judges, That of the former can neither be increased nor
diminished; that of the latter can only not be diminished. This
probably arose from the difference in the duration of the respective
offices. As the President is to be elected for no more than four
years, it can rarely happen that an adequate salary, fixed at the
commencement of that period, will not continue to be such to its end.
But with regard to the judges, who, if they behave properly, will
be secured in their places for life, it may well happen, especially
in the early stages of the government, that a stipend, which would
be very sufficient at their first appointment, would become too
small in the progress of their service.
This provision for the support of the judges bears every mark of
prudence and efficacy; and it may be safely affirmed that, together
with the permanent tenure of their offices, it affords a better
prospect of their independence than is discoverable in the
constitutions of any of the States in regard to their own judges.
The precautions for their responsibility are comprised in the
article respecting impeachments. They are liable to be impeached
for malconduct by the House of Representatives, and tried by the
Senate; and, if convicted, may be dismissed from office, and
disqualified for holding any other. This is the only provision on
the point which is consistent with the necessary independence of the
judicial character, and is the only one which we find in our own
Constitution in respect to our own judges.
The want of a provision for removing the judges on account of
inability has been a subject of complaint. But all considerate men
will be sensible that such a provision would either not be practiced
upon or would be more liable to abuse than calculated to answer any
good purpose. The mensuration of the faculties of the mind has, I
believe, no place in the catalogue of known arts. An attempt to fix
the boundary between the regions of ability and inability, would
much oftener give scope to personal and party attachments and
enmities than advance the interests of justice or the public good.
The result, except in the case of insanity, must for the most part
be arbitrary; and insanity, without any formal or express
provision, may be safely pronounced to be a virtual disqualification.
The constitution of New York, to avoid investigations that must
forever be vague and dangerous, has taken a particular age as the
criterion of inability. No man can be a judge beyond sixty. I
believe there are few at present who do not disapprove of this
provision. There is no station, in relation to which it is less
proper than to that of a judge. The deliberating and comparing
faculties generally preserve their strength much beyond that period
in men who survive it; and when, in addition to this circumstance,
we consider how few there are who outlive the season of intellectual
vigor, and how improbable it is that any considerable portion of the
bench, whether more or less numerous, should be in such a situation
at the same time, we shall be ready to conclude that limitations of
this sort have little to recommend them. In a republic, where
fortunes are not affluent, and pensions not expedient, the
dismission of men from stations in which they have served their
country long and usefully, on which they depend for subsistence, and
from which it will be too late to resort to any other occupation for
a livelihood, ought to have some better apology to humanity than is
to be found in the imaginary danger of a superannuated bench.
PUBLIUS.
1 Vide “Constitution of Massachusetts,” chapter 2, section
I, article 13.

 

FEDERALIST No. 80

The Powers of the Judiciary
From McLEAN’s Edition, New York.

HAMILTON

To the People of the State of New York:
To JUDGE with accuracy of the proper extent of the federal
judicature, it will be necessary to consider, in the first place,
what are its proper objects.
It seems scarcely to admit of controversy, that the judicary
authority of the Union ought to extend to these several descriptions
of cases: 1st, to all those which arise out of the laws of the
United States, passed in pursuance of their just and constitutional
powers of legislation; 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 jurisdiction; and, lastly, to all those in which the State
tribunals cannot be supposed to be impartial and unbiased.
The first point depends upon this obvious consideration, that
there ought always to be a constitutional method of giving efficacy
to constitutional provisions. What, for instance, would avail
restrictions on the authority of the State legislatures, without
some constitutional mode of enforcing the observance of them? The
States, by the plan of the convention, are prohibited from doing a
variety of things, some of which are incompatible with the interests
of the Union, and others with the principles of good government.
The imposition of duties on imported articles, and the emission of
paper money, are specimens of each kind. No man of sense will
believe, that such prohibitions would be scrupulously regarded,
without some effectual power in the government to restrain or
correct the infractions of them. This power must either be a direct
negative on the State laws, or an authority in the federal courts to
overrule such as might be in manifest contravention of the articles
of Union. There is no third course that I can imagine. The latter
appears to have been thought by the convention preferable to the
former, and, I presume, will be most agreeable to the States.
As to the second point, it is impossible, by any argument or
comment, to make it clearer than it is in itself. If there are such
things as political axioms, the propriety of the judicial power of a
government being coextensive with its legislative, may be ranked
among the number. The mere necessity of uniformity in the
interpretation of the national laws, decides the question. Thirteen
independent courts of final jurisdiction over the same causes,
arising upon the same laws, is a hydra in government, from which
nothing but contradiction and confusion can proceed.
Still less need be said in regard to the third point.
Controversies between the nation and its members or citizens, can
only be properly referred to the national tribunals. Any other plan
would be contrary to reason, to precedent, and to decorum.
The fourth point rests on this plain proposition, that the peace
of the WHOLE ought not to be left at the disposal of a PART. The
Union will undoubtedly be answerable to foreign powers for the
conduct of its members. And the responsibility for an injury ought
ever to be accompanied with the faculty of preventing it. As the
denial or perversion of justice by the sentences of courts, as well
as in any other manner, is with reason classed among the just causes
of war, it will follow that the federal judiciary ought to have
cognizance of all causes in which the citizens of other countries
are concerned. This is not less essential to the preservation of
the public faith, than to the security of the public tranquillity.
A distinction may perhaps be imagined between cases arising upon
treaties and the laws of nations and those which may stand merely on
the footing of the municipal law. The former kind may be supposed
proper for the federal jurisdiction, the latter for that of the
States. But it is at least problematical, whether an unjust
sentence against a foreigner, where the subject of controversy was
wholly relative to the lex loci, would not, if unredressed, be
an aggression upon his sovereign, as well as one which violated the
stipulations of a treaty or the general law of nations. And a still
greater objection to the distinction would result from the immense
difficulty, if not impossibility, of a practical discrimination
between the cases of one complexion and those of the other. So
great a proportion of the cases in which foreigners are parties,
involve national questions, that it is by far most safe and most
expedient to refer all those in which they are concerned to the
national tribunals.
The power of determining causes between two States, between one
State and the citizens of another, and between the citizens of
different States, is perhaps not less essential to the peace of the
Union than that which has been just examined. History gives us a
horrid picture of the dissensions and private wars which distracted
and desolated Germany prior to the institution of the Imperial
Chamber by Maximilian, towards the close of the fifteenth century;
and informs us, at the same time, of the vast influence of that
institution in appeasing the disorders and establishing the
tranquillity of the empire. This was a court invested with
authority to decide finally all differences among the members of the
Germanic body.
A method of terminating territorial disputes between the States,
under the authority of the federal head, was not unattended to, even
in the imperfect system by which they have been hitherto held
together. But there are many other sources, besides interfering
claims of boundary, from which bickerings and animosities may spring
up among the members of the Union. To some of these we have been
witnesses in the course of our past experience. It will readily be
conjectured that I allude to the fraudulent laws which have been
passed in too many of the States. And though the proposed
Constitution establishes particular guards against the repetition of
those instances which have heretofore made their appearance, yet it
is warrantable to apprehend that the spirit which produced them will
assume new shapes, that could not be foreseen nor specifically
provided against. Whatever practices may have a tendency to disturb
the harmony between the States, are proper objects of federal
superintendence and control.
It may be esteemed the basis of the Union, that “the citizens
of each State shall be entitled to all the privileges and immunities
of citizens of the several States.” And if it be a just principle
that every government OUGHT TO POSSESS THE MEANS OF EXECUTING ITS
OWN PROVISIONS BY ITS OWN AUTHORITY, it will follow, that in order
to the inviolable maintenance of that equality of privileges and
immunities to which the citizens of the Union will be entitled, the
national judiciary ought to preside in all cases in which one State
or its citizens are opposed to another State or its citizens. To
secure the full effect of so fundamental a provision against all
evasion and subterfuge, it is necessary that its construction should
be committed to that tribunal which, having no local attachments,
will be likely to be impartial between the different States and
their citizens, and which, owing its official existence to the
Union, will never be likely to feel any bias inauspicious to the
principles on which it is founded.
The fifth point will demand little animadversion. The most
bigoted idolizers of State authority have not thus far shown a
disposition to deny the national judiciary the cognizances of
maritime causes. These so generally depend on the laws of nations,
and so commonly affect the rights of foreigners, that they fall
within the considerations which are relative to the public peace.
The most important part of them are, by the present Confederation,
submitted to federal jurisdiction.
The reasonableness of the agency of the national courts in cases
in which the State tribunals cannot be supposed to be impartial,
speaks for itself. No man ought certainly to be a judge in his own
cause, or in any cause in respect to which he has the least interest
or bias. This principle has no inconsiderable weight in designating
the federal courts as the proper tribunals for the determination of
controversies between different States and their citizens. And it
ought to have the same operation in regard to some cases between
citizens of the same State. Claims to land under grants of
different States, founded upon adverse pretensions of boundary, are
of this description. The courts of neither of the granting States
could be expected to be unbiased. The laws may have even prejudged
the question, and tied the courts down to decisions in favor of the
grants of the State to which they belonged. And even where this had
not been done, it would be natural that the judges, as men, should
feel a strong predilection to the claims of their own government.
Having thus laid down and discussed the principles which ought
to regulate the constitution of the federal judiciary, we will
proceed to test, by these principles, the particular powers of
which, according to the plan of the convention, it is to be composed.
It is to comprehend “all cases in law and equity arising under
the Constitution, the laws of the United States, and treaties made,
or which shall be made, under their authority; to all cases
affecting ambassadors, other public ministers, and consuls; to all
cases of admiralty and maritime jurisdiction; to controversies to
which the United States shall be a party; to controversies between
two or more States; between a State and citizens of another State;
between citizens of different States; between citizens of the same
State claiming lands and grants of different States; and between a
State or the citizens thereof and foreign states, citizens, and
subjects.” This constitutes the entire mass of the judicial
authority of the Union. Let us now review it in detail. It is,
then, to extend:
First. To all cases in law and equity, ARISING UNDER THE
CONSTITUTION and THE LAWS OF THE UNITED STATES. This corresponds
with the two first classes of causes, which have been enumerated, as
proper for the jurisdiction of the United States. It has been
asked, what is meant by “cases arising under the Constitution,” in
contradiction from those “arising under the laws of the United
States”? The difference has been already explained. All the
restrictions upon the authority of the State legislatures furnish
examples of it. They are not, for instance, to emit paper money;
but the interdiction results from the Constitution, and will have
no connection with any law of the United States. Should paper
money, notwithstanding, be emited, the controversies concerning it
would be cases arising under the Constitution and not the laws of
the United States, in the ordinary signification of the terms. This
may serve as a sample of the whole.
It has also been asked, what need of the word “equity What
equitable causes can grow out of the Constitution and laws of the
United States? There is hardly a subject of litigation between
individuals, which may not involve those ingredients of FRAUD,
ACCIDENT, TRUST, or HARDSHIP, which would render the matter an
object of equitable rather than of legal jurisdiction, as the
distinction is known and established in several of the States. It
is the peculiar province, for instance, of a court of equity to
relieve against what are called hard bargains: these are contracts
in which, though there may have been no direct fraud or deceit,
sufficient to invalidate them in a court of law, yet there may have
been some undue and unconscionable advantage taken of the
necessities or misfortunes of one of the parties, which a court of
equity would not tolerate. In such cases, where foreigners were
concerned on either side, it would be impossible for the federal
judicatories to do justice without an equitable as well as a legal
jurisdiction. Agreements to convey lands claimed under the grants
of different States, may afford another example of the necessity of
an equitable jurisdiction in the federal courts. This reasoning may
not be so palpable in those States where the formal and technical
distinction between LAW and EQUITY is not maintained, as in this
State, where it is exemplified by every day’s practice.
The judiciary authority of the Union is to extend:
Second. To treaties made, or which shall be made, under the
authority of the United States, and to all cases affecting
ambassadors, other public ministers, and consuls. These belong to
the fourth class of the enumerated cases, as they have an evident
connection with the preservation of the national peace.
Third. To cases of admiralty and maritime jurisdiction.
These form, altogether, the fifth of the enumerated classes of
causes proper for the cognizance of the national courts.
Fourth. To controversies to which the United States shall be
a party. These constitute the third of those classes.
Fifth. To controversies between two or more States; between
a State and citizens of another State; between citizens of
different States. These belong to the fourth of those classes, and
partake, in some measure, of the nature of the last.
Sixth. To cases between the citizens of the same State,
CLAIMING LANDS UNDER GRANTS OF DIFFERENT STATES. These fall within
the last class, and ARE THE ONLY INSTANCES IN WHICH THE PROPOSED
CONSTITUTION DIRECTLY CONTEMPLATES THE COGNIZANCE OF DISPUTES
BETWEEN THE CITIZENS OF THE SAME STATE.
Seventh. To cases between a State and the citizens thereof,
and foreign States, citizens, or subjects. These have been already
explained to belong to the fourth of the enumerated classes, and
have been shown to be, in a peculiar manner, the proper subjects of
the national judicature.
From this review of the particular powers of the federal
judiciary, as marked out in the Constitution, it appears that they
are all conformable to the principles which ought to have governed
the structure of that department, and which were necessary to the
perfection of the system. If some partial inconviences should
appear to be connected with the incorporation of any of them into
the plan, it ought to be recollected that the national legislature
will have ample authority to make such EXCEPTIONS, and to prescribe
such regulations as will be calculated to obviate or remove these
inconveniences. The possibility of particular mischiefs can never
be viewed, by a wellinformed mind, as a solid objection to a general
principle, which is calculated to avoid general mischiefs and to
obtain general advantages.
PUBLIUS

 

FEDERALIST. No. 81

The Judiciary Continued, and the Distribution of the Judicial
Authority
From McLEAN’s Edition, New York.

HAMILTON

To the People of the State of New York:
LET US now return to the partition of the judiciary authority
between different courts, and their relations to each other,
“The judicial power of the United States is” (by the plan of
the convention) “to be vested in one Supreme Court, and in such
inferior courts as the Congress may, from time to time, ordain and
establish.”1
That there ought to be one court of supreme and final
jurisdiction, is a proposition which is not likely to be contested.
The reasons for it have been assigned in another place, and are too
obvious to need repetition. The only question that seems to have
been raised concerning it, is, whether it ought to be a distinct
body or a branch of the legislature. The same contradiction is
observable in regard to this matter which has been remarked in
several other cases. The very men who object to the Senate as a
court of impeachments, on the ground of an improper intermixture of
powers, advocate, by implication at least, the propriety of vesting
the ultimate decision of all causes, in the whole or in a part of
the legislative body.
The arguments, or rather suggestions, upon which this charge is
founded, are to this effect: “The authority of the proposed
Supreme Court of the United States, which is to be a separate and
independent body, will be superior to that of the legislature. The
power of construing the laws according to the SPIRIT of the
Constitution, will enable that court to mould them into whatever
shape it may think proper; especially as its decisions will not be
in any manner subject to the revision or correction of the
legislative body. This is as unprecedented as it is dangerous. In
Britain, the judical power, in the last resort, resides in the House
of Lords, which is a branch of the legislature; and this part of
the British government has been imitated in the State constitutions
in general. The Parliament of Great Britain, and the legislatures
of the several States, can at any time rectify, by law, the
exceptionable decisions of their respective courts. But the errors
and usurpations of the Supreme Court of the United States will be
uncontrollable and remediless.” This, upon examination, will be
found to be made up altogether of false reasoning upon misconceived
fact.
In the first place, there is not a syllable in the plan under
consideration which DIRECTLY empowers the national courts to
construe the laws according to the spirit of the Constitution, or
which gives them any greater latitude in this respect than may be
claimed by the courts of every State. I admit, however, that the
Constitution ought to be the standard of construction for the laws,
and that wherever there is an evident opposition, the laws ought to
give place to the Constitution. But this doctrine is not deducible
from any circumstance peculiar to the plan of the convention, but
from the general theory of a limited Constitution; and as far as it
is true, is equally applicable to most, if not to all the State
governments. There can be no objection, therefore, on this account,
to the federal judicature which will not lie against the local
judicatures in general, and which will not serve to condemn every
constitution that attempts to set bounds to legislative discretion.
But perhaps the force of the objection may be thought to consist
in the particular organization of the Supreme Court; in its being
composed of a distinct body of magistrates, instead of being one of
the branches of the legislature, as in the government of Great
Britain and that of the State. To insist upon this point, the
authors of the objection must renounce the meaning they have labored
to annex to the celebrated maxim, requiring a separation of the
departments of power. It shall, nevertheless, be conceded to them,
agreeably to the interpretation given to that maxim in the course of
these papers, that it is not violated by vesting the ultimate power
of judging in a PART of the legislative body. But though this be
not an absolute violation of that excellent rule, yet it verges so
nearly upon it, as on this account alone to be less eligible than
the mode preferred by the convention. From a body which had even a
partial agency in passing bad laws, we could rarely expect a
disposition to temper and moderate them in the application. The
same spirit which had operated in making them, would be too apt in
interpreting them; still less could it be expected that men who had
infringed the Constitution in the character of legislators, would be
disposed to repair the breach in the character of judges. Nor is
this all. Every reason which recommends the tenure of good behavior
for judicial offices, militates against placing the judiciary power,
in the last resort, in a body composed of men chosen for a limited
period. There is an absurdity in referring the determination of
causes, in the first instance, to judges of permanent standing; in
the last, to those of a temporary and mutable constitution. And
there is a still greater absurdity in subjecting the decisions of
men, selected for their knowledge of the laws, acquired by long and
laborious study, to the revision and control of men who, for want of
the same advantage, cannot but be deficient in that knowledge. The
members of the legislature will rarely be chosen with a view to
those qualifications which fit men for the stations of judges; and
as, on this account, there will be great reason to apprehend all the
ill consequences of defective information, so, on account of the
natural propensity of such bodies to party divisions, there will be
no less reason to fear that the pestilential breath of faction may
poison the fountains of justice. The habit of being continually
marshalled on opposite sides will be too apt to stifle the voice
both of law and of equity.
These considerations teach us to applaud the wisdom of those
States who have committed the judicial power, in the last resort,
not to a part of the legislature, but to distinct and independent
bodies of men. Contrary to the supposition of those who have
represented the plan of the convention, in this respect, as novel
and unprecedented, it is but a copy of the constitutions of New
Hampshire, Massachusetts, Pennsylvania, Delaware, Maryland,
Virginia, North Carolina, South Carolina, and Georgia; and the
preference which has been given to those models is highly to be
commended.
It is not true, in the second place, that the Parliament of
Great Britain, or the legislatures of the particular States, can
rectify the exceptionable decisions of their respective courts, in
any other sense than might be done by a future legislature of the
United States. The theory, neither of the British, nor the State
constitutions, authorizes the revisal of a judicial sentence by a
legislative act. Nor is there any thing in the proposed
Constitution, more than in either of them, by which it is forbidden.
In the former, as well as in the latter, the impropriety of the
thing, on the general principles of law and reason, is the sole
obstacle. A legislature, without exceeding 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 supposed danger of
judiciary encroachments on the legislative authority, which has been
upon many occasions reiterated, is in reality a phantom. Particular
misconstructions and contraventions of the will of the legislature
may now and then happen; but they can never be so extensive as to
amount to an inconvenience, or in any sensible degree to affect the
order of the political system. This may be inferred with certainty,
from the general nature of the judicial power, from the objects to
which it relates, from the manner in which it is exercised, from its
comparative weakness, and from its total incapacity to support its
usurpations by force. And the inference is greatly fortified by the
consideration of the important constitutional check which the power
of instituting impeachments in one part of the legislative body, and
of determining upon them in the other, would give to that body upon
the members of the judicial department. This is alone a complete
security. There never can be danger that the judges, by a series of
deliberate usurpations on the authority of the legislature, would
hazard the united resentment of the body intrusted with it, while
this body was possessed of the means of punishing their presumption,
by degrading them from their stations. While this ought to remove
all apprehensions on the subject, it affords, at the same time, a
cogent argument for constituting the Senate a court for the trial of
impeachments.
Having now examined, and, I trust, removed the objections to the
distinct and independent organization of the Supreme Court, I
proceed to consider the propriety of the power of constituting
inferior courts,2 and the relations which will subsist between
these and the former.
The power of constituting inferior courts is evidently
calculated to obviate the necessity of having recourse to the
Supreme Court in every case of federal cognizance. It is intended
to enable the national government to institute or AUTHORUZE, in each
State or district of the United States, a tribunal competent to the
determination of matters of national jurisdiction within its limits.
But why, it is asked, might not the same purpose have been
accomplished by the instrumentality of the State courts? This
admits of different answers. Though the fitness and competency of
those courts should be allowed in the utmost latitude, yet the
substance of the power in question may still be regarded as a
necessary part of the plan, if it were only to empower the national
legislature to commit to them the cognizance of causes arising out
of the national Constitution. To confer the power of determining
such causes upon the existing courts of the several States, would
perhaps be as much “to constitute tribunals,” as to create new
courts with the like power. But ought not a more direct and
explicit provision to have been made in favor of the State courts?
There are, in my opinion, substantial reasons against such a
provision: the most discerning cannot foresee how far the
prevalency of a local spirit may be found to disqualify the local
tribunals for the jurisdiction of national causes; whilst every man
may discover, that courts constituted like those of some of the
States would be improper channels of the judicial authority of the
Union. State judges, holding their offices during pleasure, or from
year to year, will be too little independent to be relied upon for
an inflexible execution of the national laws. And if there was a
necessity for confiding the original cognizance of causes arising
under those laws to them there would be a correspondent necessity
for leaving the door of appeal as wide as possible. In proportion
to the grounds of confidence in, or distrust of, the subordinate
tribunals, ought to be the facility or difficulty of appeals. And
well satisfied as I am of the propriety of the appellate
jurisdiction, in the several classes of causes to which it is
extended by the plan of the convention. I should consider every
thing calculated to give, in practice, an UNRESTRAINED COURSE to
appeals, as a source of public and private inconvenience.
I am not sure, but that it will be found highly expedient and
useful, to divide the United States into four or five or half a
dozen districts; and to institute a federal court in each district,
in lieu of one in every State. The judges of these courts, with the
aid of the State judges, may hold circuits for the trial of causes
in the several parts of the respective districts. Justice through
them may be administered with ease and despatch; and appeals may be
safely circumscribed within a narrow compass. This plan appears to
me at present the most eligible of any that could be adopted; and
in order to it, it is necessary that the power of constituting
inferior courts should exist in the full extent in which it is to be
found in the proposed Constitution.
These reasons seem sufficient to satisfy a candid mind, that the
want of such a power would have been a great defect in the plan.
Let us now examine in what manner the judicial authority is to be
distributed between the supreme and the inferior courts of the Union.
The Supreme Court is to be invested with original jurisdiction,
only “in cases affecting ambassadors, other public ministers, and
consuls, and those in which A STATE shall be a party.” Public
ministers of every class are the immediate representatives of their
sovereigns. All questions in which they are concerned are so
directly connected with the public peace, that, as well for the
preservation of this, as out of respect to the sovereignties they
represent, it is both expedient and proper that such questions
should be submitted in the first instance to the highest judicatory
of the nation. Though consuls have not in strictness a diplomatic
character, yet as they are the public agents of the nations to which
they belong, the same observation is in a great measure applicable
to them. In cases in which a State might happen to be a party, it
would ill suit its dignity to be turned over to an inferior tribunal.
Though it may rather be a digression from the immediate subject
of this paper, I shall take occasion to mention here a supposition
which has excited some alarm upon very mistaken grounds. It has
been suggested that an assignment of the public securities of one
State to the citizens of another, would enable them to prosecute
that State in the federal courts for the amount of those securities;
a suggestion which the following considerations prove to be without
foundation.
It is inherent in the nature of sovereignty not to be amenable
to the suit of an individual WITHOUT ITS CONSENT. This is the
general sense, and the general practice of mankind; and the
exemption, as one of the attributes of sovereignty, is now enjoyed
by the government of every State in the Union. Unless, therefore,
there is a surrender of this immunity in the plan of the convention,
it will remain with the States, and the danger intimated must be
merely ideal. The circumstances which are necessary to produce an
alienation of State sovereignty were discussed in considering the
article of taxation, and need not be repeated here. A recurrence to
the principles there established will satisfy us, that there is no
color to pretend that the State governments would, by the adoption
of that plan, be divested of the privilege of paying their own debts
in their own way, free from every constraint but that which flows
from the obligations of good faith. The contracts between a nation
and individuals are only binding on the conscience of the sovereign,
and have no pretensions to a compulsive force. They confer no right
of action, independent of the sovereign will. To what purpose would
it be to authorize suits against States for the debts they owe? How
could recoveries be enforced? It is evident, it could not be done
without waging war against the contracting State; and to ascribe to
the federal courts, by mere implication, and in destruction of a
pre-existing right of the State governments, a power which would
involve such a consequence, would be altogether forced and
unwarrantable.
Let us resume the train of our observations. We have seen that
the original jurisdiction of the Supreme Court would be confined to
two classes of causes, and those of a nature rarely to occur. In
all other cases of federal cognizance, the original jurisdiction
would appertain to the inferior tribunals; and the Supreme Court
would have nothing more than an appellate jurisdiction, “with such
EXCEPTIONS and under such REGULATIONS as the Congress shall make.”
The propriety of this appellate jurisdiction has been scarcely
called in question in regard to matters of law; but the clamors
have been loud against it as applied to matters of fact. Some
well-intentioned men in this State, deriving their notions from the
language and forms which obtain in our courts, have been induced to
consider it as an implied supersedure of the trial by jury, in favor
of the civil-law mode of trial, which prevails in our courts of
admiralty, probate, and chancery. A technical sense has been
affixed to the term “appellate,” which, in our law parlance, is
commonly used in reference to appeals in the course of the civil law.
But if I am not misinformed, the same meaning would not be given
to it in any part of New England. There an appeal from one jury to
another, is familiar both in language and practice, and is even a
matter of course, until there have been two verdicts on one side.
The word “appellate,” therefore, will not be understood in the
same sense in New England as in New York, which shows the
impropriety of a technical interpretation derived from the
jurisprudence of any particular State. The expression, taken in the
abstract, denotes nothing more than the power of one tribunal to
review the proceedings of another, either as to the law or fact, or
both. The mode of doing it may depend on ancient custom or
legislative provision (in a new government it must depend on the
latter), and may be with or without the aid of a jury, as may be
judged advisable. If, therefore, the re-examination of a fact once
determined by a jury, should in any case be admitted under the
proposed Constitution, it may be so regulated as to be done by a
second jury, either by remanding the cause to the court below for a
second trial of the fact, or by directing an issue immediately out
of the Supreme Court.
But it does not follow that the re-examination of a fact once
ascertained by a jury, will be permitted in the Supreme Court. Why
may not it be said, with the strictest propriety, when a writ of
error is brought from an inferior to a superior court of law in this
State, that the latter has jurisdiction of the fact as well as the
law? It is true it cannot institute a new inquiry concerning the
fact, but it takes cognizance of it as it appears upon the record,
and pronounces the law arising upon it.3 This is jurisdiction
of both fact and law; nor is it even possible to separate them.
Though the common-law courts of this State ascertain disputed facts
by a jury, yet they unquestionably have jurisdiction of both fact
and law; and accordingly when the former is agreed in the
pleadings, they have no recourse to a jury, but proceed at once to
judgment. I contend, therefore, on this ground, that the
expressions, “appellate jurisdiction, both as to law and fact,” do
not necessarily imply a re-examination in the Supreme Court of facts
decided by juries in the inferior courts.
The following train of ideas may well be imagined to have
influenced the convention, in relation to this particular provision.
The appellate jurisdiction of the Supreme Court (it may have been
argued) will extend to causes determinable in different modes, some
in the course of the COMMON LAW, others in the course of the CIVIL
LAW. In the former, the revision of the law only will be, generally
speaking, the proper province of the Supreme Court; in the latter,
the re-examination of the fact is agreeable to usage, and in some
cases, of which prize causes are an example, might be essential to
the preservation of the public peace. It is therefore necessary
that the appellate jurisdiction should, in certain cases, extend in
the broadest sense to matters of fact. It will not answer to make
an express exception of cases which shall have been originally tried
by a jury, because in the courts of some of the States ALL CAUSES
are tried in this mode4; 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
enable the government to modify it in such a manner as will best
answer the ends of public justice and security.
This view of the matter, at any rate, puts it out of all doubt
that the supposed ABOLITION of the trial by jury, by the operation
of this provision, is fallacious and untrue. The legislature of the
United States would certainly have full power to provide, that in
appeals to the Supreme Court there should be no re-examination of
facts where they had been tried in the original causes by juries.
This would certainly be an authorized exception; but if, for the
reason already intimated, it should be thought too extensive, it
might be qualified with a limitation to such causes only as are
determinable at common law in that mode of trial.
The amount of the observations hitherto made on the authority of
the judicial department is this: that it has been carefully
restricted to those causes which are manifestly proper for the
cognizance of the national judicature; that in the partition of
this authority a very small portion of original jurisdiction has
been preserved to the Supreme Court, and the rest consigned to the
subordinate tribunals; that the Supreme Court will possess an
appellate jurisdiction, both as to law and fact, in all the cases
referred to them, both subject to any EXCEPTIONS and REGULATIONS
which may be thought advisable; that this appellate jurisdiction
does, in no case, ABOLISH the trial by jury; and that an ordinary
degree of prudence and integrity in the national councils will
insure us solid advantages from the establishment of the proposed
judiciary, without exposing us to any of the inconveniences which
have been predicted from that source.
PUBLIUS.
1 Article 3, sec. I.
2 This power has been absurdly represented as intended to
abolish all the county courts in the several States, which are
commonly called inferior courts. But the expressions of the
Constitution are, to constitute “tribunals INFERIOR TO THE SUPREME
COURT”; and the evident design of the provision is to enable the
institution of local courts, subordinate to the Supreme, either in
States or larger districts. It is ridiculous to imagine that county
courts were in contemplation.
3 This word is composed of JUS and DICTIO, juris dictio or a
speaking and pronouncing of the law.
4 I hold that the States will have concurrent jurisdiction with
the subordinate federal judicatories, in many cases of federal
cognizance, as will be explained in my next paper.

 

FEDERALIST No. 82

The Judiciary Continued
From McLEAN’s Edition, New York.

HAMILTON

To the People of the State of New York:
THE erection of a new government, whatever care or wisdom may
distinguish the work, cannot fail to originate questions of
intricacy and nicety; and these may, in a particular manner, be
expected to flow from the establishment of a constitution founded
upon the total or partial incorporation of a number of distinct
sovereignties. ‘T is time only that can mature and perfect so
compound a system, can liquidate the meaning of all the parts, and
can adjust them to each other in a harmonious and consistent WHOLE.
Such questions, accordingly, have arisen upon the plan proposed
by the convention, and particularly concerning the judiciary
department. The principal of these respect the situation of the
State courts in regard to those causes which are to be submitted to
federal jurisdiction. Is this to be exclusive, or are those courts
to possess a concurrent jurisdiction? If the latter, in what
relation will they stand to the national tribunals? These are
inquiries which we meet with in the mouths of men of sense, and
which are certainly entitled to attention.
The principles established in a former paper1 teach us that
the States will retain all PRE-EXISTING authorities which may not be
exclusively delegated to the federal head; and that this exclusive
delegation can only exist in one of three cases: where an exclusive
authority is, in express terms, granted to the Union; or where a
particular authority is granted to the Union, and the exercise of a
like authority is prohibited to the States; or where an authority
is granted to the Union, with which a similar authority in the
States would be utterly incompatible. Though these principles may
not apply with the same force to the judiciary as to the legislative
power, yet I am inclined to think that they are, in the main, just
with respect to the former, as well as the latter. And under this
impression, I shall lay it down as a rule, that the State courts
will RETAIN the jurisdiction they now have, unless it appears to be
taken away in one of the enumerated modes.
The only thing in the proposed Constitution, which wears the
appearance of confining the causes of federal cognizance to the
federal courts, is contained in this passage: “The JUDICIAL POWER
of the United States SHALL BE VESTED in one Supreme Court, and in
SUCH inferior courts as the Congress shall from time to time ordain
and establish.” This might either be construed to signify, that
the supreme and subordinate courts of the Union should alone have
the power of deciding those causes to which their authority is to
extend; or simply to denote, that the organs of the national
judiciary should be one Supreme 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
abridgment of a pre-existing authority. I mean not therefore to
contend that the United States, in the course of legislation upon
the objects intrusted to their direction, may not commit the
decision of causes arising upon a particular regulation to the
federal courts solely, if such a measure should be deemed expedient;
but I hold that the State courts will be divested of no part of
their primitive jurisdiction, further than may relate to an appeal;
and I am even of opinion that in every case in which they were not
expressly excluded by the future acts of the national legislature,
they will of course take cognizance of the causes to which those
acts may give birth. This I infer from the nature of judiciary
power, and from the general genius of the system. The judiciary
power of every government looks beyond its own local or municipal
laws, and in civil cases lays hold of all subjects of litigation
between parties within its jurisdiction, though the causes of
dispute are relative to the laws of the most distant part of the
globe. Those of Japan, not less than of New York, may furnish the
objects of legal discussion to our courts. When in addition to this
we consider the State governments and the national governments, as
they truly are, in the light of kindred systems, and as parts of ONE
WHOLE, the inference seems to be conclusive, that the State courts
would have a concurrent jurisdiction in all cases arising under the
laws of the Union, where it was not expressly prohibited.
Here another question occurs: What relation would subsist
between the national and State courts in these instances of
concurrent jurisdiction? I answer, that an appeal would certainly
lie from the latter, to the Supreme Court of the United States. The
Constitution in direct terms gives an appellate jurisdiction to the
Supreme Court in all the enumerated cases of federal cognizance in
which it is not to have an original one, without a single expression
to confine its operation to the inferior federal courts. The
objects of appeal, not the tribunals from which it is to be made,
are alone contemplated. From this circumstance, and from the reason
of the thing, it ought to be construed to extend to the State
tribunals. Either this must be the case, or the local courts must
be excluded from a concurrent jurisdiction in matters of national
concern, else the judiciary authority of the Union may be eluded at
the pleasure of every plaintiff or prosecutor. Neither of these
consequences ought, without evident necessity, to be involved; the
latter would be entirely inadmissible, as it would defeat some of
the most important and avowed purposes of the proposed government,
and would essentially embarrass its measures. Nor do I perceive any
foundation for such a supposition. Agreeably to the remark already
made, the national and State systems are to be regarded as ONE WHOLE.
The courts of the latter will of course be natural auxiliaries to
the execution of the laws of the Union, and an appeal from them will
as naturally lie to that tribunal which is destined to unite and
assimilate the principles of national justice and the rules of
national decisions. The evident aim of the plan of the convention
is, that all the causes of the specified classes shall, for weighty
public reasons, receive their original or final determination in the
courts of the Union. To confine, therefore, the general expressions
giving appellate jurisdiction to the Supreme Court, to appeals from
the subordinate federal courts, instead of allowing their extension
to the State courts, would be to abridge the latitude of the terms,
in subversion of the intent, contrary to every sound rule of
interpretation.
But could an appeal be made to lie from the State courts to the
subordinate federal judicatories? This is another of the questions
which have been raised, and of greater difficulty than the former.
The following considerations countenance the affirmative. The plan
of the convention, in the first place, authorizes the national
legislature “to constitute tribunals inferior to the Supreme
Court.”2 It declares, in the next place, that “the JUDICIAL
POWER of the United States SHALL BE VESTED in one Supreme Court, and
in such inferior courts as Congress shall ordain and establish”;
and it then proceeds to enumerate the cases to which this judicial
power shall extend. It afterwards divides the jurisdiction of the
Supreme Court into original and appellate, but gives no definition
of that of the subordinate courts. The only outlines described for
them, are that they shall be “inferior to the Supreme Court,” and
that they shall not exceed the specified limits of the federal
judiciary. Whether their authority shall be original or appellate,
or both, is not declared. All this seems to be left to the
discretion of the legislature. And this being the case, I perceive
at present no impediment to the establishment of an appeal from the
State courts to the subordinate national tribunals; and many
advantages attending the power of doing it may be imagined. It
would diminish the motives to the multiplication of federal courts,
and would admit of arrangements calculated to contract the appellate
jurisdiction of the Supreme Court. The State tribunals may then be
left with a more entire charge of federal causes; and appeals, in
most cases in which they may be deemed proper, instead of being
carried to the Supreme Court, may be made to lie from the State
courts to district courts of the Union.
PUBLIUS.
1 No. 31.
2 Sec. 8th art. 1st.

 

FEDERALIST No. 83

The Judiciary Continued in Relation to Trial by Jury
From MCLEAN’s Edition, New York.

HAMILTON

To the People of the State of New York:
THE objection to the plan of the convention, which has met with
most success in this State, and perhaps in several of the other
States, is THAT RELATIVE TO THE WANT OF A CONSTITUTIONAL PROVISION
for the trial by jury in civil cases. The disingenuous form in
which this objection is usually stated has been repeatedly adverted
to and exposed, but continues to be pursued in all the conversations
and writings of the opponents of the plan. The mere silence of the
Constitution in regard to CIVIL CAUSES, is represented as an
abolition of the trial by jury, and the declamations to which it has
afforded a pretext are artfully calculated to induce a persuasion
that this pretended abolition is complete and universal, extending
not only to every species of civil, but even to CRIMINAL CAUSES. To
argue with respect to the latter would, however, be as vain and
fruitless as to attempt the serious proof of the EXISTENCE of
MATTER, or to demonstrate any of those propositions which, by their
own internal evidence, force conviction, when expressed in language
adapted to convey their meaning.
With regard to civil causes, subtleties almost too contemptible
for refutation have been employed to countenance the surmise that a
thing which is only NOT PROVIDED FOR, is entirely ABOLISHED. Every
man of discernment must at once perceive the wide difference between
SILENCE and ABOLITION. But as the inventors of this fallacy have
attempted to support it by certain LEGAL MAXIMS of interpretation,
which they have perverted from their true meaning, it may not be
wholly useless to explore the ground they have taken.
The maxims on which they rely are of this nature: “A
specification of particulars is an exclusion of generals”; or,
“The expression of one thing is the exclusion of another.” Hence,
say they, as the Constitution has established the trial by jury in
criminal cases, and is silent in respect to civil, this silence is
an implied prohibition of trial by jury in regard to the latter.
The rules of legal interpretation are rules of COMMONSENSE,
adopted by the courts in the construction of the laws. The true
test, therefore, of a just application of them is its conformity to
the source from which they are derived. This being the case, let me
ask if it is consistent with common-sense to suppose that a
provision obliging the legislative power to commit the trial of
criminal causes to juries, is a privation of its right to authorize
or permit that mode of trial in other cases? Is it natural to
suppose, that a command to do one thing is a prohibition to the
doing of another, which there was a previous power to do, and which
is not incompatible with the thing commanded to be done? If such a
supposition would be unnatural and unreasonable, it cannot be
rational to maintain that an injunction of the trial by jury in
certain cases is an interdiction of it in others.
A power to constitute courts is a power to prescribe the mode of
trial; and consequently, if nothing was said in the Constitution on
the subject of juries, the legislature would be at liberty either to
adopt that institution or to let it alone. This discretion, in
regard to criminal causes, is abridged by the express injunction of
trial by jury in all such cases; but it is, of course, left at
large in relation to civil causes, there being a total silence on
this head. The specification of an obligation to try all criminal
causes in a particular mode, excludes indeed the obligation or
necessity of employing the same mode in civil causes, but does not
abridge THE POWER of the legislature to exercise that mode if it
should be thought proper. The pretense, therefore, that the
national legislature would not be at full liberty to submit all the
civil causes of federal cognizance to the determination of juries,
is a pretense destitute of all just foundation.
From these observations this conclusion results: that the trial
by jury in civil cases would not be abolished; and that the use
attempted to be made of the maxims which have been quoted, is
contrary to reason and common-sense, and therefore not admissible.
Even if these maxims had a precise technical sense, corresponding
with the idea of those who employ them upon the present occasion,
which, however, is not the case, they would still be inapplicable to
a constitution of government. In relation to such a subject, the
natural and obvious sense of its provisions, apart from any
technical rules, is the true criterion of construction.
Having now seen that the maxims relied upon will not bear the
use made of them, let us endeavor to ascertain their proper use and
true meaning. This will be best done by examples. The plan of the
convention declares that the power of Congress, or, in other words,
of the NATIONAL LEGISLATURE, shall extend to certain enumerated
cases. This specification of particulars evidently excludes all
pretension to a general legislative authority, because an
affirmative grant of special powers would be absurd, as well as
useless, if a general authority was intended.
In like manner the judicial authority of the federal judicatures
is declared by the Constitution to comprehend certain cases
particularly specified. The expression of those cases marks the
precise limits, beyond which the federal courts cannot extend their
jurisdiction, because the objects of their cognizance being
enumerated, the specification would be nugatory if it did not
exclude all ideas of more extensive authority.
These examples are sufficient to elucidate the maxims which have
been mentioned, and to designate the manner in which they should be
used. But that there may be no misapprehensions upon this subject,
I shall add one case more, to demonstrate the proper use of these
maxims, and the abuse which has been made of them.
Let us suppose that by the laws of this State a married woman
was incapable of conveying her estate, and that the legislature,
considering this as an evil, should enact that she might dispose of
her property by deed executed in the presence of a magistrate. In
such a case there can be no doubt but the specification would amount
to an exclusion of any other mode of conveyance, because the woman
having no previous power to alienate her property, the specification
determines the particular mode which she is, for that purpose, to
avail herself of. But let us further suppose that in a subsequent
part of the same act it should be declared that no woman should
dispose of any estate of a determinate value without the consent of
three of her nearest relations, signified by their signing the deed;
could it be inferred from this regulation that a married woman
might not procure the approbation of her relations to a deed for
conveying property of inferior value? The position is too absurd to
merit a refutation, and yet this is precisely the position which
those must establish who contend that the trial by juries in civil
cases is abolished, because it is expressly provided for in cases of
a criminal nature.
From these observations it must appear unquestionably true, that
trial by jury is in no case abolished by the proposed Constitution,
and it is equally true, that in those controversies between
individuals in which the great body of the people are likely to be
interested, that institution will remain precisely in the same
situation in which it is placed by the State constitutions, and will
be in no degree altered or influenced by the adoption of the plan
under consideration. The foundation of this assertion is, that the
national judiciary will have no cognizance of them, and of course
they will remain determinable as heretofore by the State courts
only, and in the manner which the State constitutions and laws
prescribe. All land causes, except where claims under the grants of
different States come into question, and all other controversies
between the citizens of the same State, unless where they depend
upon positive violations of the articles of union, by acts of the
State legislatures, will belong exclusively to the jurisdiction of
the State tribunals. Add to this, that admiralty causes, and almost
all those which are of equity jurisdiction, are determinable under
our own government without the intervention of a jury, and the
inference from the whole will be, that this institution, as it
exists with us at present, cannot possibly be affected to any great
extent by the proposed alteration in our system of government.
The friends and adversaries of the plan of the convention, if
they agree in nothing else, concur at least in the value they set
upon the trial by jury; or if there is any difference between them
it consists in this: the former regard it as a valuable safeguard
to liberty; the latter represent it as the very palladium of free
government. For my own part, the more the operation of the
institution has fallen under my observation, the more reason I have
discovered for holding it in high estimation; and it would be
altogether superfluous to examine to what extent it deserves to be
esteemed useful or essential in a representative republic, or how
much more merit it may be entitled to, as a defense against the
oppressions of an hereditary monarch, than as a barrier to the
tyranny of popular magistrates in a popular government. Discussions
of this kind would be more curious than beneficial, as all are
satisfied of the utility of the institution, and of its friendly
aspect to liberty. But I must acknowledge that I cannot readily
discern the inseparable connection between the existence of liberty,
and the trial by jury in civil cases. Arbitrary impeachments,
arbitrary methods of prosecuting pretended offenses, and arbitrary
punishments upon arbitrary convictions, have ever appeared to me to
be the great engines of judicial despotism; and these have all
relation to criminal proceedings. The trial by jury in criminal
cases, aided by the habeas-corpus act, seems therefore to be
alone concerned in the question. And both of these are provided
for, in the most ample manner, in the plan of the convention.
It has been observed, that trial by jury is a safeguard against
an oppressive exercise of the power of taxation. This observation
deserves to be canvassed.
It is evident that it can have no influence upon the
legislature, in regard to the AMOUNT of taxes to be laid, to the
OBJECTS upon which they are to be imposed, or to the RULE by which
they are to be apportioned. If it can have any influence,
therefore, it must be upon the mode of collection, and the conduct
of the officers intrusted with the execution of the revenue laws.
As to the mode of collection in this State, under our own
Constitution, the trial by jury is in most cases out of use. The
taxes are usually levied by the more summary proceeding of distress
and sale, as in cases of rent. And it is acknowledged on all hands,
that this is essential to the efficacy of the revenue laws. The
dilatory course of a trial at law to recover the taxes imposed on
individuals, would neither suit the exigencies of the public nor
promote the convenience of the citizens. It would often occasion an
accumulation of costs, more burdensome than the original sum of the
tax to be levied.
And as to the conduct of the officers of the revenue, the
provision in favor of trial by jury in criminal cases, will afford
the security aimed at. Wilful abuses of a public authority, to the
oppression of the subject, and every species of official extortion,
are offenses against the government, for which the persons who
commit them may be indicted and punished according to the
circumstances of the case.
The excellence of the trial by jury in civil cases appears to
depend on circumstances foreign to the preservation of liberty. The
strongest argument in its favor is, that it is a security against
corruption. As there is always more time and better opportunity to
tamper with a standing body of magistrates than with a jury summoned
for the occasion, there is room to suppose that a corrupt influence
would more easily find its way to the former than to the latter.
The force of this consideration is, however, diminished by others.
The sheriff, who is the summoner of ordinary juries, and the clerks
of courts, who have the nomination of special juries, are themselves
standing officers, and, acting individually, may be supposed more
accessible to the touch of corruption than the judges, who are a
collective body. It is not difficult to see, that it would be in
the power of those officers to select jurors who would serve the
purpose of the party as well as a corrupted bench. In the next
place, it may fairly be supposed, that there would be less
difficulty in gaining some of the jurors promiscuously taken from
the public mass, than in gaining men who had been chosen by the
government for their probity and good character. But making every
deduction for these considerations, the trial by jury must still be
a valuable check upon corruption. It greatly multiplies the
impediments to its success. As matters now stand, it would be
necessary to corrupt both court and jury; for where the jury have
gone evidently wrong, the court will generally grant a new trial,
and it would be in most cases of little use to practice upon the
jury, unless the court could be likewise gained. Here then is a
double security; and it will readily be perceived that this
complicated agency tends to preserve the purity of both institutions.
By increasing the obstacles to success, it discourages attempts to
seduce the integrity of either. The temptations to prostitution
which the judges might have to surmount, must certainly be much
fewer, while the co-operation of a jury is necessary, than they
might be, if they had themselves the exclusive determination of all
causes.
Notwithstanding, therefore, the doubts I have expressed, as to
the essentiality of trial by jury in civil cases to liberty, I admit
that it is in most cases, under proper regulations, an excellent
method of determining questions of property; and that on this
account alone it would be entitled to a constitutional provision in
its favor if it were possible to fix the limits within which it
ought to be comprehended. There is, however, in all cases, great
difficulty in this; and men not blinded by enthusiasm must be
sensible that in a federal government, which is a composition of
societies whose ideas and institutions in relation to the matter
materially vary from each other, that difficulty must be not a
little augmented. For my own part, at every new view I take of the
subject, I become more convinced of the reality of the obstacles
which, we are authoritatively informed, prevented the insertion of a
provision on this head in the plan of the convention.
The great difference between the limits of the jury trial in
different States is not generally understood; and as it must have
considerable influence on the sentence we ought to pass upon the
omission complained of in regard to this point, an explanation of it
is necessary. In this State, our judicial establishments resemble,
more nearly than in any other, those of Great Britain. We have
courts of common law, courts of probates (analogous in certain
matters to the spiritual courts in England), a court of admiralty
and a court of chancery. In the courts of common law only, the
trial by jury prevails, and this with some exceptions. In all the
others a single judge presides, and proceeds in general either
according to the course of the canon or civil law, without the aid
of a jury.1 In New Jersey, there is a court of chancery which
proceeds like ours, but neither courts of admiralty nor of probates,
in the sense in which these last are established with us. In that
State the courts of common law have the cognizance of those causes
which with us are determinable in the courts of admiralty and of
probates, and of course the jury trial is more extensive in New
Jersey than in New York. In Pennsylvania, this is perhaps still
more the case, for there is no court of chancery in that State, and
its common-law courts have equity jurisdiction. It has a court of
admiralty, but none of probates, at least on the plan of ours.
Delaware has in these respects imitated Pennsylvania. Maryland
approaches more nearly to New York, as does also Virginia, except
that the latter has a plurality of chancellors. North Carolina
bears most affinity to Pennsylvania; South Carolina to Virginia. I
believe, however, that in some of those States which have distinct
courts of admiralty, the causes depending in them are triable by
juries. In Georgia there are none but common-law courts, and an
appeal of course lies from the verdict of one jury to another, which
is called a special jury, and for which a particular mode of
appointment is marked out. In Connecticut, they have no distinct
courts either of chancery or of admiralty, and their courts of
probates have no jurisdiction of causes. Their common-law courts
have admiralty and, to a certain extent, equity jurisdiction. In
cases of importance, their General Assembly is the only court of
chancery. In Connecticut, therefore, the trial by jury extends in
PRACTICE further than in any other State yet mentioned. Rhode
Island is, I believe, in this particular, pretty much in the
situation of Connecticut. Massachusetts and New Hampshire, in
regard to the blending of law, equity, and admiralty jurisdictions,
are in a similar predicament. In the four Eastern States, the trial
by jury not only stands upon a broader foundation than in the other
States, but it is attended with a peculiarity unknown, in its full
extent, to any of them. There is an appeal OF COURSE from one jury
to another, till there have been two verdicts out of three on one
side.
From this sketch it appears that there is a material diversity,
as well in the modification as in the extent of the institution of
trial by jury in civil cases, in the several States; and from this
fact these obvious reflections flow: first, that no general rule
could have been fixed upon by the convention which would have
corresponded with the circumstances of all the States; and
secondly, that more or at least as much might have been hazarded by
taking the system of any one State for a standard, as by omitting a
provision altogether and leaving the matter, as has been done, to
legislative regulation.
The propositions which have been made for supplying the omission
have rather served to illustrate than to obviate the difficulty of
the thing. The minority of Pennsylvania have proposed this mode of
expression for the purpose “Trial by jury shall be as
heretofore” and this I maintain would be senseless and nugatory.
The United States, in their united or collective capacity, are the
OBJECT to which all general provisions in the Constitution must
necessarily be construed to refer. Now it is evident that though
trial by jury, with various limitations, is known in each State
individually, yet in the United States, AS SUCH, it is at this time
altogether unknown, because the present federal government has no
judiciary power whatever; and consequently there is no proper
antecedent or previous establishment to which the term HERETOFORE
could relate. It would therefore be destitute of a precise meaning,
and inoperative from its uncertainty.
As, on the one hand, the form of the provision would not fulfil
the intent of its proposers, so, on the other, if I apprehend that
intent rightly, it would be in itself inexpedient. I presume it to
be, that causes in the federal courts should be tried by jury, if,
in the State where the courts sat, that mode of trial would obtain
in a similar case in the State courts; that is to say, admiralty
causes should be tried in Connecticut by a jury, in New York without
one. The capricious operation of so dissimilar a method of trial in
the same cases, under the same government, is of itself sufficient
to indispose every wellregulated judgment towards it. Whether the
cause should be tried with or without a jury, would depend, in a
great number of cases, on the accidental situation of the court and
parties.
But this is not, in my estimation, the greatest objection. I
feel a deep and deliberate conviction that there are many cases in
which the trial by jury is an ineligible one. I think it so
particularly in cases which concern the public peace with foreign
nations that is, in most cases where the question turns wholly on
the laws of nations. Of this nature, among others, are all prize
causes. Juries cannot be supposed competent to investigations that
require a thorough knowledge of the laws and usages of nations; and
they will sometimes be under the influence of impressions which will
not suffer them to pay sufficient regard to those considerations of
public policy which ought to guide their inquiries. There would of
course be always danger that the rights of other nations might be
infringed by their decisions, so as to afford occasions of reprisal
and war. Though the proper province of juries be to determine
matters of fact, yet in most cases legal consequences are
complicated with fact in such a manner as to render a separation
impracticable.
It will add great weight to this remark, in relation to prize
causes, to mention that the method of determining them has been
thought worthy of particular regulation in various treaties between
different powers of Europe, and that, pursuant to such treaties,
they are determinable in Great Britain, in the last resort, before
the king himself, in his privy council, where the fact, as well as
the law, undergoes a re-examination. This alone demonstrates the
impolicy of inserting a fundamental provision in the Constitution
which would make the State systems a standard for the national
government in the article under consideration, and the danger of
encumbering the government with any constitutional provisions the
propriety of which is not indisputable.
My convictions are equally strong that great advantages result
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 EXCEPTIONS2
to general rules. To unite the jurisdiction of such cases with the
ordinary jurisdiction, must have a tendency to unsettle the general
rules, and to subject every case that arises to a SPECIAL
determination; while a separation of the one from the other has the
contrary effect of rendering one a sentinel over the other, and of
keeping each within the expedient limits. Besides this, the
circumstances that constitute cases proper for courts of equity are
in many instances so nice and intricate, that they are incompatible
with the genius of trials by jury. They require often such long,
deliberate, and critical investigation as would be impracticable to
men called from their occupations, and obliged to decide before they
were permitted to return to them. The simplicity and expedition
which form the distinguishing characters of this mode of trial
require that the matter to be decided should be reduced to some
single and obvious point; while the litigations usual in chancery
frequently comprehend a long train of minute and independent
particulars.
It is true that the separation of the equity from the legal
jurisdiction is peculiar to the English system of jurisprudence:
which is the model that has been followed in several of the States.
But it is equally true that the trial by jury has been unknown in
every case in which they have been united. And the separation is
essential to the preservation of that institution in its pristine
purity. The nature of a court of equity will readily permit the
extension of its jurisdiction to matters of law; but it is not a
little to be suspected, that the attempt to extend the jurisdiction
of the courts of law to matters of equity will not only be
unproductive of the advantages which may be derived from courts of
chancery, on the plan upon which they are established in this State,
but will tend gradually to change the nature of the courts of law,
and to undermine the trial by jury, by introducing questions too
complicated for a decision in that mode.
These appeared to be conclusive reasons against incorporating
the systems of all the States, in the formation of the national
judiciary, according to what may be conjectured to have been the
attempt of the Pennsylvania minority. Let us now examine how far
the proposition of Massachusetts is calculated to remedy the
supposed defect.
It is in this form: “In civil actions between citizens of
different States, every issue of fact, arising in ACTIONS AT COMMON
LAW, may be tried by a jury if the parties, or either of them
request it.”
This, at best, is a proposition confined to one description of
causes; and the inference is fair, either that the Massachusetts
convention considered that as the only class of federal causes, in
which the trial by jury would be proper; or that if desirous of a
more extensive provision, they found it impracticable to devise one
which would properly answer the end. If the first, the omission of
a regulation respecting so partial an object can never be considered
as a material imperfection in the system. If the last, it affords a
strong corroboration of the extreme difficulty of the thing.
But this is not all: if we advert to the observations already
made respecting the courts that subsist in the several States of the
Union, and the different powers exercised by them, it will appear
that there are no expressions more vague and indeterminate than
those which have been employed to characterize THAT species of
causes which it is intended shall be entitled to a trial by jury.
In this State, the boundaries between actions at common law and
actions of equitable jurisdiction, are ascertained in conformity to
the rules which prevail in England upon that subject. In many of
the other States the boundaries are less precise. In some of them
every cause is to be tried in a court of common law, and upon that
foundation every action may be considered as an action at common
law, to be determined by a jury, if the parties, or either of them,
choose it. Hence the same irregularity and confusion would be
introduced by a compliance with this proposition, that I have
already noticed as resulting from the regulation proposed by the
Pennsylvania minority. In one State a cause would receive its
determination from a jury, if the parties, or either of them,
requested it; but in another State, a cause exactly similar to the
other, must be decided without the intervention of a jury, because
the State judicatories varied as to common-law jurisdiction.
It is obvious, therefore, that the Massachusetts proposition,
upon this subject cannot operate as a general regulation, until some
uniform plan, with respect to the limits of common-law and equitable
jurisdictions, shall be adopted by the different States. To devise
a plan of that kind is a task arduous in itself, and which it would
require much time and reflection to mature. It would be extremely
difficult, if not impossible, to suggest any general regulation that
would be acceptable to all the States in the Union, or that would
perfectly quadrate with the several State institutions.
It may be asked, Why could not a reference have been made to the
constitution of this State, taking that, which is allowed by me to
be a good one, as a standard for the United States? I answer that
it is not very probable the other States would entertain the same
opinion of our institutions as we do ourselves. It is natural to
suppose that they are hitherto more attached to their own, and that
each would struggle for the preference. If the plan of taking one
State as a model for the whole had been thought of in the
convention, it is to be presumed that the adoption of it in that
body would have been rendered difficult by the predilection of each
representation in favor of its own government; and it must be
uncertain which of the States would have been taken as the model.
It has been shown that many of them would be improper ones. And I
leave it to conjecture, whether, under all circumstances, it is most
likely that New York, or some other State, would have been preferred.
But admit that a judicious selection could have been effected in
the convention, still there would have been great danger of jealousy
and disgust in the other States, at the partiality which had been
shown to the 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 sometimes suggested by men
of enthusiastic tempers, that a provision might have been inserted
for establishing it in all cases whatsoever. For this I believe, no
precedent is to be found in any member of the Union; and the
considerations which have been stated in discussing the proposition
of the minority of Pennsylvania, must satisfy every sober mind that
the establishment of the trial by jury in ALL cases would have been
an unpardonable error in the plan.
In short, the more it is considered the more arduous will appear
the task of fashioning a provision in such a form as not to express
too little to answer the purpose, or too much to be advisable; or
which might not have opened other sources of opposition to the great
and essential object of introducing a firm national government.
I cannot but persuade myself, on the other hand, that the
different lights in which the subject has been placed in the course
of these observations, will go far towards removing in candid minds
the apprehensions they may have entertained on the point. They have
tended to show that the security of liberty is materially concerned
only in the trial by jury in criminal cases, which is provided for
in the most ample manner in the plan of the convention; that even
in far the greatest proportion of civil cases, and those in which
the great body of the community is interested, that mode of trial
will remain in its full force, as established in the State
constitutions, untouched and unaffected by the plan of the
convention; that it is in no case abolished3 by that plan; and
that there are great if not insurmountable difficulties in the way
of making any precise and proper provision for it in a Constitution
for the United States.
The best judges of the matter will be the least anxious for a
constitutional establishment of the trial by jury in civil cases,
and will be the most ready to admit that the changes which are
continually happening in the affairs of society may render a
different mode of determining questions of property preferable in
many cases in which that mode of trial now prevails. For my part, I
acknowledge myself to be convinced that even in this State it might
be advantageously extended to some cases to which it does not at
present apply, and might as advantageously be abridged in others.
It is conceded by all reasonable men that it ought not to obtain in
all cases. The examples of innovations which contract its ancient
limits, as well in these States as in Great Britain, afford a strong
presumption that its former extent has been found inconvenient, and
give room to suppose that future experience may discover the
propriety and utility of other exceptions. I suspect it to be
impossible in the nature of the thing to fix the salutary point at
which the operation of the institution ought to stop, and this is
with me a strong argument for leaving the matter to the discretion
of the legislature.
This is now clearly understood to be the case in Great Britain,
and it is equally so in the State of Connecticut; and yet it may be
safely affirmed that more numerous encroachments have been made upon
the trial by jury in this State since the Revolution, though
provided for by a positive article of our constitution, than has
happened in the same time either in Connecticut or Great Britain.
It may be added that these encroachments have generally originated
with the men who endeavor to persuade the people they are the
warmest defenders of popular liberty, but who have rarely suffered
constitutional obstacles to arrest them in a favorite career. The
truth is that the general GENIUS of a government is all that can be
substantially relied upon for permanent effects. Particular
provisions, though not altogether useless, have far less virtue and
efficacy than are commonly ascribed to them; and the want of them
will never be, with men of sound discernment, a decisive objection
to any plan which exhibits the leading characters of a good
government.
It certainly sounds not a little harsh and extraordinary to
affirm that there is no security for liberty in a Constitution which
expressly establishes the trial by jury in criminal cases, because
it does not do it in civil also; while it is a notorious fact that
Connecticut, which has been always regarded as the most popular
State in the Union, can boast of no constitutional provision for
either.
PUBLIUS.
1 It has been erroneously insinuated. with regard to the court
of chancery, that this court generally tries disputed facts by a
jury. The truth is, that references to a jury in that court rarely
happen, and are in no case necessary but where the validity of a
devise of land comes into question.
2 It is true that the principles by which that relief is
governed are now reduced to a regular system; but it is not the
less true that they are in the main applicable to SPECIAL
circumstances, which form exceptions to general rules.
3 Vide No. 81, in which the supposition of its being
abolished by the appellate jurisdiction in matters of fact being
vested in the Supreme Court, is examined and refuted.

 

FEDERALIST No. 84

Certain General and Miscellaneous Objections to the Constitution
Considered and Answered
From McLEAN’s Edition, New York.

HAMILTON

To the People of the State of New York:
IN THE course of the foregoing review of the Constitution, I
have taken notice of, and endeavored to answer most of the
objections which have appeared against it. There, however, remain a
few which either did not fall naturally under any particular head or
were forgotten in their proper places. These shall now be
discussed; but as the subject has been drawn into great length, I
shall so far consult brevity as to comprise all my observations on
these miscellaneous points in a single paper.
The most considerable of the remaining objections is that the
plan of the convention contains no bill of rights. Among other
answers given to this, it has been upon different occasions remarked
that the constitutions of several of the States are in a similar
predicament. I add that New York is of the number. And yet the
opposers of the new system, in this State, who profess an unlimited
admiration for its constitution, are among the most intemperate
partisans of a bill of rights. To justify their zeal in this
matter, they allege two things: one is that, though the
constitution of New York has no bill of rights prefixed to it, yet
it contains, in the body of it, various provisions in favor of
particular privileges and rights, which, in substance amount to the
same thing; the other is, that the Constitution adopts, in their
full extent, the common and statute law of Great Britain, by which
many other rights, not expressed in it, are equally secured.
To the first I answer, that the Constitution proposed by the
convention contains, as well as the constitution of this State, a
number of such provisions.
Independent of those which relate to the structure of the
government, we find the following: Article 1, section 3, clause 7
“Judgment in cases of impeachment shall not extend further than to
removal from office, and disqualification to hold and enjoy any
office of honor, trust, or profit under the United States; but the
party convicted shall, nevertheless, be liable and subject to
indictment, trial, judgment, and punishment according to law.”
Section 9, of the same article, clause 2 “The privilege of the
writ of habeas corpus shall not be suspended, unless when in
cases of rebellion or invasion the public safety may require it.”
Clause 3 “No bill of attainder or ex-post-facto law shall be
passed.” Clause 7 “No title of nobility shall be granted by the
United States; and no person holding any office of profit or trust
under them, shall, without the consent of the Congress, accept of
any present, emolument, office, or title of any kind whatever, from
any king, prince, or foreign state.” Article 3, section 2, clause
3 “The trial of all crimes, except in cases of impeachment, shall
be by jury; and such trial shall be held in the State where the
said crimes shall have been committed; but when not committed
within any State, the trial shall be at such place or places as the
Congress may by law have directed.” Section 3, of the same
article “Treason against the United States shall consist only in
levying war against them, or in adhering to their enemies, giving
them aid and comfort. No person shall be convicted of treason,
unless on the testimony of two witnesses to the same overt act, or
on confession in open court.” And clause 3, of the same
section “The Congress shall have power to declare the punishment of
treason; but no attainder of treason shall work corruption of
blood, or forfeiture, except during the life of the person attainted.”
It may well be a question, whether these are not, upon the
whole, of equal importance with any which are to be found in the
constitution of this State. The establishment of the writ of
habeas corpus, the prohibition of ex-post-facto laws, and of
TITLES OF NOBILITY, TO WHICH WE HAVE NO CORRESPONDING PROVISION IN
OUR CONSTITUTION, are perhaps greater securities to liberty and
republicanism than any it contains. The creation of crimes after
the commission of the fact, or, in other words, the subjecting of
men to punishment for things which, when they were done, were
breaches of no law, and the practice of arbitrary imprisonments,
have been, in all ages, the favorite and most formidable instruments
of tyranny. The observations of the judicious Blackstone,1 in
reference to the latter, are well worthy of recital: “To bereave a
man of life, Usays he,e or by violence to confiscate his estate,
without accusation or trial, would be so gross and notorious an act
of despotism, as must at once convey the alarm of tyranny throughout
the whole nation; but confinement of the person, by secretly
hurrying him to jail, where his sufferings are unknown or forgotten,
is a less public, a less striking, and therefore A MORE DANGEROUS
ENGINE of arbitrary government.” And as a remedy for this fatal
evil he is everywhere peculiarly emphatical in his encomiums on the
habeas-corpus act, which in one place he calls “the BULWARK of
the British Constitution.”2
Nothing need be said to illustrate the importance of the
prohibition of titles of nobility. This may truly be denominated
the corner-stone of republican government; for so long as they are
excluded, there can never be serious danger that the government will
be any other than that of the people.
To the second that is, to the pretended establishment of the
common and state law by the Constitution, I answer, that they are
expressly made subject “to such alterations and provisions as the
legislature shall from time to time make concerning the same.”
They are therefore at any moment liable to repeal by the ordinary
legislative power, and of course have no constitutional sanction.
The only use of the declaration was to recognize the ancient law
and to remove doubts which might have been occasioned by the
Revolution. This consequently can be considered as no part of a
declaration of rights, which under our constitutions must be
intended as limitations of the power of the government itself.
It has been several times truly remarked that bills of rights
are, in their origin, stipulations between kings and their subjects,
abridgements of prerogative in favor of privilege, reservations of
rights not surrendered to the prince. Such was MAGNA CHARTA,
obtained by the barons, sword in hand, from King John. Such were
the subsequent confirmations of that charter by succeeding princes.
Such was the PETITION OF RIGHT assented to by Charles I., in the
beginning of his reign. Such, also, was the Declaration of Right
presented by the Lords and Commons to the Prince of Orange in 1688,
and afterwards thrown into the form of an act of parliament called
the Bill of Rights. It is evident, therefore, that, according to
their primitive signification, they have no application to
constitutions professedly founded upon the power of the people, and
executed by their immediate representatives and servants. Here, in
strictness, the people surrender nothing; and as they retain every
thing they have no need of particular reservations. “WE, THE
PEOPLE of the United States, to secure the blessings of liberty to
ourselves and our posterity, do ORDAIN and ESTABLISH this
Constitution for the United States of America.” Here is a better
recognition of popular rights, than volumes of those aphorisms which
make the principal figure in several of our State bills of rights,
and which would sound much better in a treatise of ethics than in a
constitution of government.
But a minute detail of particular rights is certainly far less
applicable to a Constitution like that under consideration, which is
merely intended to regulate the general political interests of the
nation, than to a constitution which has the regulation of every
species of personal and private concerns. If, therefore, the loud
clamors against the plan of the convention, on this score, are well
founded, no epithets of reprobation will be too strong for the
constitution of this State. But the truth is, that both of them
contain all which, in relation to their objects, is reasonably to be
desired.
I go further, and affirm that bills of rights, in the sense and
to the extent in which they are contended for, are not only
unnecessary in the proposed Constitution, but would even be
dangerous. They would contain various exceptions to powers not
granted; and, on this very account, would afford a colorable
pretext to claim more than were granted. For why declare that
things shall not be done which there is no power to do? Why, for
instance, should it be said that the liberty of the press shall not
be restrained, when no power is given by which restrictions may be
imposed? I will not contend that such a provision would confer a
regulating power; but it is evident that it would furnish, to men
disposed to usurp, a plausible pretense for claiming that power.
They might urge with a semblance of reason, that the Constitution
ought not to be charged with the absurdity of providing against the
abuse of an authority which was not given, and that the provision
against restraining the liberty of the press afforded a clear
implication, that a power to prescribe proper regulations concerning
it was intended to be vested in the national government. This may
serve as a specimen of the numerous handles which would be given to
the doctrine of constructive powers, by the indulgence of an
injudicious zeal for bills of rights.
On the subject of the liberty of the press, as much as has been
said, I cannot forbear adding a remark or two: in the first place,
I observe, that there is not a syllable concerning it in the
constitution of this State; in the next, I contend, that whatever
has been said about it in that of any other State, amounts to
nothing. What signifies a declaration, that “the liberty of the
press shall be inviolably preserved”? What is the liberty of the
press? Who can give it any definition which would not leave the
utmost latitude for evasion? I hold it to be impracticable; and
from this I infer, that its security, whatever fine declarations may
be inserted in any constitution respecting it, must altogether
depend on public opinion, and on the general spirit of the people
and of the government.3 And here, after all, as is intimated
upon another occasion, must we seek for the only solid basis of all
our rights.
There remains but one other view of this matter to conclude the
point. The truth is, after all the declamations we have heard, that
the Constitution is itself, in every rational sense, and to every
useful purpose, A BILL OF RIGHTS. The several bills of rights in
Great Britain form its Constitution, and conversely the constitution
of each State is its bill of rights. And the proposed Constitution,
if adopted, will be the bill of rights of the Union. Is it one
object of a bill of rights to declare and specify the political
privileges of the citizens in the structure and administration of
the government? This is done in the most ample and precise manner
in the plan of the convention; comprehending various precautions
for the public security, which are not to be found in any of the
State constitutions. Is another object of a bill of rights to
define certain immunities and modes of proceeding, which are
relative to personal and private concerns? This we have seen has
also been attended to, in a variety of cases, in the same plan.
Adverting therefore to the substantial meaning of a bill of rights,
it is absurd to allege that it is not to be found in the work of the
convention. It may be said that it does not go far enough, though
it will not be easy to make this appear; but it can with no
propriety be contended that there is no such thing. It certainly
must be immaterial what mode is observed as to the order of
declaring the rights of the citizens, if they are to be found in any
part of the instrument which establishes the government. And hence
it must be apparent, that much of what has been said on this subject
rests merely on verbal and nominal distinctions, entirely foreign
from the substance of the thing.
Another objection which has been made, and which, from the
frequency of its repetition, it is to be presumed is relied on, is
of this nature: “It is improper Usay the objectorse to confer such
large powers, as are proposed, upon the national government, because
the seat of that government must of necessity be too remote from
many of the States to admit of a proper knowledge on the part of the
constituent, of the conduct of the representative body.” This
argument, if it proves any thing, proves that there ought to be no
general government whatever. For the powers which, it seems to be
agreed on all hands, ought to be vested in the Union, cannot be
safely intrusted to a body which is not under every requisite
control. But there are satisfactory reasons to show that the
objection is in reality not well founded. There is in most of the
arguments which relate to distance a palpable illusion of the
imagination. What are the sources of information by which the
people in Montgomery County must regulate their judgment of the
conduct of their representatives in the State legislature? Of
personal observation they can have no benefit. This is confined to
the citizens on the spot. They must therefore depend on the
information of intelligent men, in whom they confide; and how must
these men obtain their information? Evidently from the complexion
of public measures, from the public prints, from correspondences
with theirrepresentatives, and with other persons who reside at the
place of their deliberations. This does not apply to Montgomery
County only, but to all the counties at any considerable distance
from the seat of government.
It is equally evident that the same sources of information would
be open to the people in relation to the conduct of their
representatives in the general government, and the impediments to a
prompt communication which distance may be supposed to create, will
be overbalanced by the effects of the vigilance of the State
governments. The executive and legislative bodies of each State
will be so many sentinels over the persons employed in every
department of the national administration; and as it will be in
their power to adopt and pursue a regular and effectual system of
intelligence, they can never be at a loss to know the behavior of
those who represent their constituents in the national councils, and
can readily communicate the same knowledge to the people. Their
disposition to apprise the community of whatever may prejudice its
interests from another quarter, may be relied upon, if it were only
from the rivalship of power. And we may conclude with the fullest
assurance that the people, through that channel, will be better
informed of the conduct of their national representatives, than they
can be by any means they now possess of that of their State
representatives.
It ought also to be remembered that the citizens who inhabit the
country at and near the seat of government will, in all questions
that affect the general liberty and prosperity, have the same
interest with those who are at a distance, and that they will stand
ready to sound the alarm when necessary, and to point out the actors
in any pernicious project. The public papers will be expeditious
messengers of intelligence to the most remote inhabitants of the
Union.
Among the many curious objections which have appeared against
the proposed Constitution, the most extraordinary and the least
colorable is derived from the want of some provision respecting the
debts due TO the United States. This has been represented as a
tacit relinquishment of those debts, and as a wicked contrivance to
screen public defaulters. The newspapers have teemed with the most
inflammatory railings on this head; yet there is nothing clearer
than that the suggestion is entirely void of foundation, the
offspring of extreme ignorance or extreme dishonesty. In addition
to the remarks I have made upon the subject in another place, I
shall only observe that as it is a plain dictate of common-sense, so
it is also an established doctrine of political law, that “STATES
NEITHER LOSE ANY OF THEIR RIGHTS, NOR ARE DISCHARGED FROM ANY OF
THEIR OBLIGATIONS, BY A CHANGE IN THE FORM OF THEIR CIVIL GOVERNMENT.”4
The last objection of any consequence, which I at present
recollect, turns upon the article of expense. If it were even true,
that the adoption of the proposed government would occasion a
considerable increase of expense, it would be an objection that
ought to have no weight against the plan.
The great bulk of 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
alterations; that new and extensive powers ought to be granted to
the national head, and that these require a different organization
of the federal government a single body being an unsafe depositary
of such ample authorities. In conceding all this, the question of
expense must be given up; for it is impossible, with any degree of
safety, to narrow the foundation upon which the system is to stand.
The two branches of the legislature are, in the first instance, to
consist of only sixty-five persons, which is the same number of
which Congress, under the existing Confederation, may be composed.
It is true that this number is intended to be increased; but this
is to keep pace with the progress of the population and resources of
the country. It is evident that a less number would, even in the
first instance, have been unsafe, and that a continuance of the
present number would, in a more advanced stage of population, be a
very inadequate representation of the people.
Whence is the dreaded augmentation of expense to spring? One
source indicated, is the multiplication of offices under the new
government. Let us examine this a little.
It is evident that the principal departments of the
administration under the present government, are the same which will
be required under the new. There are now a Secretary of War, a
Secretary of Foreign Affairs, a Secretary for Domestic Affairs, a
Board of Treasury, consisting of three persons, a Treasurer,
assistants, clerks, etc. These officers are indispensable under any
system, and will suffice under the new as well as the old. As to
ambassadors and other ministers and agents in foreign countries, the
proposed Constitution can make no other difference than to render
their characters, where they reside, more respectable, and their
services more useful. As to persons to be employed in the
collection of the revenues, it is unquestionably true that these
will form a very considerable addition to the number of federal
officers; but it will not follow that this will occasion an
increase of public expense. It will be in most cases nothing more
than an exchange of State for national officers. In the collection
of all duties, for instance, the persons employed will be wholly of
the latter description. The States individually will stand in no
need of any for this purpose. What difference can it make in point
of expense to pay officers of the customs appointed by the State or
by the United States? 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 articles of
expense which are to swell the account to the enormous size that has
been represented to us? The chief item which occurs to me respects
the support of the judges of the United States. I do not add the
President, because there is now a president of Congress, whose
expenses may not be far, if any thing, short of those which will be
incurred on account of the President of the United States. The
support of the judges will clearly be an extra expense, but to what
extent will depend on the particular plan which may be adopted in
regard to this matter. But upon no reasonable plan can it amount to
a sum which will be an object of material consequence.
Let us now see what there is to counterbalance any extra expense
that may attend the establishment of the proposed government. The
first thing which presents itself is that a great part of the
business which now keeps Congress sitting through the year will be
transacted by the President. Even the management of foreign
negotiations will naturally devolve upon him, according to general
principles concerted with the Senate, and subject to their final
concurrence. Hence it is evident that a portion of the year will
suffice for the session of both the Senate and the House of
Representatives; we may suppose about a fourth for the latter and a
third, or perhaps half, for the former. The extra business of
treaties and appointments may give this extra occupation to the
Senate. From this circumstance we may infer that, until the House
of Representatives shall be increased greatly beyond its present
number, there will be a considerable saving of expense from the
difference between the constant session of the present and the
temporary session of the future Congress.
But there is another circumstance of great importance in the
view of economy. The business of the United States has hitherto
occupied the State legislatures, as well as Congress. The latter
has made requisitions which the former have had to provide for.
Hence it has happened that the sessions of the State legislatures
have been protracted greatly beyond what was necessary for the
execution of the mere local business of the States. More than half
their time has been frequently employed in matters which related to
the United States. Now the members who compose the legislatures of
the several States amount to two thousand and upwards, which number
has hitherto performed what under the new system will be done in the
first instance by sixty-five persons, and probably at no future
period by above a fourth or fifth of that number. The Congress
under the proposed government will do all the business of the United
States themselves, without the intervention of the State
legislatures, who thenceforth will have only to attend to the
affairs of their particular States, and will not have to sit in any
proportion as long as they have heretofore done. This difference in
the time of the sessions of the State legislatures will be clear
gain, and will alone form an article of saving, which may be
regarded as an equivalent for any additional objects of expense that
may be occasioned by the adoption of the new system.
The result from these observations is that the sources of
additional expense from the establishment of the proposed
Constitution are much fewer than may have been imagined; that they
are counterbalanced by considerable objects of saving; and that
while it is questionable on which side the scale will preponderate,
it is certain that a government less expensive would be incompetent
to the purposes of the Union.
PUBLIUS.
1. Vide Blackstone’s “Commentaries,” vol. 1., p. 136.
2. Vide Blackstone’s “Commentaries,” vol. iv., p. 438.
3. To show that there is a power in the Constitution by which
the liberty of the press may be affected, recourse has been had to
the power of taxation. It is said that duties may be laid upon the
publications so high as to amount to a prohibition. I know not by
what logic it could be maintained, that the declarations in the
State constitutions, in favor of the freedom of the press, would be
a constitutional impediment to the imposition of duties upon
publications by the State legislatures. It cannot certainly be
pretended that any degree of duties, however low, would be an
abridgment of the liberty of the press. We know that newspapers
are taxed in Great Britain, and yet it is notorious that the press
nowhere enjoys greater liberty than in that country. And if duties
of any kind may be laid without a violation of that liberty, it is
evident that the extent must depend on legislative discretion,
respecting the liberty of the press, will give it no greater
security than it will have without them. The same invasions of it
may be effected under the State constitutions which contain those
declarations through the means of taxation, as under the proposed
Constitution, which has nothing of the kind. It would be quite as
significant to declare that government ought to be free, that taxes
ought not to be excessive, etc., as that the liberty of the press
ought not to be restrained.

 

FEDERALIST No. 85

Concluding Remarks
From MCLEAN’s Edition, New York.

HAMILTON

To the People of the State of New York:
ACCORDING to the formal division of the subject of these papers,
announced in my first number, there would appear still to remain for
discussion two points: “the analogy of the proposed government to
your own State constitution,” and “the additional security which
its adoption will afford to republican government, to liberty, and
to property.” But these heads have been so fully anticipated and
exhausted in the progress of the work, that it would now scarcely be
possible to do any thing more than repeat, in a more dilated form,
what has been heretofore said, which the advanced stage of the
question, and the time already spent upon it, conspire to forbid.
It is remarkable, that the resemblance of the plan of the
convention to the act which organizes the government of this State
holds, not less with regard to many of the supposed defects, than to
the real excellences of the former. Among the pretended defects are
the re-eligibility of the Executive, the want of a council, the
omission of a formal bill of rights, the omission of a provision
respecting the liberty of the press. These and several others which
have been noted in the course of our inquiries are as much
chargeable on the existing constitution of this State, as on the one
proposed for the Union; and a man must have slender pretensions to
consistency, who can rail at the latter for imperfections which he
finds no difficulty in excusing in the former. Nor indeed can there
be a better proof of the insincerity and affectation of some of the
zealous adversaries of the plan of the convention among us, who
profess to be the devoted admirers of the government under which
they live, than the fury with which they have attacked that plan,
for matters in regard to which our own constitution is equally or
perhaps more vulnerable.
The additional securities to republican government, to liberty
and to property, to be derived from the adoption of the plan under
consideration, consist chiefly in the restraints which the
preservation of the Union will impose on local factions and
insurrections, and on the ambition of powerful individuals in single
States, who may acquire credit and influence enough, from leaders
and favorites, to become the despots of the people; in the
diminution of the opportunities to foreign intrigue, which the
dissolution of the Confederacy would invite and facilitate; in the
prevention of extensive military establishments, which could not
fail to grow out of wars between the States in a disunited
situation; in the express guaranty of a republican form of
government to each; in the absolute and universal exclusion of
titles of nobility; and in the precautions against the repetition
of those practices on the part of the State governments which have
undermined the foundations of property and credit, have planted
mutual distrust in the breasts of all classes of citizens, and have
occasioned an almost universal prostration of morals.
Thus have I, fellow-citizens, executed the task I had assigned
to myself; with what success, your conduct must determine. I trust
at least you will admit that I have not failed in the assurance I
gave you respecting the spirit with which my endeavors should be
conducted. I have addressed myself purely to your judgments, and
have studiously avoided those asperities which are too apt to
disgrace political disputants of all parties, and which have been
not a little provoked by the language and conduct of the opponents
of the Constitution. The charge of a conspiracy against the
liberties of the people, which has been indiscriminately brought
against the advocates of the plan, has something in it too wanton
and too malignant, not to excite the indignation of every man who
feels in his own bosom a refutation of the calumny. The perpetual
changes which have been rung upon the wealthy, the well-born, and
the great, have been such as to inspire the disgust of all sensible
men. And the unwarrantable concealments and misrepresentations
which have been in various ways practiced to keep the truth from the
public eye, have been of a nature to demand the reprobation of all
honest men. It is not impossible that these circumstances may have
occasionally betrayed me into intemperances of expression which I
did not intend; it is certain that I have frequently felt a
struggle between sensibility and moderation; and if the former has
in some instances prevailed, it must be my excuse that it has been
neither often nor much.
Let us now pause and ask ourselves whether, in the course of
these papers, the proposed Constitution has not been satisfactorily
vindicated from the aspersions thrown upon it; and whether it has
not been shown to be worthy of the public approbation, and necessary
to the public safety and prosperity. Every man is bound to answer
these questions to himself, according to the best of his conscience
and understanding, and to act agreeably to the genuine and sober
dictates of his judgment. This is a duty from which nothing can
give him a dispensation. ‘T is one that he is called upon, nay,
constrained by all the obligations that form the bands of society,
to discharge sincerely and honestly. No partial motive, no
particular interest, no pride of opinion, no temporary passion or
prejudice, will justify to himself, to his country, or to his
posterity, an improper election of the part he is to act. Let him
beware of an obstinate adherence to party; let him reflect that the
object upon which he is to decide is not a particular interest of
the community, but the very existence of the nation; and let him
remember that a majority of America has already given its sanction
to the plan which he is to approve or reject.
I shall not dissemble that I feel an entire confidence in the
arguments which recommend the proposed system to your adoption, and
that I am unable to discern any real force in those by which it has
been opposed. I am persuaded that it is the best which our
political situation, habits, and opinions will admit, and superior
to any the revolution has produced.
Concessions on the part of the friends of the plan, that it has
not a claim to absolute perfection, have afforded matter of no small
triumph to its enemies. “Why,” say they, “should we adopt an
imperfect thing? Why not amend it and make it perfect before it is
irrevocably established?” This may be plausible enough, but it is
only plausible. In the first place I remark, that the extent of
these concessions has been greatly exaggerated. They have been
stated as amounting to an admission that the plan is radically
defective, and that without material alterations the rights and the
interests of the community cannot be safely confided to it. This,
as far as I have understood the meaning of those who make the
concessions, is an entire perversion of their sense. No advocate of
the measure can be found, who will not declare as his sentiment,
that the system, though it may not be perfect in every part, is,
upon the whole, a good one; is the best that the present views and
circumstances of the country will permit; and is such an one as
promises every species of security which a reasonable people can
desire.
I answer in the next place, that I should esteem it the extreme
of imprudence to prolong the precarious state of our national
affairs, and to expose the Union to the jeopardy of successive
experiments, in the chimerical pursuit of a perfect plan. I never
expect to see a perfect work from imperfect man. The result of the
deliberations of all collective bodies must necessarily be a
compound, as well of the errors and prejudices, as of the good sense
and wisdom, of the individuals of whom they are composed. The
compacts which are to embrace thirteen distinct States in a common
bond of amity and union, must as necessarily be a compromise of as
many dissimilar interests and inclinations. How can perfection
spring from such materials?
The reasons assigned in an excellent little pamphlet lately
published in this city,1 are unanswerable to show the utter
improbability of assembling a new convention, under circumstances in
any degree so favorable to a happy issue, as those in which the late
convention met, deliberated, and concluded. I will not repeat the
arguments there used, as I presume the production itself has had an
extensive circulation. It is certainly well worthy the perusal of
every friend to his country. There is, however, one point of light
in which the subject of amendments still remains to be considered,
and in which it has not yet been exhibited to public view. I cannot
resolve to conclude without first taking a survey of it in this
aspect.
It appears to me susceptible of absolute demonstration, that it
will be far more easy to obtain subsequent than previous amendments
to the Constitution. The moment an alteration is made in the
present plan, it becomes, to the purpose of adoption, a new one, and
must undergo a new decision of each State. To its complete
establishment throughout the Union, it will therefore require the
concurrence of thirteen States. If, on the contrary, the
Constitution proposed should once be ratified by all the States as
it stands, alterations in it may at any time be effected by nine
States. Here, then, the chances are as thirteen to nine2 in
favor of subsequent amendment, rather than of the original adoption
of an entire system.
This is not all. Every Constitution for the United States must
inevitably consist of a great variety of particulars, in which
thirteen independent States are to be accommodated in their
interests or opinions of interest. We may of course expect to see,
in any body of men charged with its original formation, very
different combinations of the parts upon different points. Many of
those who form a majority on one question, may become the minority
on a second, and an association dissimilar to either may constitute
the majority on a third. Hence the necessity of moulding and
arranging all the particulars which are to compose the whole, in
such a manner as to satisfy all the parties to the compact; and
hence, also, an immense multiplication of difficulties and
casualties in obtaining the collective assent to a final act. The
degree of that multiplication must evidently be in a ratio to the
number of particulars and the number of parties.
But every amendment to the Constitution, if once established,
would be a single proposition, and might be brought forward singly.
There would then be no necessity for management or compromise, in
relation to any other point no giving nor taking. The will of the
requisite number would at once bring the matter to a decisive issue.
And consequently, whenever nine, or rather ten States, were united
in the desire of a particular amendment, that amendment must
infallibly take place. There can, therefore, be no comparison
between the facility of affecting an amendment, and that of
establishing in the first instance a complete Constitution.
In opposition to the probability of subsequent amendments, it
has been urged that the persons delegated to the administration of
the national government will always be disinclined to yield up any
portion of the authority of which they were once possessed. For my
own part I acknowledge a thorough conviction that any amendments
which may, upon mature consideration, be thought useful, will be
applicable to the organization of the government, not to the mass of
its powers; and on this account alone, I think there is no weight
in the observation just stated. I also think there is little weight
in it on another account. The intrinsic difficulty of governing
thirteen States at any rate, independent of calculations upon an
ordinary degree of public spirit and integrity, will, in my opinion
constantly impose on the national rulers the necessity of a spirit
of accommodation to the reasonable expectations of their
constituents. But there is yet a further consideration, which
proves beyond the possibility of a doubt, that the observation is
futile. It is this that the national rulers, whenever nine States
concur, will have no option upon the subject. By the fifth article
of the plan, the Congres will be obliged “on the application of the
legislatures of two thirds of the States Uwhich at present amount to
ninee, to call a convention for proposing amendments, which shall be
valid, to all intents and purposes, as part of the Constitution,
when ratified by the legislatures of three fourths of the States, or
by conventions in three fourths thereof.” The words of this
article are peremptory. The Congress “shall call a convention.”
Nothing in this particular is left to the discretion of that body.
And of consequence, all the declamation about the disinclination to
a change vanishes in air. Nor however difficult it may be supposed
to unite two thirds or three fourths of the State legislatures, in
amendments which may affect local interests, can there be any room
to apprehend any such difficulty in a union on points which are
merely relative to the general liberty or security of the people.
We may safely rely on the disposition of the State legislatures to
erect barriers against the encroachments of the national authority.
If the foregoing argument is a fallacy, certain it is that I am
myself deceived by it, for it is, in my conception, one of those
rare instances in which a political truth can be brought to the test
of a mathematical demonstration. Those who see the matter in the
same light with me, however zealous they may be for amendments, must
agree in the propriety of a previous adoption, as the most direct
road to their own object.
The zeal for attempts to amend, prior to the establishment of
the Constitution, must abate in every man who is ready to accede to
the truth of the following observations of a writer equally solid
and ingenious: “To balance a large state or society Usays hee,
whether monarchical or republican, on general laws, is a work of so
great difficulty, that no human genius, however comprehensive, is
able, by the mere dint of reason and reflection, to effect it. The
judgments of many must unite in the work; experience must guide
their labor; time must bring it to perfection, and the feeling of
inconveniences must correct the mistakes which they INEVITABLY fall
into in their first trials and experiments.”3 These judicious
reflections contain a lesson of moderation to all the sincere lovers
of the Union, and ought to put them upon their guard against
hazarding anarchy, civil war, a perpetual alienation of the States
from each other, and perhaps the military despotism of a victorious
demagogue, in the pursuit of what they are not likely to obtain, but
from time and experience. It may be in me a defect of political
fortitude, but I acknowledge that I cannot entertain an equal
tranquillity with those who affect to treat the dangers of a longer
continuance in our present situation as imaginary. A nation,
without a national government, is, in my view, an awful spectacle.
The establishment of a Constitution, in time of profound peace, by
the voluntary ocnsent of a whole people, is a prodigy, to the
completion of which I look forward with trembling anxiety. I can
reconcile it to no rules of prudence to let go the hold we now have,
in so arduous an enterprise, upon seven out of the thirteen States,
and after having passed over so considerable a part of the ground,
to recommence the course. I dread the more the consequences of new
attempts, because I know that powerful individuals, in this and in
other States, are enemies to a general national government in every
possible shape.
PUBLIUS.

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