THE FEDERALIST PAPERS
On the Powers of the Convention to
Form a Mixed Government
Examined and Sustained For the New York Packet.
Friday, January 18, 1788
MADISON
TABLE OF CONTENTS
To the People of the State of New York:
FEDERALIST No. 40
THE SECOND point to be examined is, whether the
convention were authorized to frame and propose this mixed Constitution.
2 The powers of the convention ought, in strictness, to
be determined by an inspection of the commissions given to the members by
their respective constituents. As all of these, however, had reference, either
to the recommendation from the meeting at Annapolis, in September, 1786, or to
that from Congress, in February, 1787, it will be sufficient to recur to these
particular acts.
3 The act from Annapolis recommends the
"appointment of commissioners to take into consideration the situation of
the United States; to devise SUCH FURTHER PROVISIONS as shall appear to them
necessary to render the Constitution of the federal government ADEQUATE TO THE
EXIGENCIES OF THE UNION; and to report such an act for that purpose, to the
United States in Congress assembled, as when agreed to by them, and afterwards
confirmed by the legislature of every State, will effectually provide for the
same."
4 The recommendatory act of Congress is in the words
following: "WHEREAS, There is provision in the articles of Confederation
and perpetual Union, for making alterations therein, by the assent of a
Congress of the United States, and of the legislatures of the several States;
and whereas experience hath evinced, that there are defects in the present
Confederation; as a mean to remedy which, several of the States, and
PARTICULARLY THE STATE OF NEW YORK, by express instructions to their delegates
in Congress, have suggested a convention for the purposes expressed in the
following resolution; and such convention appearing to be the most probable
mean of establishing in these States A FIRM NATIONAL GOVERNMENT:
5 "Resolved, That in the opinion of Congress it is
expedient, that on the second Monday of May next a convention of delegates,
who shall have been appointed by the several States, be held at Philadelphia,
for the sole and express purpose OF REVISING THE ARTICLES OF CONFEDERATION,
and reporting to Congress and the several legislatures such ALTERATIONS AND
PROVISIONS THEREIN, as shall, when agreed to in Congress, and confirmed by the
States, render the federal Constitution ADEQUATE TO THE EXIGENCIES OF
GOVERNMENT AND THE PRESERVATION OF THE UNION."
6 From these two acts, it appears, 1st, that the object
of the convention was to establish, in these States, A FIRM NATIONAL
GOVERNMENT; 2d, that this government was to be such as would be ADEQUATE TO
THE EXIGENCIES OF GOVERNMENT and THE PRESERVATION OF THE UNION; 3d, that these
purposes were to be effected by ALTERATIONS AND PROVISIONS IN THE ARTICLES OF
CONFEDERATION, as it is expressed in the act of Congress, or by SUCH FURTHER
PROVISIONS AS SHOULD APPEAR NECESSARY, as it stands in the recommendatory act
from Annapolis; 4th, that the alterations and provisions were to be reported
to Congress, and to the States, in order to be agreed to by the former and
confirmed by the latter.
7 From a comparison and fair construction of these
several modes of expression, is to be deduced the authority under which the
convention acted. They were to frame a NATIONAL GOVERNMENT, adequate to the
EXIGENCIES OF GOVERNMENT, and OF THE UNION; and to reduce the articles of
Confederation into such form as to accomplish these purposes.
8 There are two rules of construction, dictated by
plain reason, as well as founded on legal axioms. The one is, that every part
of the expression ought, if possible, to be allowed some meaning, and be made
to conspire to some common end. The other is, that where the several parts
cannot be made to coincide, the less important should give way to the more
important part; the means should be sacrificed to the end, rather than the end
to the means.
9 Suppose, then, that the expressions defining the
authority of the convention were irreconcilably at variance with each other;
that a NATIONAL and ADEQUATE GOVERNMENT could not possibly, in the judgment of
the convention, be affected by ALTERATIONS and PROVISIONS in the ARTICLES OF
CONFEDERATION; which part of the definition ought to have been embraced, and
which rejected? Which was the more important, which the less important part?
Which the end; which the means? Let the most scrupulous expositors of
delegated powers; let the most inveterate objectors against those exercised by
the convention, answer these questions. Let them declare, whether it was of
most importance to the happiness of the people of America, that the articles
of Confederation should be disregarded, and an adequate government be
provided, and the Union preserved; or that an adequate government should be
omitted, and the articles of Confederation preserved. Let them declare,
whether the preservation of these articles was the end, for securing which a
reform of the government was to be introduced as the means; or whether the
establishment of a government, adequate to the national happiness, was the end
at which these articles themselves originally aimed, and to which they ought,
as insufficient means, to have been sacrificed.
10 But is it necessary to suppose that these expressions
are absolutely irreconcilable to each other; that no ALTERATIONS or PROVISIONS
in the articles of the confederation could possibly mould them into a national
and adequate government; into such a government as has been proposed by the
convention?
11 No stress, it is presumed, will, in this case, be
laid on the TITLE; a change of that could never be deemed an exercise of
ungranted power. ALTERATIONS in the body of the instrument are expressly
authorized. NEW PROVISIONS therein are also expressly authorized. Here then is
a power to change the title; to insert new articles; to alter old ones. Must
it of necessity be admitted that this power is infringed, so long as a part of
the old articles remain? Those who maintain the affirmative ought at least to
mark the boundary between authorized and usurped innovations; between that
degree of change which lies within the compass of ALTERATIONS AND FURTHER
PROVISIONS, and that which amounts to a TRANSMUTATION of the government. Will
it be said that the alterations ought not to have touched the substance of the
Confederation? The States would never have appointed a convention with so much
solemnity, nor described its objects with so much latitude, if some
SUBSTANTIAL reform had not been in contemplation. Will it be said that the
FUNDAMENTAL PRINCIPLES of the Confederation were not within the purview of the
convention, and ought not to have been varied? I ask, What are these
principles? Do they require that, in the establishment of the Constitution,
the States should be regarded as distinct and independent sovereigns? They are
so regarded by the Constitution proposed. Do they require that the members of
the government should derive their appointment from the legislatures, not from
the people of the States? One branch of the new government is to be appointed
by these legislatures; and under the Confederation, the delegates to Congress
MAY ALL be appointed immediately by the people, and in two States[1] are
actually so appointed. Do they require that the powers of the government
should act on the States, and not immediately on individuals? In some
instances, as has been shown, the powers of the new government will act on the
States in their collective characters. In some instances, also, those of the
existing government act immediately on individuals. In cases of capture; of
piracy; of the post office; of coins, weights, and measures; of trade with the
Indians; of claims under grants of land by different States; and, above all,
in the case of trials by courts-marshal in the army and navy, by which death
may be inflicted without the intervention of a jury, or even of a civil
magistrate; in all these cases the powers of the Confederation operate
immediately on the persons and interests of individual citizens. Do these
fundamental principles require, particularly, that no tax should be levied
without the intermediate agency of the States? The Confederation itself
authorizes a direct tax, to a certain extent, on the post office. The power of
coinage has been so construed by Congress as to levy a tribute immediately
from that source also. But pretermitting these instances, was it not an
acknowledged object of the convention and the universal expectation of the
people, that the regulation of trade should be submitted to the general
government in such a form as would render it an immediate source of general
revenue? Had not Congress repeatedly recommended this measure as not
inconsistent with the fundamental principles of the Confederation? Had not
every State but one; had not New York herself, so far complied with the plan
of Congress as to recognize the PRINCIPLE of the innovation? Do these
principles, in fine, require that the powers of the general government should
be limited, and that, beyond this limit, the States should be left in
possession of their sovereignty and independence? We have seen that in the new
government, as in the old, the general powers are limited; and that the
States, in all unenumerated cases, are left in the enjoyment of their
sovereign and independent jurisdiction.
12 The truth is, that the great principles of the
Constitution proposed by the convention may be considered less as absolutely
new, than as the expansion of principles which are found in the articles of
Confederation. The misfortune under the latter system has been, that these
principles are so feeble and confined as to justify all the charges of
inefficiency which have been urged against it, and to require a degree of
enlargement which gives to the new system the aspect of an entire
transformation of the old.
13 In one particular it is admitted that the convention
have departed from the tenor of their commission. Instead of reporting a plan
requiring the confirmation OF THE LEGISLATURES OF ALL THE STATES, they have
reported a plan which is to be confirmed by the PEOPLE, and may be carried
into effect by NINE STATES ONLY. It is worthy of remark that this objection,
though the most plausible, has been the least urged in the publications which
have swarmed against the convention. The forbearance can only have proceeded
from an irresistible conviction of the absurdity of subjecting the fate of
twelve States to the perverseness or corruption of a thirteenth; from the
example of inflexible opposition given by a MAJORITY of one sixtieth of the
people of America to a measure approved and called for by the voice of twelve
States, comprising fifty-nine sixtieths of the people an example still fresh
in the memory and indignation of every citizen who has felt for the wounded
honor and prosperity of his country. As this objection, therefore, has been in
a manner waived by those who have criticised the powers of the convention, I
dismiss it without further observation.
14 The THIRD point to be inquired into is, how far
considerations of duty arising out of the case itself could have supplied any
defect of regular authority.
15 In the preceding inquiries the powers of the
convention have been analyzed and tried with the same rigor, and by the same
rules, as if they had been real and final powers for the establishment of a
Constitution for the United States. We have seen in what manner they have
borne the trial even on that supposition. It is time now to recollect that the
powers were merely advisory and recommendatory; that they were so meant by the
States, and so understood by the convention; and that the latter have
accordingly planned and proposed a Constitution which is to be of no more
consequence than the paper on which it is written, unless it be stamped with
the approbation of those to whom it is addressed. This reflection places the
subject in a point of view altogether different, and will enable us to judge
with propriety of the course taken by the convention.
16 Let us view the ground on which the convention stood.
It may be collected from their proceedings, that they were deeply and
unanimously impressed with the crisis, which had led their country almost with
one voice to make so singular and solemn an experiment for correcting the
errors of a system by which this crisis had been produced; that they were no
less deeply and unanimously convinced that such a reform as they have proposed
was absolutely necessary to effect the purposes of their appointment. It could
not be unknown to them that the hopes and expectations of the great body of
citizens, throughout this great empire, were turned with the keenest anxiety
to the event of their deliberations. They had every reason to believe that the
contrary sentiments agitated the minds and bosoms of every external and
internal foe to the liberty and prosperity of the United States. They had seen
in the origin and progress of the experiment, the alacrity with which the
PROPOSITION, made by a single State (Virginia), towards a partial amendment of
the Confederation, had been attended to and promoted. They had seen the
LIBERTY ASSUMED by a VERY FEW deputies from a VERY FEW States, convened at
Annapolis, of recommending a great and critical object, wholly foreign to
their commission, not only justified by the public opinion, but actually
carried into effect by twelve out of the thirteen States. They had seen, in a
variety of instances, assumptions by Congress, not only of recommendatory, but
of operative, powers, warranted, in the public estimation, by occasions and
objects infinitely less urgent than those by which their conduct was to be
governed. They must have reflected, that in all great changes of established
governments, forms ought to give way to substance; that a rigid adherence in
such cases to the former, would render nominal and nugatory the transcendent
and precious right of the people to "abolish or alter their governments
as to them shall seem most likely to effect their safety and
happiness,"[2] since it is impossible for the people spontaneously and
universally to move in concert towards their object; and it is therefore
essential that such changes be instituted by some INFORMAL AND UNAUTHORIZED
PROPOSITIONS, made by some patriotic and respectable citizen or number of
citizens. They must have recollected that it was by this irregular and assumed
privilege of proposing to the people plans for their safety and happiness,
that the States were first united against the danger with which they were
threatened by their ancient government; that committees and congresses were
formed for concentrating their efforts and defending their rights; and that
CONVENTIONS were ELECTED in THE SEVERAL STATES for establishing the
constitutions under which they are now governed; nor could it have been
forgotten that no little ill-timed scruples, no zeal for adhering to ordinary
forms, were anywhere seen, except in those who wished to indulge, under these
masks, their secret enmity to the substance contended for. They must have
borne in mind, that as the plan to be framed and proposed was to be submitted
TO THE PEOPLE THEMSELVES, the disapprobation of this supreme authority would
destroy it forever; its approbation blot out antecedent errors and
irregularities. It might even have occurred to them, that where a disposition
to cavil prevailed, their neglect to execute the degree of power vested in
them, and still more their recommendation of any measure whatever, not
warranted by their commission, would not less excite animadversion, than a
recommendation at once of a measure fully commensurate to the national
exigencies.
17 Had the convention, under all these impressions, and
in the midst of all these considerations, instead of exercising a manly
confidence in their country, by whose confidence they had been so peculiarly
distinguished, and of pointing out a system capable, in their judgment, of
securing its happiness, taken the cold and sullen resolution of disappointing
its ardent hopes, of sacrificing substance to forms, of committing the dearest
interests of their country to the uncertainties of delay and the hazard of
events, let me ask the man who can raise his mind to one elevated conception,
who can awaken in his bosom one patriotic emotion, what judgment ought to have
been pronounced by the impartial world, by the friends of mankind, by every
virtuous citizen, on the conduct and character of this assembly? Or if there
be a man whose propensity to condemn is susceptible of no control, let me then
ask what sentence he has in reserve for the twelve States who USURPED THE
POWER of sending deputies to the convention, a body utterly unknown to their
constitutions; for Congress, who recommended the appointment of this body,
equally unknown to the Confederation; and for the State of New York, in
particular, which first urged and then complied with this unauthorized
interposition?
18 But that the objectors may be disarmed of every
pretext, it shall be granted for a moment that the convention were neither
authorized by their commission, nor justified by circumstances in proposing a
Constitution for their country: does it follow that the Constitution ought,
for that reason alone, to be rejected? If, according to the noble precept, it
be lawful to accept good advice even from an enemy, shall we set the ignoble
example of refusing such advice even when it is offered by our friends? The
prudent inquiry, in all cases, ought surely to be, not so much FROM WHOM the
advice comes, as whether the advice be GOOD.
19 The sum of what has been here advanced and proved is,
that the charge against the convention of exceeding their powers, except in
one instance little urged by the objectors, has no foundation to support it;
that if they had exceeded their powers, they were not only warranted, but
required, as the confidential servants of their country, by the circumstances
in which they were placed, to exercise the liberty which they assume; and that
finally, if they had violated both their powers and their obligations, in
proposing a Constitution, this ought nevertheless to be embraced, if it be
calculated to accomplish the views and happiness of the people of America. How
far this character is due to the Constitution, is the subject under
investigation.
PUBLIUS
1. Connecticut and Rhode Island.
2. Declaration of Independence.
FEDERALIST No. 41
General View of the Powers Conferred
by The Constitution For the Independent Journal.
Saturday, January 19, 1788
MADISON
To the People of the State of New York:
THE Constitution proposed by the convention may be
considered under two general points of view. The FIRST relates to the sum or
quantity of power which it vests in the government, including the restraints
imposed on the States. The SECOND, to the particular structure of the
government, and the distribution of this power among its several branches.
2 Under the FIRST view of the subject, two important
questions arise: 1. Whether any part of the powers transferred to the general
government be unnecessary or improper? 2. Whether the entire mass of them be
dangerous to the portion of jurisdiction left in the several States?
3 Is the aggregate power of the general government
greater than ought to have been vested in it? This is the FIRST question.
4 It cannot have escaped those who have attended with
candor to the arguments employed against the extensive powers of the
government, that the authors of them have very little considered how far these
powers were necessary means of attaining a necessary end. They have chosen
rather to dwell on the inconveniences which must be unavoidably blended with
all political advantages; and on the possible abuses which must be incident to
every power or trust, of which a beneficial use can be made. This method of
handling the subject cannot impose on the good sense of the people of America.
It may display the subtlety of the writer; it may open a boundless field for
rhetoric and declamation; it may inflame the passions of the unthinking, and
may confirm the prejudices of the misthinking: but cool and candid people will
at once reflect, that the purest of human blessings must have a portion of
alloy in them; that the choice must always be made, if not of the lesser evil,
at least of the GREATER, not the PERFECT, good; and that in every political
institution, a power to advance the public happiness involves a discretion
which may be misapplied and abused. They will see, therefore, that in all
cases where power is to be conferred, the point first to be decided is,
whether such a power be necessary to the public good; as the next will be, in
case of an affirmative decision, to guard as effectually as possible against a
perversion of the power to the public detriment.
5 That we may form a correct judgment on this subject,
it will be proper to review the several powers conferred on the government of
the Union; and that this may be the more conveniently done they may be reduced
into different classes as they relate to the following different objects: 1.
Security against foreign danger; 2. Regulation of the intercourse with foreign
nations; 3. Maintenance of harmony and proper intercourse among the States; 4.
Certain miscellaneous objects of general utility; 5. Restraint of the States
from certain injurious acts; 6. Provisions for giving due efficacy to all
these powers.
6 The powers falling within the FIRST class are those
of declaring war and granting letters of marque; of providing armies and
fleets; of regulating and calling forth the militia; of levying and borrowing
money.
7 Security against foreign danger is one of the
primitive objects of civil society. It is an avowed and essential object of
the American Union. The powers requisite for attaining it must be effectually
confided to the federal councils.
8 Is the power of declaring war necessary? No man will
answer this question in the negative. It would be superfluous, therefore, to
enter into a proof of the affirmative. The existing Confederation establishes
this power in the most ample form.
9 Is the power of raising armies and equipping fleets
necessary? This is involved in the foregoing power. It is involved in the
power of self-defense.
10 But was it necessary to give an INDEFINITE POWER of
raising TROOPS, as well as providing fleets; and of maintaining both in PEACE,
as well as in WAR?
11 The answer to these questions has been too far
anticipated in another place to admit an extensive discussion of them in this
place. The answer indeed seems to be so obvious and conclusive as scarcely to
justify such a discussion in any place. With what color of propriety could the
force necessary for defense be limited by those who cannot limit the force of
offense? If a federal Constitution could chain the ambition or set bounds to
the exertions of all other nations, then indeed might it prudently chain the
discretion of its own government, and set bounds to the exertions for its own
safety.
12 How could a readiness for war in time of peace be
safely prohibited, unless we could prohibit, in like manner, the preparations
and establishments of every hostile nation? The means of security can only be
regulated by the means and the danger of attack. They will, in fact, be ever
determined by these rules, and by no others. It is in vain to oppose
constitutional barriers to the impulse of self-preservation. It is worse than
in vain; because it plants in the Constitution itself necessary usurpations of
power, every precedent of which is a germ of unnecessary and multiplied
repetitions. If one nation maintains constantly a disciplined army, ready for
the service of ambition or revenge, it obliges the most pacific nations who
may be within the reach of its enterprises to take corresponding precautions.
The fifteenth century was the unhappy epoch of military establishments in the
time of peace. They were introduced by Charles VII. of France. All Europe has
followed, or been forced into, the example. Had the example not been followed
by other nations, all Europe must long ago have worn the chains of a universal
monarch. Were every nation except France now to disband its peace
establishments, the same event might follow. The veteran legions of Rome were
an overmatch for the undisciplined valor of all other nations and rendered her
the mistress of the world.
13 Not the less true is it, that the liberties of Rome
proved the final victim to her military triumphs; and that the liberties of
Europe, as far as they ever existed, have, with few exceptions, been the price
of her military establishments. A standing force, therefore, is a dangerous,
at the same time that it may be a necessary, provision. On the smallest scale
it has its inconveniences. On an extensive scale its consequences may be
fatal. On any scale it is an object of laudable circumspection and precaution.
A wise nation will combine all these considerations; and, whilst it does not
rashly preclude itself from any resource which may become essential to its
safety, will exert all its prudence in diminishing both the necessity and the
danger of resorting to one which may be inauspicious to its liberties.
14 The clearest marks of this prudence are stamped on
the proposed Constitution. The Union itself, which it cements and secures,
destroys every pretext for a military establishment which could be dangerous.
America united, with a handful of troops, or without a single soldier,
exhibits a more forbidding posture to foreign ambition than America disunited,
with a hundred thousand veterans ready for combat. It was remarked, on a
former occasion, that the want of this pretext had saved the liberties of one
nation in Europe. Being rendered by her insular situation and her maritime
resources impregnable to the armies of her neighbors, the rulers of Great
Britain have never been able, by real or artificial dangers, to cheat the
public into an extensive peace establishment. The distance of the United
States from the powerful nations of the world gives them the same happy
security. A dangerous establishment can never be necessary or plausible, so
long as they continue a united people. But let it never, for a moment, be
forgotten that they are indebted for this advantage to the Union alone. The
moment of its dissolution will be the date of a new order of things. The fears
of the weaker, or the ambition of the stronger States, or Confederacies, will
set the same example in the New, as Charles VII. did in the Old World. The
example will be followed here from the same motives which produced universal
imitation there. Instead of deriving from our situation the precious advantage
which Great Britain has derived from hers, the face of America will be but a
copy of that of the continent of Europe. It will present liberty everywhere
crushed between standing armies and perpetual taxes. The fortunes of disunited
America will be even more disastrous than those of Europe. The sources of evil
in the latter are confined to her own limits. No superior powers of another
quarter of the globe intrigue among her rival nations, inflame their mutual
animosities, and render them the instruments of foreign ambition, jealousy,
and revenge. In America the miseries springing from her internal jealousies,
contentions, and wars, would form a part only of her lot. A plentiful addition
of evils would have their source in that relation in which Europe stands to
this quarter of the earth, and which no other quarter of the earth bears to
Europe.
15 This picture of the consequences of disunion cannot
be too highly colored, or too often exhibited. Every man who loves peace,
every man who loves his country, every man who loves liberty, ought to have it
ever before his eyes, that he may cherish in his heart a due attachment to the
Union of America, and be able to set a due value on the means of preserving
it.
16 Next to the effectual establishment of the Union, the
best possible precaution against danger from standing armies is a limitation
of the term for which revenue may be appropriated to their support. This
precaution the Constitution has prudently added. I will not repeat here the
observations which I flatter myself have placed this subject in a just and
satisfactory light. But it may not be improper to take notice of an argument
against this part of the Constitution, which has been drawn from the policy
and practice of Great Britain. It is said that the continuance of an army in
that kingdom requires an annual vote of the legislature; whereas the American
Constitution has lengthened this critical period to two years. This is the
form in which the comparison is usually stated to the public: but is it a just
form? Is it a fair comparison? Does the British Constitution restrain the
parliamentary discretion to one year? Does the American impose on the Congress
appropriations for two years? On the contrary, it cannot be unknown to the
authors of the fallacy themselves, that the British Constitution fixes no
limit whatever to the discretion of the legislature, and that the American
ties down the legislature to two years, as the longest admissible term.
17 Had the argument from the British example been truly
stated, it would have stood thus: The term for which supplies may be
appropriated to the army establishment, though unlimited by the British
Constitution, has nevertheless, in practice, been limited by parliamentary
discretion to a single year. Now, if in Great Britain, where the House of
Commons is elected for seven years; where so great a proportion of the members
are elected by so small a proportion of the people; where the electors are so
corrupted by the representatives, and the representatives so corrupted by the
Crown, the representative body can possess a power to make appropriations to
the army for an indefinite term, without desiring, or without daring, to
extend the term beyond a single year, ought not suspicion herself to blush, in
pretending that the representatives of the United States, elected FREELY by
the WHOLE BODY of the people, every SECOND YEAR, cannot be safely intrusted
with the discretion over such appropriations, expressly limited to the short
period of TWO YEARS?
18 A bad cause seldom fails to betray itself. Of this
truth, the management of the opposition to the federal government is an
unvaried exemplification. But among all the blunders which have been
committed, none is more striking than the attempt to enlist on that side the
prudent jealousy entertained by the people, of standing armies. The attempt
has awakened fully the public attention to that important subject; and has led
to investigations which must terminate in a thorough and universal conviction,
not only that the constitution has provided the most effectual guards against
danger from that quarter, but that nothing short of a Constitution fully
adequate to the national defense and the preservation of the Union, can save
America from as many standing armies as it may be split into States or
Confederacies, and from such a progressive augmentation, of these
establishments in each, as will render them as burdensome to the properties
and ominous to the liberties of the people, as any establishment that can
become necessary, under a united and efficient government, must be tolerable
to the former and safe to the latter.
19 The palpable necessity of the power to provide and
maintain a navy has protected that part of the Constitution against a spirit
of censure, which has spared few other parts. It must, indeed, be numbered
among the greatest blessings of America, that as her Union will be the only
source of her maritime strength, so this will be a principal source of her
security against danger from abroad. In this respect our situation bears
another likeness to the insular advantage of Great Britain. The batteries most
capable of repelling foreign enterprises on our safety, are happily such as
can never be turned by a perfidious government against our liberties.
20 The inhabitants of the Atlantic frontier are all of
them deeply interested in this provision for naval protection, and if they
have hitherto been suffered to sleep quietly in their beds; if their property
has remained safe against the predatory spirit of licentious adventurers; if
their maritime towns have not yet been compelled to ransom themselves from the
terrors of a conflagration, by yielding to the exactions of daring and sudden
invaders, these instances of good fortune are not to be ascribed to the
capacity of the existing government for the protection of those from whom it
claims allegiance, but to causes that are fugitive and fallacious. If we
except perhaps Virginia and Maryland, which are peculiarly vulnerable on their
eastern frontiers, no part of the Union ought to feel more anxiety on this
subject than New York. Her seacoast is extensive. A very important district of
the State is an island. The State itself is penetrated by a large navigable
river for more than fifty leagues. The great emporium of its commerce, the
great reservoir of its wealth, lies every moment at the mercy of events, and
may almost be regarded as a hostage for ignominious compliances with the
dictates of a foreign enemy, or even with the rapacious demands of pirates and
barbarians. Should a war be the result of the precarious situation of European
affairs, and all the unruly passions attending it be let loose on the ocean,
our escape from insults and depredations, not only on that element, but every
part of the other bordering on it, will be truly miraculous. In the present
condition of America, the States more immediately exposed to these calamities
have nothing to hope from the phantom of a general government which now
exists; and if their single resources were equal to the task of fortifying
themselves against the danger, the object to be protected would be almost
consumed by the means of protecting them.
21 The power of regulating and calling forth the militia
has been already sufficiently vindicated and explained.
22 The power of levying and borrowing money, being the
sinew of that which is to be exerted in the national defense, is properly
thrown into the same class with it. This power, also, has been examined
already with much attention, and has, I trust, been clearly shown to be
necessary, both in the extent and form given to it by the Constitution. I will
address one additional reflection only to those who contend that the power
ought to have been restrained to external -- taxation by which they mean,
taxes on articles imported from other countries. It cannot be doubted that
this will always be a valuable source of revenue; that for a considerable time
it must be a principal source; that at this moment it is an essential one. But
we may form very mistaken ideas on this subject, if we do not call to mind in
our calculations, that the extent of revenue drawn from foreign commerce must
vary with the variations, both in the extent and the kind of imports; and that
these variations do not correspond with the progress of population, which must
be the general measure of the public wants. As long as agriculture continues
the sole field of labor, the importation of manufactures must increase as the
consumers multiply. As soon as domestic manufactures are begun by the hands
not called for by agriculture, the imported manufactures will decrease as the
numbers of people increase. In a more remote stage, the imports may consist in
a considerable part of raw materials, which will be wrought into articles for
exportation, and will, therefore, require rather the encouragement of
bounties, than to be loaded with discouraging duties. A system of government,
meant for duration, ought to contemplate these revolutions, and be able to
accommodate itself to them.
23 Some, who have not denied the necessity of the power
of taxation, have grounded a very fierce attack against the Constitution, on
the language in which it is defined. It has been urged and echoed, that the
power "to lay and collect taxes, duties, imposts, and excises, to pay the
debts, and provide for the common defense and general welfare of the United
States," amounts to an unlimited commission to exercise every power which
may be alleged to be necessary for the common defense or general welfare. No
stronger proof could be given of the distress under which these writers labor
for objections, than their stooping to such a misconstruction.
24 Had no other enumeration or definition of the powers
of the Congress been found in the Constitution, than the general expressions
just cited, the authors of the objection might have had some color for it;
though it would have been difficult to find a reason for so awkward a form of
describing an authority to legislate in all possible cases. A power to destroy
the freedom of the press, the trial by jury, or even to regulate the course of
descents, or the forms of conveyances, must be very singularly expressed by
the terms "to raise money for the general welfare."
25 But what color can the objection have, when a
specification of the objects alluded to by these general terms immediately
follows, and is not even separated by a longer pause than a semicolon? If the
different parts of the same instrument ought to be so expounded, as to give
meaning to every part which will bear it, shall one part of the same sentence
be excluded altogether from a share in the meaning; and shall the more
doubtful and indefinite terms be retained in their full extent, and the clear
and precise expressions be denied any signification whatsoever? For what
purpose could the enumeration of particular powers be inserted, if these and
all others were meant to be included in the preceding general power? Nothing
is more natural nor common than first to use a general phrase, and then to
explain and qualify it by a recital of particulars. But the idea of an
enumeration of particulars which neither explain nor qualify the general
meaning, and can have no other effect than to confound and mislead, is an
absurdity, which, as we are reduced to the dilemma of charging either on the
authors of the objection or on the authors of the Constitution, we must take
the liberty of supposing, had not its origin with the latter.
26 The objection here is the more extraordinary, as it
appears that the language used by the convention is a copy from the articles
of Confederation. The objects of the Union among the States, as described in
article third, are "their common defense, security of their liberties,
and mutual and general welfare." The terms of article eighth are still
more identical: "All charges of war and all other expenses that shall be
incurred for the common defense or general welfare, and allowed by the United
States in Congress, shall be defrayed out of a common treasury," etc. A
similar language again occurs in article ninth. Construe either of these
articles by the rules which would justify the construction put on the new
Constitution, and they vest in the existing Congress a power to legislate in
all cases whatsoever. But what would have been thought of that assembly, if,
attaching themselves to these general expressions, and disregarding the
specifications which ascertain and limit their import, they had exercised an
unlimited power of providing for the common defense and general welfare? I
appeal to the objectors themselves, whether they would in that case have
employed the same reasoning in justification of Congress as they now make use
of against the convention. How difficult it is for error to escape its own
condemnation!
PUBLIUS
FEDERALIST No. 42
The Powers Conferred by the
Constitution Further Considered From the New York Packet.
Tuesday, January 22, 1788.
MADISON
To the People of the State of New York:
THE SECOND class of powers, lodged in the general
government, consists of those which regulate the intercourse with foreign
nations, to wit: to make treaties; to send and receive ambassadors, other
public ministers, and consuls; to define and punish piracies and felonies
committed on the high seas, and offenses against the law of nations; to
regulate foreign commerce, including a power to prohibit, after the year 1808,
the importation of slaves, and to lay an intermediate duty of ten dollars per
head, as a discouragement to such importations.
2 This class of powers forms an obvious and essential
branch of the federal administration. If we are to be one nation in any
respect, it clearly ought to be in respect to other nations.
3 The powers to make treaties and to send and receive
ambassadors, speak their own propriety. Both of them are comprised in the
articles of Confederation, with this difference only, that the former is
disembarrassed, by the plan of the convention, of an exception, under which
treaties might be substantially frustrated by regulations of the States; and
that a power of appointing and receiving "other public ministers and
consuls," is expressly and very properly added to the former provision
concerning ambassadors. The term ambassador, if taken strictly, as seems to be
required by the second of the articles of Confederation, comprehends the
highest grade only of public ministers, and excludes the grades which the
United States will be most likely to prefer, where foreign embassies may be
necessary. And under no latitude of construction will the term comprehend
consuls. Yet it has been found expedient, and has been the practice of
Congress, to employ the inferior grades of public ministers, and to send and
receive consuls.
4 It is true, that where treaties of commerce stipulate
for the mutual appointment of consuls, whose functions are connected with
commerce, the admission of foreign consuls may fall within the power of making
commercial treaties; and that where no such treaties exist, the mission of
American consuls into foreign countries may PERHAPS be covered under the
authority, given by the ninth article of the Confederation, to appoint all
such civil officers as may be necessary for managing the general affairs of
the United States. But the admission of consuls into the United States, where
no previous treaty has stipulated it, seems to have been nowhere provided for.
A supply of the omission is one of the lesser instances in which the
convention have improved on the model before them. But the most minute
provisions become important when they tend to obviate the necessity or the
pretext for gradual and unobserved usurpations of power. A list of the cases
in which Congress have been betrayed, or forced by the defects of the
Confederation, into violations of their chartered authorities, would not a
little surprise those who have paid no attention to the subject; and would be
no inconsiderable argument in favor of the new Constitution, which seems to
have provided no less studiously for the lesser, than the more obvious and
striking defects of the old.
5 The power to define and punish piracies and felonies
committed on the high seas, and offenses against the law of nations, belongs
with equal propriety to the general government, and is a still greater
improvement on the articles of Confederation. These articles contain no
provision for the case of offenses against the law of nations; and
consequently leave it in the power of any indiscreet member to embroil the
Confederacy with foreign nations. The provision of the federal articles on the
subject of piracies and felonies extends no further than to the establishment
of courts for the trial of these offenses. The definition of piracies might,
perhaps, without inconveniency, be left to the law of nations; though a
legislative definition of them is found in most municipal codes. A definition
of felonies on the high seas is evidently requisite. Felony is a term of loose
signification, even in the common law of England; and of various import in the
statute law of that kingdom. But neither the common nor the statute law of
that, or of any other nation, ought to be a standard for the proceedings of
this, unless previously made its own by legislative adoption. The meaning of
the term, as defined in the codes of the several States, would be as
impracticable as the former would be a dishonorable and illegitimate guide. It
is not precisely the same in any two of the States; and varies in each with
every revision of its criminal laws. For the sake of certainty and uniformity,
therefore, the power of defining felonies in this case was in every respect
necessary and proper.
6 The regulation of foreign commerce, having fallen
within several views which have been taken of this subject, has been too fully
discussed to need additional proofs here of its being properly submitted to
the federal administration.
7 It were doubtless to be wished, that the power of
prohibiting the importation of slaves had not been postponed until the year
1808, or rather that it had been suffered to have immediate operation. But it
is not difficult to account, either for this restriction on the general
government, or for the manner in which the whole clause is expressed. It ought
to be considered as a great point gained in favor of humanity, that a period
of twenty years may terminate forever, within these States, a traffic which
has so long and so loudly upbraided the barbarism of modern policy; that
within that period, it will receive a considerable discouragement from the
federal government, and may be totally abolished, by a concurrence of the few
States which continue the unnatural traffic, in the prohibitory example which
has been given by so great a majority of the Union. Happy would it be for the
unfortunate Africans, if an equal prospect lay before them of being redeemed
from the oppressions of their European brethren!
8 Attempts have been made to pervert this clause into
an objection against the Constitution, by representing it on one side as a
criminal toleration of an illicit practice, and on another as calculated to
prevent voluntary and beneficial emigrations from Europe to America. I mention
these misconstructions, not with a view to give them an answer, for they
deserve none, but as specimens of the manner and spirit in which some have
thought fit to conduct their opposition to the proposed government.
The powers included in the THIRD class are those
which provide for the harmony and proper intercourse among the States.
9 Under this head might be included the particular
restraints imposed on the authority of the States, and certain powers of the
judicial department; but the former are reserved for a distinct class, and the
latter will be particularly examined when we arrive at the structure and
organization of the government. I shall confine myself to a cursory review of
the remaining powers comprehended under this third description, to wit: to
regulate commerce among the several States and the Indian tribes; to coin
money, regulate the value thereof, and of foreign coin; to provide for the
punishment of counterfeiting the current coin and secureties of the United
States; to fix the standard of weights and measures; to establish a uniform
rule of naturalization, and uniform laws of bankruptcy, to prescribe the
manner in which the public acts, records, and judicial proceedings of each
State shall be proved, and the effect they shall have in other States; and to
establish post offices and post roads.
10 The defect of power in the existing Confederacy to
regulate the commerce between its several members, is in the number of those
which have been clearly pointed out by experience. To the proofs and remarks
which former papers have brought into view on this subject, it may be added
that without this supplemental provision, the great and essential power of
regulating foreign commerce would have been incomplete and ineffectual. A very
material object of this power was the relief of the States which import and
export through other States, from the improper contributions levied on them by
the latter. Were these at liberty to regulate the trade between State and
State, it must be foreseen that ways would be found out to load the articles
of import and export, during the passage through their jurisdiction, with
duties which would fall on the makers of the latter and the consumers of the
former. We may be assured by past experience, that such a practice would be
introduced by future contrivances; and both by that and a common knowledge of
human affairs, that it would nourish unceasing animosities, and not improbably
terminate in serious interruptions of the public tranquillity. To those who do
not view the question through the medium of passion or of interest, the desire
of the commercial States to collect, in any form, an indirect revenue from
their uncommercial neighbors, must appear not less impolitic than it is
unfair; since it would stimulate the injured party, by resentment as well as
interest, to resort to less convenient channels for their foreign trade. But
the mild voice of reason, pleading the cause of an enlarged and permanent
interest, is but too often drowned, before public bodies as well as
individuals, by the clamors of an impatient avidity for immediate and
immoderate gain.
11 The necessity of a superintending authority over the
reciprocal trade of confederated States, has been illustrated by other
examples as well as our own. In Switzerland, where the Union is so very
slight, each canton is obliged to allow to merchandises a passage through its
jurisdiction into other cantons, without an augmentation of the tolls. In
Germany it is a law of the empire, that the princes and states shall not lay
tolls or customs on bridges, rivers, or passages, without the consent of the
emperor and the diet; though it appears from a quotation in an antecedent
paper, that the practice in this, as in many other instances in that
confederacy, has not followed the law, and has produced there the mischiefs
which have been foreseen here. Among the restraints imposed by the Union of
the Netherlands on its members, one is, that they shall not establish imposts
disadvantageous to their neighbors, without the general permission.
12 The regulation of commerce with the Indian tribes is
very properly unfettered from two limitations in the articles of
Confederation, which render the provision obscure and contradictory. The power
is there restrained to Indians, not members of any of the States, and is not
to violate or infringe the legislative right of any State within its own
limits. What description of Indians are to be deemed members of a State, is
not yet settled, and has been a question of frequent perplexity and contention
in the federal councils. And how the trade with Indians, though not members of
a State, yet residing within its legislative jurisdiction, can be regulated by
an external authority, without so far intruding on the internal rights of
legislation, is absolutely incomprehensible. This is not the only case in
which the articles of Confederation have inconsiderately endeavored to
accomplish impossibilities; to reconcile a partial sovereignty in the Union,
with complete sovereignty in the States; to subvert a mathematical axiom, by
taking away a part, and letting the whole remain.
13 All that need be remarked on the power to coin money,
regulate the value thereof, and of foreign coin, is, that by providing for
this last case, the Constitution has supplied a material omission in the
articles of Confederation. The authority of the existing Congress is
restrained to the regulation of coin STRUCK by their own authority, or that of
the respective States. It must be seen at once that the proposed uniformity in
the VALUE of the current coin might be destroyed by subjecting that of foreign
coin to the different regulations of the different States.
14 The punishment of counterfeiting the public
securities, as well as the current coin, is submitted of course to that
authority which is to secure the value of both.
15 The regulation of weights and measures is transferred
from the articles of Confederation, and is founded on like considerations with
the preceding power of regulating coin.
16 The dissimilarity in the rules of naturalization has
long been remarked as a fault in our system, and as laying a foundation for
intricate and delicate questions. In the fourth article of the Confederation,
it is declared "that the FREE INHABITANTS of each of these States,
paupers, vagabonds, and fugitives from justice, excepted, shall be entitled to
all privileges and immunities of FREE CITIZENS in the several States; and THE
PEOPLE of each State shall, in every other, enjoy all the privileges of trade
and commerce," etc. There is a confusion of language here, which is
remarkable. Why the terms FREE INHABITANTS are used in one part of the
article, FREE CITIZENS in another, and PEOPLE in another; or what was meant by
superadding to "all privileges and immunities of free citizens,"
"all the privileges of trade and commerce," cannot easily be
determined. It seems to be a construction scarcely avoidable, however, that
those who come under the denomination of FREE INHABITANTS of a State, although
not citizens of such State, are entitled, in every other State, to all the
privileges of FREE CITIZENS of the latter; that is, to greater privileges than
they may be entitled to in their own State: so that it may be in the power of
a particular State, or rather every State is laid under a necessity, not only
to confer the rights of citizenship in other States upon any whom it may admit
to such rights within itself, but upon any whom it may allow to become
inhabitants within its jurisdiction. But were an exposition of the term
"inhabitants" to be admitted which would confine the stipulated
privileges to citizens alone, the difficulty is diminished only, not removed.
The very improper power would still be retained by each State, of naturalizing
aliens in every other State. In one State, residence for a short term confirms
all the rights of citizenship: in another, qualifications of greater
importance are required. An alien, therefore, legally incapacitated for
certain rights in the latter, may, by previous residence only in the former,
elude his incapacity; and thus the law of one State be preposterously rendered
paramount to the law of another, within the jurisdiction of the other. We owe
it to mere casualty, that very serious embarrassments on this subject have
been hitherto escaped. By the laws of several States, certain descriptions of
aliens, who had rendered themselves obnoxious, were laid under interdicts
inconsistent not only with the rights of citizenship but with the privilege of
residence. What would have been the consequence, if such persons, by residence
or otherwise, had acquired the character of citizens under the laws of another
State, and then asserted their rights as such, both to residence and
citizenship, within the State proscribing them? Whatever the legal
consequences might have been, other consequences would probably have resulted,
of too serious a nature not to be provided against. The new Constitution has
accordingly, with great propriety, made provision against them, and all others
proceeding from the defect of the Confederation on this head, by authorizing
the general government to establish a uniform rule of naturalization
throughout the United States.
17 The power of establishing uniform laws of bankruptcy
is so intimately connected with the regulation of commerce, and will prevent
so many frauds where the parties or their property may lie or be removed into
different States, that the expediency of it seems not likely to be drawn into
question.
18 The power of prescribing by general laws, the manner
in which the public acts, records and judicial proceedings of each State shall
be proved, and the effect they shall have in other States, is an evident and
valuable improvement on the clause relating to this subject in the articles of
Confederation. The meaning of the latter is extremely indeterminate, and can
be of little importance under any interpretation which it will bear. The power
here established may be rendered a very convenient instrument of justice, and
be particularly beneficial on the borders of contiguous States, where the
effects liable to justice may be suddenly and secretly translated, in any
stage of the process, within a foreign jurisdiction.
19 The power of establishing post roads must, in every
view, be a harmless power, and may, perhaps, by judicious management, become
productive of great public conveniency. Nothing which tends to facilitate the
intercourse between the States can be deemed unworthy of the public care.
PUBLIUS
FEDERALIST No. 43
The Same Subject Continued (The Powers
Conferred by the Constitution Further Considered)
For the Independent Journal.
Wednesday, January 23, 1788
MADISON
To the People of the State of New York:
THE FOURTH class comprises the following
miscellaneous powers:
1. A power "to promote the progress of science
and useful arts, by securing, for a limited time, to authors and inventors,
the exclusive right to their respective writings and discoveries."
The utility of this power will scarcely be
questioned. The copyright of authors has been solemnly adjudged, in Great
Britain, to be a right of common law. The right to useful inventions seems
with equal reason to belong to the inventors. The public good fully coincides
in both cases with the claims of individuals. The States cannot separately
make effectual provisions for either of the cases, and most of them have
anticipated the decision of this point, by laws passed at the instance of
Congress.
2. "To exercise exclusive legislation, in all
cases whatsoever, over such district (not exceeding ten miles square) as may,
by cession of particular States and the acceptance of Congress, become the
seat of the government of the United States; and to exercise like authority
over all places purchased by the consent of the legislatures of the States in
which the same shall be, for the erection of forts, magazines, arsenals,
dockyards, and other needful buildings."
3 The indispensable necessity of complete authority at
the seat of government, carries its own evidence with it. It is a power
exercised by every legislature of the Union, I might say of the world, by
virtue of its general supremacy. Without it, not only the public authority
might be insulted and its proceedings interrupted with impunity; but a
dependence of the members of the general government on the State comprehending
the seat of the government, for protection in the exercise of their duty,
might bring on the national councils an imputation of awe or influence,
equally dishonorable to the government and dissatisfactory to the other
members of the Confederacy. This consideration has the more weight, as the
gradual accumulation of public improvements at the stationary residence of the
government would be both too great a public pledge to be left in the hands of
a single State, and would create so many obstacles to a removal of the
government, as still further to abridge its necessary independence. The extent
of this federal district is sufficiently circumscribed to satisfy every
jealousy of an opposite nature. And as it is to be appropriated to this use
with the consent of the State ceding it; as the State will no doubt provide in
the compact for the rights and the consent of the citizens inhabiting it; as
the inhabitants will find sufficient inducements of interest to become willing
parties to the cession; as they will have had their voice in the election of
the government which is to exercise authority over them; as a municipal
legislature for local purposes, derived from their own suffrages, will of
course be allowed them; and as the authority of the legislature of the State,
and of the inhabitants of the ceded part of it, to concur in the cession, will
be derived from the whole people of the State in their adoption of the
Constitution, every imaginable objection seems to be obviated.
The necessity of a like authority over forts,
magazines, etc., established by the general government, is not less evident.
The public money expended on such places, and the public property deposited in
them, requires that they should be exempt from the authority of the particular
State. Nor would it be proper for the places on which the security of the
entire Union may depend, to be in any degree dependent on a particular member
of it. All objections and scruples are here also obviated, by requiring the
concurrence of the States concerned, in every such establishment.
3. "To declare the punishment of treason, but no
attainder of treason shall work corruption of blood, or forfeiture, except
during the life of the person attained."
As treason may be committed against the United
States, the authority of the United States ought to be enabled to punish it.
But as new-fangled and artificial treasons have been the great engines by
which violent factions, the natural offspring of free government, have usually
wreaked their alternate malignity on each other, the convention have, with
great judgment, opposed a barrier to this peculiar danger, by inserting a
constitutional definition of the crime, fixing the proof necessary for
conviction of it, and restraining the Congress, even in punishing it, from
extending the consequences of guilt beyond the person of its author.
4. "To admit new States into the Union; but no
new State shall be formed or erected within the jurisdiction of any other
State; nor any State be formed by the junction of two or more States, or parts
of States, without the consent of the legislatures of the States concerned, as
well as of the Congress."
In the articles of Confederation, no provision is
found on this important subject. Canada was to be admitted of right, on her
joining in the measures of the United States; and the other COLONIES, by which
were evidently meant the other British colonies, at the discretion of nine
States. The eventual establishment of NEW STATES seems to have been overlooked
by the compilers of that instrument. We have seen the inconvenience of this
omission, and the assumption of power into which Congress have been led by it.
With great propriety, therefore, has the new system supplied the defect. The
general precaution, that no new States shall be formed, without the
concurrence of the federal authority, and that of the States concerned, is
consonant to the principles which ought to govern such transactions. The
particular precaution against the erection of new States, by the partition of
a State without its consent, quiets the jealousy of the larger States; as that
of the smaller is quieted by a like precaution, against a junction of States
without their consent.
5. "To dispose of and make all needful rules and
regulations respecting the territory or other property belonging to the United
States," with a proviso, that "nothing in the Constitution shall be
so construed as to prejudice any claims of the United States, or of any
particular State."
This is a power of very great importance, and
required by considerations similar to those which show the propriety of the
former. The proviso annexed is proper in itself, and was probably rendered
absolutely necessary by jealousies and questions concerning the Western
territory sufficiently known to the public.
6. "To guarantee to every State in the Union a
republican form of government; to protect each of them against invasion; and
on application of the legislature, or of the executive (when the legislature
cannot be convened), against domestic violence."
In a confederacy founded on republican principles,
and composed of republican members, the superintending government ought
clearly to possess authority to defend the system against aristocratic or
monarchial innovations. The more intimate the nature of such a union may be,
the greater interest have the members in the political institutions of each
other; and the greater right to insist that the forms of government under
which the compact was entered into should be SUBSTANTIALLY maintained. But a
right implies a remedy; and where else could the remedy be deposited, than
where it is deposited by the Constitution? Governments of dissimilar
principles and forms have been found less adapted to a federal coalition of
any sort, than those of a kindred nature. "As the confederate republic of
Germany," says Montesquieu, "consists of free cities and petty
states, subject to different princes, experience shows us that it is more
imperfect than that of Holland and Switzerland." "Greece was
undone," he adds, "as soon as the king of Macedon obtained a seat
among the Amphictyons." In the latter case, no doubt, the
disproportionate force, as well as the monarchical form, of the new
confederate, had its share of influence on the events. It may possibly be
asked, what need there could be of such a precaution, and whether it may not
become a pretext for alterations in the State governments, without the
concurrence of the States themselves. These questions admit of ready answers.
If the interposition of the general government should not be needed, the
provision for such an event will be a harmless superfluity only in the
Constitution. But who can say what experiments may be produced by the caprice
of particular States, by the ambition of enterprising leaders, or by the
intrigues and influence of foreign powers? To the second question it may be
answered, that if the general government should interpose by virtue of this
constitutional authority, it will be, of course, bound to pursue the
authority. But the authority extends no further than to a GUARANTY of a
republican form of government, which supposes a pre-existing government of the
form which is to be guaranteed. As long, therefore, as the existing republican
forms are continued by the States, they are guaranteed by the federal
Constitution. Whenever the States may choose to substitute other republican
forms, they have a right to do so, and to claim the federal guaranty for the
latter. The only restriction imposed on them is, that they shall not exchange
republican for antirepublican Constitutions; a restriction which, it is
presumed, will hardly be considered as a grievance.
A protection against invasion is due from every
society to the parts composing it. The latitude of the expression here used
seems to secure each State, not only against foreign hostility, but against
ambitious or vindictive enterprises of its more powerful neighbors. The
history, both of ancient and modern confederacies, proves that the weaker
members of the union ought not to be insensible to the policy of this article.
Protection against domestic violence is added with
equal propriety. It has been remarked, that even among the Swiss cantons,
which, properly speaking, are not under one government, provision is made for
this object; and the history of that league informs us that mutual aid is
frequently claimed and afforded; and as well by the most democratic, as the
other cantons. A recent and well-known event among ourselves has warned us to
be prepared for emergencies of a like nature.
At first view, it might seem not to square with the
republican theory, to suppose, either that a majority have not the right, or
that a minority will have the force, to subvert a government; and
consequently, that the federal interposition can never be required, but when
it would be improper. But theoretic reasoning, in this as in most other cases,
must be qualified by the lessons of practice. Why may not illicit
combinations, for purposes of violence, be formed as well by a majority of a
State, especially a small State as by a majority of a county, or a district of
the same State; and if the authority of the State ought, in the latter case,
to protect the local magistracy, ought not the federal authority, in the
former, to support the State authority? Besides, there are certain parts of
the State constitutions which are so interwoven with the federal Constitution,
that a violent blow cannot be given to the one without communicating the wound
to the other. Insurrections in a State will rarely induce a federal
interposition, unless the number concerned in them bear some proportion to the
friends of government. It will be much better that the violence in such cases
should be repressed by the superintending power, than that the majority should
be left to maintain their cause by a bloody and obstinate contest. The
existence of a right to interpose, will generally prevent the necessity of
exerting it.
Is it true that force and right are necessarily on
the same side in republican governments? May not the minor party possess such
a superiority of pecuniary resources, of military talents and experience, or
of secret succors from foreign powers, as will render it superior also in an
appeal to the sword? May not a more compact and advantageous position turn the
scale on the same side, against a superior number so situated as to be less
capable of a prompt and collected exertion of its strength? Nothing can be
more chimerical than to imagine that in a trial of actual force, victory may
be calculated by the rules which prevail in a census of the inhabitants, or
which determine the event of an election! May it not happen, in fine, that the
minority of CITIZENS may become a majority of PERSONS, by the accession of
alien residents, of a casual concourse of adventurers, or of those whom the
constitution of the State has not admitted to the rights of suffrage? I take
no notice of an unhappy species of population abounding in some of the States,
who, during the calm of regular government, are sunk below the level of men;
but who, in the tempestuous scenes of civil violence, may emerge into the
human character, and give a superiority of strength to any party with which
they may associate themselves.
In cases where it may be doubtful on which side
justice lies, what better umpires could be desired by two violent factions,
flying to arms, and tearing a State to pieces, than the representatives of
confederate States, not heated by the local flame? To the impartiality of
judges, they would unite the affection of friends. Happy would it be if such a
remedy for its infirmities could be enjoyed by all free governments; if a
project equally effectual could be established for the universal peace of
mankind!
Should it be asked, what is to be the redress for an
insurrection pervading all the States, and comprising a superiority of the
entire force, though not a constitutional right? the answer must be, that such
a case, as it would be without the compass of human remedies, so it is
fortunately not within the compass of human probability; and that it is a
sufficient recommendation of the federal Constitution, that it diminishes the
risk of a calamity for which no possible constitution can provide a cure.
Among the advantages of a confederate republic
enumerated by Montesquieu, an important one is, "that should a popular
insurrection happen in one of the States, the others are able to quell it.
Should abuses creep into one part, they are reformed by those that remain
sound."
7. "To consider all debts contracted, and
engagements entered into, before the adoption of this Constitution, as being
no less valid against the United States, under this Constitution, than under
the Confederation."
This can only be considered as a declaratory
proposition; and may have been inserted, among other reasons, for the
satisfaction of the foreign creditors of the United States, who cannot be
strangers to the pretended doctrine, that a change in the political form of
civil society has the magical effect of dissolving its moral obligations.
Among the lesser criticisms which have been exercised
on the Constitution, it has been remarked that the validity of engagements
ought to have been asserted in favor of the United States, as well as against
them; and in the spirit which usually characterizes little critics, the
omission has been transformed and magnified into a plot against the national
rights. The authors of this discovery may be told, what few others need to be
informed of, that as engagements are in their nature reciprocal, an assertion
of their validity on one side, necessarily involves a validity on the other
side; and that as the article is merely declaratory, the establishment of the
principle in one case is sufficient for every case. They may be further told,
that every constitution must limit its precautions to dangers that are not
altogether imaginary; and that no real danger can exist that the government
would DARE, with, or even without, this constitutional declaration before it,
to remit the debts justly due to the public, on the pretext here condemned.
8. "To provide for amendments to be ratified by
three fourths of the States under two exceptions only."
That useful alterations will be suggested by
experience, could not but be foreseen. It was requisite, therefore, that a
mode for introducing them should be provided. The mode preferred by the
convention seems to be stamped with every mark of propriety. It guards equally
against that extreme facility, which would render the Constitution too
mutable; and that extreme difficulty, which might perpetuate its discovered
faults. It, moreover, equally enables the general and the State governments to
originate the amendment of errors, as they may be pointed out by the
experience on one side, or on the other. The exception in favor of the
equality of suffrage in the Senate, was probably meant as a palladium to the
residuary sovereignty of the States, implied and secured by that principle of
representation in one branch of the legislature; and was probably insisted on
by the States particularly attached to that equality. The other exception must
have been admitted on the same considerations which produced the privilege
defended by it.
9. "The ratification of the conventions of nine
States shall be sufficient for the establishment of this Constitution between
the States, ratifying the same."
This article speaks for itself. The express authority
of the people alone could give due validity to the Constitution. To have
required the unanimous ratification of the thirteen States, would have
subjected the essential interests of the whole to the caprice or corruption of
a single member. It would have marked a want of foresight in the convention,
which our own experience would have rendered inexcusable.
Two questions of a very delicate nature present
themselves on this occasion: 1. On what principle the Confederation, which
stands in the solemn form of a compact among the States, can be superseded
without the unanimous consent of the parties to it? 2. What relation is to
subsist between the nine or more States ratifying the Constitution, and the
remaining few who do not become parties to it?
The first question is answered at once by recurring
to the absolute necessity of the case; to the great principle of
self-preservation; to the transcendent law of nature and of nature's God,
which declares that the safety and happiness of society are the objects at
which all political institutions aim, and to which all such institutions must
be sacrificed. PERHAPS, also, an answer may be found without searching beyond
the principles of the compact itself. It has been heretofore noted among the
defects of the Confederation, that in many of the States it had received no
higher sanction than a mere legislative ratification. The principle of
reciprocality seems to require that its obligation on the other States should
be reduced to the same standard. A compact between independent sovereigns,
founded on ordinary acts of legislative authority, can pretend to no higher
validity than a league or treaty between the parties. It is an established
doctrine on the subject of treaties, that all the articles are mutually
conditions of each other; that a breach of any one article is a breach of the
whole treaty; and that a breach, committed by either of the parties, absolves
the others, and authorizes them, if they please, to pronounce the compact
violated and void. Should it unhappily be necessary to appeal to these
delicate truths for a justification for dispensing with the consent of
particular States to a dissolution of the federal pact, will not the
complaining parties find it a difficult task to answer the MULTIPLIED and
IMPORTANT infractions with which they may be confronted? The time has been
when it was incumbent on us all to veil the ideas which this paragraph
exhibits. The scene is now changed, and with it the part which the same
motives dictate.
The second question is not less delicate; and the
flattering prospect of its being merely hypothetical forbids an overcurious
discussion of it. It is one of those cases which must be left to provide for
itself. In general, it may be observed, that although no political relation
can subsist between the assenting and dissenting States, yet the moral
relations will remain uncancelled. The claims of justice, both on one side and
on the other, will be in force, and must be fulfilled; the rights of humanity
must in all cases be duly and mutually respected; whilst considerations of a
common interest, and, above all, the remembrance of the endearing scenes which
are past, and the anticipation of a speedy triumph over the obstacles to
reunion, will, it is hoped, not urge in vain MODERATION on one side, and
PRUDENCE on the other.
PUBLIUS
FEDERALIST No. 44
Restrictions on the Authority of the
Several States From the New York Packet.
Friday, January 25, 1788.
MADISON
To the People of the State of New York:
A FIFTH class of provisions in favor of the federal
authority consists of the following restrictions on the authority of the
several States:
1. "No State shall enter into any treaty,
alliance, or confederation; grant letters of marque and reprisal; coin money;
emit bills of credit; make any thing but gold and silver a legal tender in
payment of debts; pass any bill of attainder, ex post facto law, or law
impairing the obligation of contracts; or grant any title of nobility."
2 The prohibition against treaties, alliances, and
confederations makes a part of the existing articles of Union; and for reasons
which need no explanation, is copied into the new Constitution. The
prohibition of letters of marque is another part of the old system, but is
somewhat extended in the new. According to the former, letters of marque could
be granted by the States after a declaration of war; according to the latter,
these licenses must be obtained, as well during war as previous to its
declaration, from the government of the United States. This alteration is
fully justified by the advantage of uniformity in all points which relate to
foreign powers; and of immediate responsibility to the nation in all those for
whose conduct the nation itself is to be responsible.
3 The right of coining money, which is here taken from
the States, was left in their hands by the Confederation, as a concurrent
right with that of Congress, under an exception in favor of the exclusive
right of Congress to regulate the alloy and value. In this instance, also, the
new provision is an improvement on the old. Whilst the alloy and value
depended on the general authority, a right of coinage in the particular States
could have no other effect than to multiply expensive mints and diversify the
forms and weights of the circulating pieces. The latter inconveniency defeats
one purpose for which the power was originally submitted to the federal head;
and as far as the former might prevent an inconvenient remittance of gold and
silver to the central mint for recoinage, the end can be as well attained by
local mints established under the general authority.
4 The extension of the prohibition to bills of credit
must give pleasure to every citizen, in proportion to his love of justice and
his knowledge of the true springs of public prosperity. The loss which America
has sustained since the peace, from the pestilent effects of paper money on
the necessary confidence between man and man, on the necessary confidence in
the public councils, on the industry and morals of the people, and on the
character of republican government, constitutes an enormous debt against the
States chargeable with this unadvised measure, which must long remain
unsatisfied; or rather an accumulation of guilt, which can be expiated no
otherwise than by a voluntary sacrifice on the altar of justice, of the power
which has been the instrument of it. In addition to these persuasive
considerations, it may be observed, that the same reasons which show the
necessity of denying to the States the power of regulating coin, prove with
equal force that they ought not to be at liberty to substitute a paper medium
in the place of coin. Had every State a right to regulate the value of its
coin, there might be as many different currencies as States, and thus the
intercourse among them would be impeded; retrospective alterations in its
value might be made, and thus the citizens of other States be injured, and
animosities be kindled among the States themselves. The subjects of foreign
powers might suffer from the same cause, and hence the Union be discredited
and embroiled by the indiscretion of a single member. No one of these
mischiefs is less incident to a power in the States to emit paper money, than
to coin gold or silver. The power to make any thing but gold and silver a
tender in payment of debts, is withdrawn from the States, on the same
principle with that of issuing a paper currency.
5 Bills of attainder, ex post facto laws, and laws
impairing the obligation of contracts, are contrary to the first principles of
the social compact, and to every principle of sound legislation. The two
former are expressly prohibited by the declarations prefixed to some of the
State constitutions, and all of them are prohibited by the spirit and scope of
these fundamental charters. Our own experience has taught us, nevertheless,
that additional fences against these dangers ought not to be omitted. Very
properly, therefore, have the convention added this constitutional bulwark in
favor of personal security and private rights; and I am much deceived if they
have not, in so doing, as faithfully consulted the genuine sentiments as the
undoubted interests of their constituents. The sober people of America are
weary of the fluctuating policy which has directed the public councils. They
have seen with regret and indignation that sudden changes and legislative
interferences, in cases affecting personal rights, become jobs in the hands of
enterprising and influential speculators, and snares to the more-industrious
and lessinformed part of the community. They have seen, too, that one
legislative interference is but the first link of a long chain of repetitions,
every subsequent interference being naturally produced by the effects of the
preceding. They very rightly infer, therefore, that some thorough reform is
wanting, which will banish speculations on public measures, inspire a general
prudence and industry, and give a regular course to the business of society.
The prohibition with respect to titles of nobility is copied from the articles
of Confederation and needs no comment.
2. "No State shall, without the consent of the
Congress, lay any imposts or duties on imports or exports, except what may be
absolutely necessary for executing its inspection laws, and the net produce of
all duties and imposts laid by any State on imports or exports, shall be for
the use of the treasury of the United States; and all such laws shall be
subject to the revision and control of the Congress. No State shall, without
the consent of Congress, lay any duty on tonnage, keep troops or ships of war
in time of peace, enter into any agreement or compact with another State, or
with a foreign power, or engage in war unless actually invaded, or in such
imminent danger as will not admit of delay."
6 The restraint on the power of the States over imports
and exports is enforced by all the arguments which prove the necessity of
submitting the regulation of trade to the federal councils. It is needless,
therefore, to remark further on this head, than that the manner in which the
restraint is qualified seems well calculated at once to secure to the States a
reasonable discretion in providing for the conveniency of their imports and
exports, and to the United States a reasonable check against the abuse of this
discretion. The remaining particulars of this clause fall within reasonings
which are either so obvious, or have been so fully developed, that they may be
passed over without remark.
7 The SIXTH and last class consists of the several
powers and provisions by which efficacy is given to all the rest.
1. Of these the first is, the "power to make all
laws which shall be necessary and proper for carrying into execution the
foregoing powers, and all other powers vested by this Constitution in the
government of the United States, or in any department or officer
thereof."
8 Few parts of the Constitution have been assailed with
more intemperance than this; yet on a fair investigation of it, no part can
appear more completely invulnerable. Without the SUBSTANCE of this power, the
whole Constitution would be a dead letter. Those who object to the article,
therefore, as a part of the Constitution, can only mean that the FORM of the
provision is improper. But have they considered whether a better form could
have been substituted?
9 There are four other possible methods which the
Constitution might have taken on this subject. They might have copied the
second article of the existing Confederation, which would have prohibited the
exercise of any power not EXPRESSLY delegated; they might have attempted a
positive enumeration of the powers comprehended under the general terms
"necessary and proper"; they might have attempted a negative
enumeration of them, by specifying the powers excepted from the general
definition; they might have been altogether silent on the subject, leaving
these necessary and proper powers to construction and inference.
10 Had the convention taken the first method of adopting
the second article of Confederation, it is evident that the new Congress would
be continually exposed, as their predecessors have been, to the alternative of
construing the term "EXPRESSLY" with so much rigor, as to disarm the
government of all real authority whatever, or with so much latitude as to
destroy altogether the force of the restriction. It would be easy to show, if
it were necessary, that no important power, delegated by the articles of
Confederation, has been or can be executed by Congress, without recurring more
or less to the doctrine of CONSTRUCTION or IMPLICATION. As the powers
delegated under the new system are more extensive, the government which is to
administer it would find itself still more distressed with the alternative of
betraying the public interests by doing nothing, or of violating the
Constitution by exercising powers indispensably necessary and proper, but, at
the same time, not EXPRESSLY granted.
11 Had the convention attempted a positive enumeration
of the powers necessary and proper for carrying their other powers into
effect, the attempt would have involved a complete digest of laws on every
subject to which the Constitution relates; accommodated too, not only to the
existing state of things, but to all the possible changes which futurity may
produce; for in every new application of a general power, the PARTICULAR
POWERS, which are the means of attaining the OBJECT of the general power, must
always necessarily vary with that object, and be often properly varied whilst
the object remains the same.
12 Had they attempted to enumerate the particular powers
or means not necessary or proper for carrying the general powers into
execution, the task would have been no less chimerical; and would have been
liable to this further objection, that every defect in the enumeration would
have been equivalent to a positive grant of authority. If, to avoid this
consequence, they had attempted a partial enumeration of the exceptions, and
described the residue by the general terms, NOT NECESSARY OR PROPER, it must
have happened that the enumeration would comprehend a few of the excepted
powers only; that these would be such as would be least likely to be assumed
or tolerated, because the enumeration would of course select such as would be
least necessary or proper; and that the unnecessary and improper powers
included in the residuum, would be less forcibly excepted, than if no partial
enumeration had been made.
13 Had the Constitution been silent on this head, there
can be no doubt that all the particular powers requisite as means of executing
the general powers would have resulted to the government, by unavoidable
implication. No axiom is more clearly established in law, or in reason, than
that wherever the end is required, the means are authorized; wherever a
general power to do a thing is given, every particular power necessary for
doing it is included. Had this last method, therefore, been pursued by the
convention, every objection now urged against their plan would remain in all
its plausibility; and the real inconveniency would be incurred of not removing
a pretext which may be seized on critical occasions for drawing into question
the essential powers of the Union.
14 If it be asked what is to be the consequence, in case
the Congress shall misconstrue this part of the Constitution, and exercise
powers not warranted by its true meaning, I answer, the same as if they should
misconstrue or enlarge any other power vested in them; as if the general power
had been reduced to particulars, and any one of these were to be violated; the
same, in short, as if the State legislatures should violate the irrespective
constitutional authorities. In the first instance, the success of the
usurpation will depend on the executive and judiciary departments, which are
to expound and give effect to the legislative acts; and in the last resort a
remedy must be obtained from the people who can, by the election of more
faithful representatives, annul the acts of the usurpers. The truth is, that
this ultimate redress may be more confided in against unconstitutional acts of
the federal than of the State legislatures, for this plain reason, that as
every such act of the former will be an invasion of the rights of the latter,
these will be ever ready to mark the innovation, to sound the alarm to the
people, and to exert their local influence in effecting a change of federal
representatives. There being no such intermediate body between the State
legislatures and the people interested in watching the conduct of the former,
violations of the State constitutions are more likely to remain unnoticed and
unredressed.
2. "This Constitution and the laws of the United
States which shall be made in pursuance thereof, and all treaties made, or
which shall be made, under the authority of the United States, shall be the
supreme law of the land, and the judges in every State shall be bound thereby,
any thing in the constitution or laws of any State to the contrary
notwithstanding."
15 The indiscreet zeal of the adversaries to the
Constitution has betrayed them into an attack on this part of it also, without
which it would have been evidently and radically defective. To be fully
sensible of this, we need only suppose for a moment that the supremacy of the
State constitutions had been left complete by a saving clause in their favor.
16 In the first place, as these constitutions invest the
State legislatures with absolute sovereignty, in all cases not excepted by the
existing articles of Confederation, all the authorities contained in the
proposed Constitution, so far as they exceed those enumerated in the
Confederation, would have been annulled, and the new Congress would have been
reduced to the same impotent condition with their predecessors.
17 In the next place, as the constitutions of some of
the States do not even expressly and fully recognize the existing powers of
the Confederacy, an express saving of the supremacy of the former would, in
such States, have brought into question every power contained in the proposed
Constitution.
18 In the third place, as the constitutions of the
States differ much from each other, it might happen that a treaty or national
law, of great and equal importance to the States, would interfere with some
and not with other constitutions, and would consequently be valid in some of
the States, at the same time that it would have no effect in others.
19 In fine, the world would have seen, for the first
time, a system of government founded on an inversion of the fundamental
principles of all government; it would have seen the authority of the whole
society every where subordinate to the authority of the parts; it would have
seen a monster, in which the head was under the direction of the members.
3. "The Senators and Representatives, and the
members of the several State legislatures, and all executive and judicial
officers, both of the United States and the several States, shall be bound by
oath or affirmation to support this Constitution."
20 It has been asked why it was thought necessary, that
the State magistracy should be bound to support the federal Constitution, and
unnecessary that a like oath should be imposed on the officers of the United
States, in favor of the State constitutions.
21 Several reasons might be assigned for the
distinction. I content myself with one, which is obvious and conclusive. The
members of the federal government will have no agency in carrying the State
constitutions into effect. The members and officers of the State governments,
on the contrary, will have an essential agency in giving effect to the federal
Constitution. The election of the President and Senate will depend, in all
cases, on the legislatures of the several States. And the election of the
House of Representatives will equally depend on the same authority in the
first instance; and will, probably, forever be conducted by the officers, and
according to the laws, of the States.
4. Among the provisions for giving efficacy to the
federal powers might be added those which belong to the executive and
judiciary departments: but as these are reserved for particular examination in
another place, I pass them over in this.
22 We have now reviewed, in detail, all the articles
composing the sum or quantity of power delegated by the proposed Constitution
to the federal government, and are brought to this undeniable conclusion, that
no part of the power is unnecessary or improper for accomplishing the
necessary objects of the Union. The question, therefore, whether this amount
of power shall be granted or not, resolves itself into another question,
whether or not a government commensurate to the exigencies of the Union shall
be established; or, in other words, whether the Union itself shall be
preserved.
PUBLIUS
FEDERALIST No. 45
The Alleged Danger From the Powers of
the Union to the State Governments Considered For the Independent Fournal.
Saturday, January 26, 1788
MADISON
To the People of the State of New York:
HAVING shown that no one of the powers transferred to
the federal government is unnecessary or improper, the next question to be
considered is, whether the whole mass of them will be dangerous to the portion
of authority left in the several States.
2 The adversaries to the plan of the convention,
instead of considering in the first place what degree of power was absolutely
necessary for the purposes of the federal government, have exhausted
themselves in a secondary inquiry into the possible consequences of the
proposed degree of power to the governments of the particular States. But if
the Union, as has been shown, be essential to the security of the people of
America against foreign danger; if it be essential to their security against
contentions and wars among the different States; if it be essential to guard
them against those violent and oppressive factions which embitter the
blessings of liberty, and against those military establishments which must
gradually poison its very fountain; if, in a word, the Union be essential to
the happiness of the people of America, is it not preposterous, to urge as an
objection to a government, without which the objects of the Union cannot be
attained, that such a government may derogate from the importance of the
governments of the individual States? Was, then, the American Revolution
effected, was the American Confederacy formed, was the precious blood of
thousands spilt, and the hard-earned substance of millions lavished, not that
the people of America should enjoy peace, liberty, and safety, but that the
government of the individual States, that particular municipal establishments,
might enjoy a certain extent of power, and be arrayed with certain dignities
and attributes of sovereignty? We have heard of the impious doctrine in the
Old World, that the people were made for kings, not kings for the people. Is
the same doctrine to be revived in the New, in another shape that the solid
happiness of the people is to be sacrificed to the views of political
institutions of a different form? It is too early for politicians to presume
on our forgetting that the public good, the real welfare of the great body of
the people, is the supreme object to be pursued; and that no form of
government whatever has any other value than as it may be fitted for the
attainment of this object. Were the plan of the convention adverse to the
public happiness, my voice would be, Reject the plan. Were the Union itself
inconsistent with the public happiness, it would be, Abolish the Union. In
like manner, as far as the sovereignty of the States cannot be reconciled to
the happiness of the people, the voice of every good citizen must be, Let the
former be sacrificed to the latter. How far the sacrifice is necessary, has
been shown. How far the unsacrificed residue will be endangered, is the
question before us.
3 Several important considerations have been touched in
the course of these papers, which discountenance the supposition that the
operation of the federal government will by degrees prove fatal to the State
governments. The more I revolve the subject, the more fully I am persuaded
that the balance is much more likely to be disturbed by the preponderancy of
the last than of the first scale.
4 We have seen, in all the examples of ancient and
modern confederacies, the strongest tendency continually betraying itself in
the members, to despoil the general government of its authorities, with a very
ineffectual capacity in the latter to defend itself against the encroachments.
Although, in most of these examples, the system has been so dissimilar from
that under consideration as greatly to weaken any inference concerning the
latter from the fate of the former, yet, as the States will retain, under the
proposed Constitution, a very extensive portion of active sovereignty, the
inference ought not to be wholly disregarded. In the Achaean league it is
probable that the federal head had a degree and species of power, which gave
it a considerable likeness to the government framed by the convention. The
Lycian Confederacy, as far as its principles and form are transmitted, must
have borne a still greater analogy to it. Yet history does not inform us that
either of them ever degenerated, or tended to degenerate, into one
consolidated government. On the contrary, we know that the ruin of one of them
proceeded from the incapacity of the federal authority to prevent the
dissensions, and finally the disunion, of the subordinate authorities. These
cases are the more worthy of our attention, as the external causes by which
the component parts were pressed together were much more numerous and powerful
than in our case; and consequently less powerful ligaments within would be
sufficient to bind the members to the head, and to each other.
5 In the feudal system, we have seen a similar
propensity exemplified. Notwithstanding the want of proper sympathy in every
instance between the local sovereigns and the people, and the sympathy in some
instances between the general sovereign and the latter, it usually happened
that the local sovereigns prevailed in the rivalship for encroachments. Had no
external dangers enforced internal harmony and subordination, and
particularly, had the local sovereigns possessed the affections of the people,
the great kingdoms in Europe would at this time consist of as many independent
princes as there were formerly feudatory barons.
6 The State governments will have the advantage of the
Federal government, whether we compare them in respect to the immediate
dependence of the one on the other; to the weight of personal influence which
each side will possess; to the powers respectively vested in them; to the
predilection and probable support of the people; to the disposition and
faculty of resisting and frustrating the measures of each other.
7 The State governments may be regarded as constituent
and essential parts of the federal government; whilst the latter is nowise
essential to the operation or organization of the former. Without the
intervention of the State legislatures, the President of the United States
cannot be elected at all. They must in all cases have a great share in his
appointment, and will, perhaps, in most cases, of themselves determine it. The
Senate will be elected absolutely and exclusively by the State legislatures.
Even the House of Representatives, though drawn immediately from the people,
will be chosen very much under the influence of that class of men, whose
influence over the people obtains for themselves an election into the State
legislatures. Thus, each of the principal branches of the federal government
will owe its existence more or less to the favor of the State governments, and
must consequently feel a dependence, which is much more likely to beget a
disposition too obsequious than too overbearing towards them. On the other
side, the component parts of the State governments will in no instance be
indebted for their appointment to the direct agency of the federal government,
and very little, if at all, to the local influence of its members.
8 The number of individuals employed under the
Constitution of the United States will be much smaller than the number
employed under the particular States. There will consequently be less of
personal influence on the side of the former than of the latter. The members
of the legislative, executive, and judiciary departments of thirteen and more
States, the justices of peace, officers of militia, ministerial officers of
justice, with all the county, corporation, and town officers, for three
millions and more of people, intermixed, and having particular acquaintance
with every class and circle of people, must exceed, beyond all proportion,
both in number and influence, those of every description who will be employed
in the administration of the federal system. Compare the members of the three
great departments of the thirteen States, excluding from the judiciary
department the justices of peace, with the members of the corresponding
departments of the single government of the Union; compare the militia
officers of three millions of people with the military and marine officers of
any establishment which is within the compass of probability, or, I may add,
of possibility, and in this view alone, we may pronounce the advantage of the
States to be decisive. If the federal government is to have collectors of
revenue, the State governments will have theirs also. And as those of the
former will be principally on the seacoast, and not very numerous, whilst
those of the latter will be spread over the face of the country, and will be
very numerous, the advantage in this view also lies on the same side. It is
true, that the Confederacy is to possess, and may exercise, the power of
collecting internal as well as external taxes throughout the States; but it is
probable that this power will not be resorted to, except for supplemental
purposes of revenue; that an option will then be given to the States to supply
their quotas by previous collections of their own; and that the eventual
collection, under the immediate authority of the Union, will generally be made
by the officers, and according to the rules, appointed by the several States.
Indeed it is extremely probable, that in other instances, particularly in the
organization of the judicial power, the officers of the States will be clothed
with the correspondent authority of the Union. Should it happen, however, that
separate collectors of internal revenue should be appointed under the federal
government, the influence of the whole number would not bear a comparison with
that of the multitude of State officers in the opposite scale. Within every
district to which a federal collector would be allotted, there would not be
less than thirty or forty, or even more, officers of different descriptions,
and many of them persons of character and weight, whose influence would lie on
the side of the State.
9 The powers delegated by the proposed Constitution to
the federal government, are few and defined. Those which are to remain in the
State governments are numerous and indefinite. The former will be exercised
principally on external objects, as war, peace, negotiation, and foreign
commerce; with which last the power of taxation will, for the most part, be
connected. The powers reserved to the several States will extend to all the
objects which, in the ordinary course of affairs, concern the lives,
liberties, and properties of the people, and the internal order, improvement,
and prosperity of the State.
10 The operations of the federal government will be most
extensive and important in times of war and danger; those of the State
governments, in times of peace and security. As the former periods will
probably bear a small proportion to the latter, the State governments will
here enjoy another advantage over the federal government. The more adequate,
indeed, the federal powers may be rendered to the national defense, the less
frequent will be those scenes of danger which might favor their ascendancy
over the governments of the particular States.
11 If the new Constitution be examined with accuracy and
candor, it will be found that the change which it proposes consists much less
in the addition of NEW POWERS to the Union, than in the invigoration of its
ORIGINAL POWERS. The regulation of commerce, it is true, is a new power; but
that seems to be an addition which few oppose, and from which no apprehensions
are entertained. The powers relating to war and peace, armies and fleets,
treaties and finance, with the other more considerable powers, are all vested
in the existing Congress by the articles of Confederation. The proposed change
does not enlarge these powers; it only substitutes a more effectual mode of
administering them. The change relating to taxation may be regarded as the
most important; and yet the present Congress have as complete authority to
REQUIRE of the States indefinite supplies of money for the common defense and
general welfare, as the future Congress will have to require them of
individual citizens; and the latter will be no more bound than the States
themselves have been, to pay the quotas respectively taxed on them. Had the
States complied punctually with the articles of Confederation, or could their
compliance have been enforced by as peaceable means as may be used with
success towards single persons, our past experience is very far from
countenancing an opinion, that the State governments would have lost their
constitutional powers, and have gradually undergone an entire consolidation.
To maintain that such an event would have ensued, would be to say at once,
that the existence of the State governments is incompatible with any system
whatever that accomplishes the essental purposes of the Union.
PUBLIUS
FEDERALIST No. 46
The Influence of the State and Federal
Governments Compared From the New York Packet.
Tuesday, January 29, 1788.
MADISON
To the People of the State of New York:
RESUMING the subject of the last paper, I proceed to
inquire whether the federal government or the State governments will have the
advantage with regard to the predilection and support of the people.
Notwithstanding the different modes in which they are appointed, we must
consider both of them as substantially dependent on the great body of the
citizens of the United States. I assume this position here as it respects the
first, reserving the proofs for another place. The federal and State
governments are in fact but different agents and trustees of the people,
constituted with different powers, and designed for different purposes. The
adversaries of the Constitution seem to have lost sight of the people
altogether in their reasonings on this subject; and to have viewed these
different establishments, not only as mutual rivals and enemies, but as
uncontrolled by any common superior in their efforts to usurp the authorities
of each other. These gentlemen must here be reminded of their error. They must
be told that the ultimate authority, wherever the derivative may be found,
resides in the people alone, and that it will not depend merely on the
comparative ambition or address of the different governments, whether either,
or which of them, will be able to enlarge its sphere of jurisdiction at the
expense of the other. Truth, no less than decency, requires that the event in
every case should be supposed to depend on the sentiments and sanction of
their common constituents.
2 Many considerations, besides those suggested on a
former occasion, seem to place it beyond doubt that the first and most natural
attachment of the people will be to the governments of their respective
States. Into the administration of these a greater number of individuals will
expect to rise. From the gift of these a greater number of offices and
emoluments will flow. By the superintending care of these, all the more
domestic and personal interests of the people will be regulated and provided
for. With the affairs of these, the people will be more familiarly and
minutely conversant. And with the members of these, will a greater proportion
of the people have the ties of personal acquaintance and friendship, and of
family and party attachments; on the side of these, therefore, the popular
bias may well be expected most strongly to incline.
3 Experience speaks the same language in this case. The
federal administration, though hitherto very defective in comparison with what
may be hoped under a better system, had, during the war, and particularly
whilst the independent fund of paper emissions was in credit, an activity and
importance as great as it can well have in any future circumstances whatever.
It was engaged, too, in a course of measures which had for their object the
protection of everything that was dear, and the acquisition of everything that
could be desirable to the people at large. It was, nevertheless, invariably
found, after the transient enthusiasm for the early Congresses was over, that
the attention and attachment of the people were turned anew to their own
particular governments; that the federal council was at no time the idol of
popular favor; and that opposition to proposed enlargements of its powers and
importance was the side usually taken by the men who wished to build their
political consequence on the prepossessions of their fellow-citizens.
4 If, therefore, as has been elsewhere remarked, the
people should in future become more partial to the federal than to the State
governments, the change can only result from such manifest and irresistible
proofs of a better administration, as will overcome all their antecedent
propensities. And in that case, the people ought not surely to be precluded
from giving most of their confidence where they may discover it to be most
due; but even in that case the State governments could have little to
apprehend, because it is only within a certain sphere that the federal power
can, in the nature of things, be advantageously administered.
5 The remaining points on which I propose to compare
the federal and State governments, are the disposition and the faculty they
may respectively possess, to resist and frustrate the measures of each other.
6 It has been already proved that the members of the
federal will be more dependent on the members of the State governments, than
the latter will be on the former. It has appeared also, that the
prepossessions of the people, on whom both will depend, will be more on the
side of the State governments, than of the federal government. So far as the
disposition of each towards the other may be influenced by these causes, the
State governments must clearly have the advantage. But in a distinct and very
important point of view, the advantage will lie on the same side. The
prepossessions, which the members themselves will carry into the federal
government, will generally be favorable to the States; whilst it will rarely
happen, that the members of the State governments will carry into the public
councils a bias in favor of the general government. A local spirit will
infallibly prevail much more in the members of Congress, than a national
spirit will prevail in the legislatures of the particular States. Every one
knows that a great proportion of the errors committed by the State
legislatures proceeds from the disposition of the members to sacrifice the
comprehensive and permanent interest of the State, to the particular and
separate views of the counties or districts in which they reside. And if they
do not sufficiently enlarge their policy to embrace the collective welfare of
their particular State, how can it be imagined that they will make the
aggregate prosperity of the Union, and the dignity and respectability of its
government, the objects of their affections and consultations? For the same
reason that the members of the State legislatures will be unlikely to attach
themselves sufficiently to national objects, the members of the federal
legislature will be likely to attach themselves too much to local objects. The
States will be to the latter what counties and towns are to the former.
Measures will too often be decided according to their probable effect, not on
the national prosperity and happiness, but on the prejudices, interests, and
pursuits of the governments and people of the individual States. What is the
spirit that has in general characterized the proceedings of Congress? A
perusal of their journals, as well as the candid acknowledgments of such as
have had a seat in that assembly, will inform us, that the members have but
too frequently displayed the character, rather of partisans of their
respective States, than of impartial guardians of a common interest; that
where on one occasion improper sacrifices have been made of local
considerations, to the aggrandizement of the federal government, the great
interests of the nation have suffered on a hundred, from an undue attention to
the local prejudices, interests, and views of the particular States. I mean
not by these reflections to insinuate, that the new federal government will
not embrace a more enlarged plan of policy than the existing government may
have pursued; much less, that its views will be as confined as those of the
State legislatures; but only that it will partake sufficiently of the spirit
of both, to be disinclined to invade the rights of the individual States, or
the preorgatives of their governments. The motives on the part of the State
governments, to augment their prerogatives by defalcations from the federal
government, will be overruled by no reciprocal predispositions in the members.
7 Were it admitted, however, that the Federal
government may feel an equal disposition with the State governments to extend
its power beyond the due limits, the latter would still have the advantage in
the means of defeating such encroachments. If an act of a particular State,
though unfriendly to the national government, be generally popular in that
State and should not too grossly violate the oaths of the State officers, it
is executed immediately and, of course, by means on the spot and depending on
the State alone. The opposition of the federal government, or the
interposition of federal officers, would but inflame the zeal of all parties
on the side of the State, and the evil could not be prevented or repaired, if
at all, without the employment of means which must always be resorted to with
reluctance and difficulty. On the other hand, should an unwarrantable measure
of the federal government be unpopular in particular States, which would
seldom fail to be the case, or even a warrantable measure be so, which may
sometimes be the case, the means of opposition to it are powerful and at hand.
The disquietude of the people; their repugnance and, perhaps, refusal to
co-operate with the officers of the Union; the frowns of the executive
magistracy of the State; the embarrassments created by legislative devices,
which would often be added on such occasions, would oppose, in any State,
difficulties not to be despised; would form, in a large State, very serious
impediments; and where the sentiments of several adjoining States happened to
be in unison, would present obstructions which the federal government would
hardly be willing to encounter.
8 But ambitious encroachments of the federal
government, on the authority of the State governments, would not excite the
opposition of a single State, or of a few States only. They would be signals
of general alarm. Every government would espouse the common cause. A
correspondence would be opened. Plans of resistance would be concerted. One
spirit would animate and conduct the whole. The same combinations, in short,
would result from an apprehension of the federal, as was produced by the dread
of a foreign, yoke; and unless the projected innovations should be voluntarily
renounced, the same appeal to a trial of force would be made in the one case
as was made in the other. But what degree of madness could ever drive the
federal government to such an extremity. In the contest with Great Britain,
one part of the empire was employed against the other. The more numerous part
invaded the rights of the less numerous part. The attempt was unjust and
unwise; but it was not in speculation absolutely chimerical. But what would be
the contest in the case we are supposing? Who would be the parties? A few
representatives of the people would be opposed to the people themselves; or
rather one set of representatives would be contending against thirteen sets of
representatives, with the whole body of their common constituents on the side
of the latter.
9 The only refuge left for those who prophesy the
downfall of the State governments is the visionary supposition that the
federal government may previously accumulate a military force for the projects
of ambition. The reasonings contained in these papers must have been employed
to little purpose indeed, if it could be necessary now to disprove the reality
of this danger. That the people and the States should, for a sufficient period
of time, elect an uninterupted succession of men ready to betray both; that
the traitors should, throughout this period, uniformly and systematically
pursue some fixed plan for the extension of the military establishment; that
the governments and the people of the States should silently and patiently
behold the gathering storm, and continue to supply the materials, until it
should be prepared to burst on their own heads, must appear to every one more
like the incoherent dreams of a delirious jealousy, or the misjudged
exaggerations of a counterfeit zeal, than like the sober apprehensions of
genuine patriotism. Extravagant as the supposition is, let it however be made.
Let a regular army, fully equal to the resources of the country, be formed;
and let it be entirely at the devotion of the federal government; still it
would not be going too far to say, that the State governments, with the people
on their side, would be able to repel the danger. The highest number to which,
according to the best computation, a standing army can be carried in any
country, does not exceed one hundredth part of the whole number of souls; or
one twenty-fifth part of the number able to bear arms. This proportion would
not yield, in the United States, an army of more than twenty-five or thirty
thousand men. To these would be opposed a militia amounting to near half a
million of citizens with arms in their hands, officered by men chosen from
among themselves, fighting for their common liberties, and united and
conducted by governments possessing their affections and confidence. It may
well be doubted, whether a militia thus circumstanced could ever be conquered
by such a proportion of regular troops. Those who are best acquainted with the
last successful resistance of this country against the British arms, will be
most inclined to deny the possibility of it. Besides the advantage of being
armed, which the Americans possess over the people of almost every other
nation, the existence of subordinate governments, to which the people are
attached, and by which the militia officers are appointed, forms a barrier
against the enterprises of ambition, more insurmountable than any which a
simple government of any form can admit of. Notwithstanding the military
establishments in the several kingdoms of Europe, which are carried as far as
the public resources will bear, the governments are afraid to trust the people
with arms. And it is not certain, that with this aid alone they would not be
able to shake off their yokes. But were the people to possess the additional
advantages of local governments chosen by themselves, who could collect the
national will and direct the national force, and of officers appointed out of
the militia, by these governments, and attached both to them and to the
militia, it may be affirmed with the greatest assurance, that the throne of
every tyranny in Europe would be speedily overturned in spite of the legions
which surround it. Let us not insult the free and gallant citizens of America
with the suspicion, that they would be less able to defend the rights of which
they would be in actual possession, than the debased subjects of arbitrary
power would be to rescue theirs from the hands of their oppressors. Let us
rather no longer insult them with the supposition that they can ever reduce
themselves to the necessity of making the experiment, by a blind and tame
submission to the long train of insidious measures which must precede and
produce it.
10 The argument under the present head may be put into a
very concise form, which appears altogether conclusive. Either the mode in
which the federal government is to be constructed will render it sufficiently
dependent on the people, or it will not. On the first supposition, it will be
restrained by that dependence from forming schemes obnoxious to their
constituents. On the other supposition, it will not possess the confidence of
the people, and its schemes of usurpation will be easily defeated by the State
governments, who will be supported by the people.
11 On summing up the considerations stated in this and
the last paper, they seem to amount to the most convincing evidence, that the
powers proposed to be lodged in the federal government are as little
formidable to those reserved to the individual States, as they are
indispensably necessary to accomplish the purposes of the Union; and that all
those alarms which have been sounded, of a meditated and consequential
annihilation of the State governments, must, on the most favorable
interpretation, be ascribed to the chimerical fears of the authors of them.
PUBLIUS
FEDERALIST No. 47
The Particular Structure of the New
Government and the Distribution of Power Among Its Different Parts
For the Independent Journal.
Wednesday, January 30, 1788.
MADISON
To the People of the State of New York:
HAVING reviewed the general form of the proposed
government and the general mass of power allotted to it, I proceed to examine
the particular structure of this government, and the distribution of this mass
of power among its constituent parts.
2 One of the principal objections inculcated by the
more respectable adversaries to the Constitution, is its supposed violation of
the political maxim, that the legislative, executive, and judiciary
departments ought to be separate and distinct. In the structure of the federal
government, no regard, it is said, seems to have been paid to this essential
precaution in favor of liberty. The several departments of power are
distributed and blended in such a manner as at once to destroy all symmetry
and beauty of form, and to expose some of the essential parts of the edifice
to the danger of being crushed by the disproportionate weight of other parts.
3 No political truth is certainly of greater intrinsic
value, or is stamped with the authority of more enlightened patrons of
liberty, than that on which the objection is founded. The accumulation of all
powers, legislative, executive, and judiciary, in the same hands, whether of
one, a few, or many, and whether hereditary, selfappointed, or elective, may
justly be pronounced the very definition of tyranny. Were the federal
Constitution, therefore, really chargeable with the accumulation of power, or
with a mixture of powers, having a dangerous tendency to such an accumulation,
no further arguments would be necessary to inspire a universal reprobation of
the system. I persuade myself, however, that it will be made apparent to every
one, that the charge cannot be supported, and that the maxim on which it
relies has been totally misconceived and misapplied. In order to form correct
ideas on this important subject, it will be proper to investigate the sense in
which the preservation of liberty requires that the three great departments of
power should be separate and distinct.
4 The oracle who is always consulted and cited on this
subject is the celebrated Montesquieu. If he be not the author of this
invaluable precept in the science of politics, he has the merit at least of
displaying and recommending it most effectually to the attention of mankind.
Let us endeavor, in the first place, to ascertain his meaning on this point.
5 The British Constitution was to Montesquieu what
Homer has been to the didactic writers on epic poetry. As the latter have
considered the work of the immortal bard as the perfect model from which the
principles and rules of the epic art were to be drawn, and by which all
similar works were to be judged, so this great political critic appears to
have viewed the Constitution of England as the standard, or to use his own
expression, as the mirror of political liberty; and to have delivered, in the
form of elementary truths, the several characteristic principles of that
particular system. That we may be sure, then, not to mistake his meaning in
this case, let us recur to the source from which the maxim was drawn.
6 On the slightest view of the British Constitution, we
must perceive that the legislative, executive, and judiciary departments are
by no means totally separate and distinct from each other. The executive
magistrate forms an integral part of the legislative authority. He alone has
the prerogative of making treaties with foreign sovereigns, which, when made,
have, under certain limitations, the force of legislative acts. All the
members of the judiciary department are appointed by him, can be removed by
him on the address of the two Houses of Parliament, and form, when he pleases
to consult them, one of his constitutional councils. One branch of the
legislative department forms also a great constitutional council to the
executive chief, as, on another hand, it is the sole depositary of judicial
power in cases of impeachment, and is invested with the supreme appellate
jurisdiction in all other cases. The judges, again, are so far connected with
the legislative department as often to attend and participate in its
deliberations, though not admitted to a legislative vote.
7 From these facts, by which Montesquieu was guided, it
may clearly be inferred that, in saying "There can be no liberty where
the legislative and executive powers are united in the same person, or body of
magistrates," or, "if the power of judging be not separated from the
legislative and executive powers," he did not mean that these departments
ought to have no PARTIAL AGENCY in, or no CONTROL over, the acts of each
other. His meaning, as his own words import, and still more conclusively as
illustrated by the example in his eye, can amount to no more than this, that
where the WHOLE power of one department is exercised by the same hands which
possess the WHOLE power of another department, the fundamental principles of a
free constitution are subverted. This would have been the case in the
constitution examined by him, if the king, who is the sole executive
magistrate, had possessed also the complete legislative power, or the supreme
administration of justice; or if the entire legislative body had possessed the
supreme judiciary, or the supreme executive authority. This, however, is not
among the vices of that constitution. The magistrate in whom the whole
executive power resides cannot of himself make a law, though he can put a
negative on every law; nor administer justice in person, though he has the
appointment of those who do administer it. The judges can exercise no
executive prerogative, though they are shoots from the executive stock; nor
any legislative function, though they may be advised with by the legislative
councils. The entire legislature can perform no judiciary act, though by the
joint act of two of its branches the judges may be removed from their offices,
and though one of its branches is possessed of the judicial power in the last
resort. The entire legislature, again, can exercise no executive prerogative,
though one of its branches constitutes the supreme executive magistracy, and
another, on the impeachment of a third, can try and condemn all the
subordinate officers in the executive department.
8 The reasons on which Montesquieu grounds his maxim
are a further demonstration of his meaning. "When the legislative and
executive powers are united in the same person or body," says he,
"there can be no liberty, because apprehensions may arise lest THE SAME
monarch or senate should ENACT tyrannical laws to EXECUTE them in a tyrannical
manner." Again: "Were the power of judging joined with the
legislative, the life and liberty of the subject would be exposed to arbitrary
control, for THE JUDGE would then be THE LEGISLATOR. Were it joined to the
executive power, THE JUDGE might behave with all the violence of AN
OPPRESSOR." Some of these reasons are more fully explained in other
passages; but briefly stated as they are here, they sufficiently establish the
meaning which we have put on this celebrated maxim of this celebrated author.
9 If we look into the constitutions of the several
States, we find that, notwithstanding the emphatical and, in some instances,
the unqualified terms in which this axiom has been laid down, there is not a
single instance in which the several departments of power have been kept
absolutely separate and distinct. New Hampshire, whose constitution was the
last formed, seems to have been fully aware of the impossibility and
inexpediency of avoiding any mixture whatever of these departments, and has
qualified the doctrine by declaring "that the legislative, executive, and
judiciary powers ought to be kept as separate from, and independent of, each
other AS THE NATURE OF A FREE GOVERNMENT WILL ADMIT; OR AS IS CONSISTENT WITH
THAT CHAIN OF CONNECTION THAT BINDS THE WHOLE FABRIC OF THE CONSTITUTION IN
ONE INDISSOLUBLE BOND OF UNITY AND AMITY." Her constitution accordingly
mixes these departments in several respects. The Senate, which is a branch of
the legislative department, is also a judicial tribunal for the trial of
impeachments. The President, who is the head of the executive department, is
the presiding member also of the Senate; and, besides an equal vote in all
cases, has a casting vote in case of a tie. The executive head is himself
eventually elective every year by the legislative department, and his council
is every year chosen by and from the members of the same department. Several
of the officers of state are also appointed by the legislature. And the
members of the judiciary department are appointed by the executive department.
The constitution of Massachusetts has observed a
sufficient though less pointed caution, in expressing this fundamental article
of liberty. It declares "that the legislative department shall never
exercise the executive and judicial powers, or either of them; the executive
shall never exercise the legislative and judicial powers, or either of them;
the judicial shall never exercise the legislative and executive powers, or
either of them." This declaration corresponds precisely with the doctrine
of Montesquieu, as it has been explained, and is not in a single point
violated by the plan of the convention. It goes no farther than to prohibit
any one of the entire departments from exercising the powers of another
department. In the very Constitution to which it is prefixed, a partial
mixture of powers has been admitted. The executive magistrate has a qualified
negative on the legislative body, and the Senate, which is a part of the
legislature, is a court of impeachment for members both of the executive and
judiciary departments. The members of the judiciary department, again, are
appointable by the executive department, and removable by the same authority
on the address of the two legislative branches. Lastly, a number of the
officers of government are annually appointed by the legislative department.
As the appointment to offices, particularly executive offices, is in its
nature an executive function, the compilers of the Constitution have, in this
last point at least, violated the rule established by themselves.
10 I pass over the constitutions of Rhode Island and
Connecticut, because they were formed prior to the Revolution, and even before
the principle under examination had become an object of political attention.
11 The constitution of New York contains no declaration
on this subject; but appears very clearly to have been framed with an eye to
the danger of improperly blending the different departments. It gives,
nevertheless, to the executive magistrate, a partial control over the
legislative department; and, what is more, gives a like control to the
judiciary department; and even blends the executive and judiciary departments
in the exercise of this control. In its council of appointment members of the
legislative are associated with the executive authority, in the appointment of
officers, both executive and judiciary. And its court for the trial of
impeachments and correction of errors is to consist of one branch of the
legislature and the principal members of the judiciary department.
12 The constitution of New Jersey has blended the
different powers of government more than any of the preceding. The governor,
who is the executive magistrate, is appointed by the legislature; is
chancellor and ordinary, or surrogate of the State; is a member of the Supreme
Court of Appeals, and president, with a casting vote, of one of the
legislative branches. The same legislative branch acts again as executive
council of the governor, and with him constitutes the Court of Appeals. The
members of the judiciary department are appointed by the legislative
department and removable by one branch of it, on the impeachment of the other.
13 According to the constitution of Pennsylvania, the
president, who is the head of the executive department, is annually elected by
a vote in which the legislative department predominates. In conjunction with
an executive council, he appoints the members of the judiciary department, and
forms a court of impeachment for trial of all officers, judiciary as well as
executive. The judges of the Supreme Court and justices of the peace seem also
to be removable by the legislature; and the executive power of pardoning in
certain cases, to be referred to the same department. The members of the
executive counoil are made EX-OFFICIO justices of peace throughout the State.
14 In Delaware, the chief executive magistrate is
annually elected by the legislative department. The speakers of the two
legislative branches are vice-presidents in the executive department. The
executive chief, with six others, appointed, three by each of the legislative
branches constitutes the Supreme Court of Appeals; he is joined with the
legislative department in the appointment of the other judges. Throughout the
States, it appears that the members of the legislature may at the same time be
justices of the peace; in this State, the members of one branch of it are
EX-OFFICIO justices of the peace; as are also the members of the executive
council. The principal officers of the executive department are appointed by
the legislative; and one branch of the latter forms a court of impeachments.
All officers may be removed on address of the legislature.
15 Maryland has adopted the maxim in the most
unqualified terms; declaring that the legislative, executive, and judicial
powers of government ought to be forever separate and distinct from each
other. Her constitution, notwithstanding, makes the executive magistrate
appointable by the legislative department; and the members of the judiciary by
the executive department.
16 The language of Virginia is still more pointed on
this subject. Her constitution declares, "that the legislative,
executive, and judiciary departments shall be separate and distinct; so that
neither exercise the powers properly belonging to the other; nor shall any
person exercise the powers of more than one of them at the same time, except
that the justices of county courts shall be eligible to either House of
Assembly." Yet we find not only this express exception, with respect to
the members of the irferior courts, but that the chief magistrate, with his
executive council, are appointable by the legislature; that two members of the
latter are triennially displaced at the pleasure of the legislature; and that
all the principal offices, both executive and judiciary, are filled by the
same department. The executive prerogative of pardon, also, is in one case
vested in the legislative department.
17 The constitution of North Carolina, which declares
"that the legislative, executive, and supreme judicial powers of
government ought to be forever separate and distinct from each other,"
refers, at the same time, to the legislative department, the appointment not
only of the executive chief, but all the principal officers within both that
and the judiciary department.
18 In South Carolina, the constitution makes the
executive magistracy eligible by the legislative department. It gives to the
latter, also, the appointment of the members of the judiciary department,
including even justices of the peace and sheriffs; and the appointment of
officers in the executive department, down to captains in the army and navy of
the State.
19 In the constitution of Georgia, where it is declared
"that the legislative, executive, and judiciary departments shall be
separate and distinct, so that neither exercise the powers properly belonging
to the other," we find that the executive department is to be filled by
appointments of the legislature; and the executive prerogative of pardon to be
finally exercised by the same authority. Even justices of the peace are to be
appointed by the legislature.
In citing these cases, in which the legislative,
executive, and judiciary departments have not been kept totally separate and
distinct, I wish not to be regarded as an advocate for the particular
organizations of the several State governments. I am fully aware that among
the many excellent principles which they exemplify, they carry strong marks of
the haste, and still stronger of the inexperience, under which they were
framed. It is but too obvious that in some instances the fundamental principle
under consideration has been violated by too great a mixture, and even an
actual consolidation, of the different powers; and that in no instance has a
competent provision been made for maintaining in practice the separation
delineated on paper. What I have wished to evince is, that the charge brought
against the proposed Constitution, of violating the sacred maxim of free
government, is warranted neither by the real meaning annexed to that maxim by
its author, nor by the sense in which it has hitherto been understood in
America. This interesting subject will be resumed in the ensuing paper.
PUBLIUS
FEDERALIST No. 48
These Departments Should Not Be So Far
Separated as to Have No Constitutional Control Over Each Other
From the New York Packet.
Friday, February 1, 1788.
MADISON
To the People of the State of New York:
IT WAS shown in the last paper that the political
apothegm there examined does not require that the legislative, executive, and
judiciary departments should be wholly unconnected with each other. I shall
undertake, in the next place, to show that unless these departments be so far
connected and blended as to give to each a constitutional control over the
others, the degree of separation which the maxim requires, as essential to a
free government, can never in practice be duly maintained.
2 It is agreed on all sides, that the powers properly
belonging to one of the departments ought not to be directly and completely
administered by either of the other departments. It is equally evident, that
none of them ought to possess, directly or indirectly, an overruling influence
over the others, in the administration of their respective powers. It will not
be denied, that power is of an encroaching nature, and that it ought to be
effectually restrained from passing the limits assigned to it. After
discriminating, therefore, in theory, the several classes of power, as they
may in their nature be legislative, executive, or judiciary, the next and most
difficult task is to provide some practical security for each, against the
invasion of the others. What this security ought to be, is the great problem
to be solved.
3 Will it be sufficient to mark, with precision, the
boundaries of these departments, in the constitution of the government, and to
trust to these parchment barriers against the encroaching spirit of power?
This is the security which appears to have been principally relied on by the
compilers of most of the American constitutions. But experience assures us,
that the efficacy of the provision has been greatly overrated; and that some
more adequate defense is indispensably necessary for the more feeble, against
the more powerful, members of the government. The legislative department is
everywhere extending the sphere of its activity, and drawing all power into
its impetuous vortex.
4 The founders of our republics have so much merit for
the wisdom which they have displayed, that no task can be less pleasing than
that of pointing out the errors into which they have fallen. A respect for
truth, however, obliges us to remark, that they seem never for a moment to
have turned their eyes from the danger to liberty from the overgrown and
all-grasping prerogative of an hereditary magistrate, supported and fortified
by an hereditary branch of the legislative authority. They seem never to have
recollected the danger from legislative usurpations, which, by assembling all
power in the same hands, must lead to the same tyranny as is threatened by
executive usurpations.
5 In a government where numerous and extensive
prerogatives are placed in the hands of an hereditary monarch, the executive
department is very justly regarded as the source of danger, and watched with
all the jealousy which a zeal for liberty ought to inspire. In a democracy,
where a multitude of people exercise in person the legislative functions, and
are continually exposed, by their incapacity for regular deliberation and
concerted measures, to the ambitious intrigues of their executive magistrates,
tyranny may well be apprehended, on some favorable emergency, to start up in
the same quarter. But in a representative republic, where the executive
magistracy is carefully limited; both in the extent and the duration of its
power; and where the legislative power is exercised by an assembly, which is
inspired, by a supposed influence over the people, with an intrepid confidence
in its own strength; which is sufficiently numerous to feel all the passions
which actuate a multitude, yet not so numerous as to be incapable of pursuing
the objects of its passions, by means which reason prescribes; it is against
the enterprising ambition of this department that the people ought to indulge
all their jealousy and exhaust all their precautions.
6 The legislative department derives a superiority in
our governments from other circumstances. Its constitutional powers being at
once more extensive, and less susceptible of precise limits, it can, with the
greater facility, mask, under complicated and indirect measures, the
encroachments which it makes on the co-ordinate departments. It is not
unfrequently a question of real nicety in legislative bodies, whether the
operation of a particular measure will, or will not, extend beyond the
legislative sphere. On the other side, the executive power being restrained
within a narrower compass, and being more simple in its nature, and the
judiciary being described by landmarks still less uncertain, projects of
usurpation by either of these departments would immediately betray and defeat
themselves. Nor is this all: as the legislative department alone has access to
the pockets of the people, and has in some constitutions full discretion, and
in all a prevailing influence, over the pecuniary rewards of those who fill
the other departments, a dependence is thus created in the latter, which gives
still greater facility to encroachments of the former.
7 I have appealed to our own experience for the truth
of what I advance on this subject. Were it necessary to verify this experience
by particular proofs, they might be multiplied without end. I might find a
witness in every citizen who has shared in, or been attentive to, the course
of public administrations. I might collect vouchers in abundance from the
records and archives of every State in the Union. But as a more concise, and
at the same time equally satisfactory, evidence, I will refer to the example
of two States, attested by two unexceptionable authorities.
8 The first example is that of Virginia, a State which,
as we have seen, has expressly declared in its constitution, that the three
great departments ought not to be intermixed. The authority in support of it
is Mr. Jefferson, who, besides his other advantages for remarking the
operation of the government, was himself the chief magistrate of it. In order
to convey fully the ideas with which his experience had impressed him on this
subject, it will be necessary to quote a passage of some length from his very
interesting Notes on the State of Virginia, p. 195. "All the powers of
government, legislative, executive, and judiciary, result to the legislative
body. The concentrating these in the same hands, is precisely the definition
of despotic government. It will be no alleviation, that these powers will be
exercised by a plurality of hands, and not by a single one. One hundred and
seventy-three despots would surely be as oppressive as one. Let those who
doubt it, turn their eyes on the republic of Venice. As little will it avail
us, that they are chosen by ourselves. An ELECTIVE DESPOTISM was not the
government we fought for; but one which should not only be founded on free
principles, but in which the powers of government should be so divided and
balanced among several bodies of magistracy, as that no one could transcend
their legal limits, without being effectually checked and restrained by the
others. For this reason, that convention which passed the ordinance of
government, laid its foundation on this basis, that the legislative,
executive, and judiciary departments should be separate and distinct, so that
no person should exercise the powers of more than one of them at the same
time. BUT NO BARRIER WAS PROVIDED BETWEEN THESE SEVERAL POWERS. The judiciary
and the executive members were left dependent on the legislative for their
subsistence in office, and some of them for their continuance in it. If,
therefore, the legislature assumes executive and judiciary powers, no
opposition is likely to be made; nor, if made, can be effectual; because in
that case they may put their proceedings into the form of acts of Assembly,
which will render them obligatory on the other branches. They have
accordingly, IN MANY instances, DECIDED RIGHTS which should have been left to
JUDICIARY CONTROVERSY, and THE DIRECTION OF THE EXECUTIVE, DURING THE WHOLE
TIME OF THEIR SESSION, IS BECOMING HABITUAL AND FAMILIAR."
9 The other State which I shall take for an example is
Pennsylvania; and the other authority, the Council of Censors, which assembled
in the years 1783 and 1784. A part of the duty of this body, as marked out by
the constitution, was "to inquire whether the constitution had been
preserved inviolate in every part; and whether the legislative and executive
branches of government had performed their duty as guardians of the people, or
assumed to themselves, or exercised, other or greater powers than they are
entitled to by the constitution. " In the execution of this trust, the
council were necessarily led to a comparison of both the legislative and
executive proceedings, with the constitutional powers of these departments;
and from the facts enumerated, and to the truth of most of which both sides in
the council subscribed, it appears that the constitution had been flagrantly
violated by the legislature in a variety of important instances.
10 A great number of laws had been passed, violating,
without any apparent necessity, the rule requiring that all bills of a public
nature shall be previously printed for the consideration of the people;
although this is one of the precautions chiefly relied on by the constitution
against improper acts of legislature.
11 The constitutional trial by jury had been violated,
and powers assumed which had not been delegated by the constitution.
Executive powers had been usurped.
12 The salaries of the judges, which the constitution
expressly requires to be fixed, had been occasionally varied; and cases
belonging to the judiciary department frequently drawn within legislative
cognizance and determination.
13 Those who wish to see the several particulars falling
under each of these heads, may consult the journals of the council, which are
in print. Some of them, it will be found, may be imputable to peculiar
circumstances connected with the war; but the greater part of them may be
considered as the spontaneous shoots of an ill-constituted government.
14 It appears, also, that the executive department had
not been innocent of frequent breaches of the constitution. There are three
observations, however, which ought to be made on this head: FIRST, a great
proportion of the instances were either immediately produced by the
necessities of the war, or recommended by Congress or the commander-in-chief;
SECOND, in most of the other instances, they conformed either to the declared
or the known sentiments of the legislative department; THIRD, the executive
department of Pennsylvania is distinguished from that of the other States by
the number of members composing it. In this respect, it has as much affinity
to a legislative assembly as to an executive council. And being at once exempt
from the restraint of an individual responsibility for the acts of the body,
and deriving confidence from mutual example and joint influence, unauthorized
measures would, of course, be more freely hazarded, than where the executive
department is administered by a single hand, or by a few hands.
15 The conclusion which I am warranted in drawing from
these observations is, that a mere demarcation on parchment of the
constitutional limits of the several departments, is not a sufficient guard
against those encroachments which lead to a tyrannical concentration of all
the powers of government in the same hands.
PUBLIUS
FEDERALIST No. 49
Method of Guarding Against the
Encroachments of Any One Department of Government by Appealing to the People
Through a Convention For the Independent Journal.
Saturday, February 2, 1788.
MADISON
To the People of the State of New York:
THE author of the "Notes on the State of
Virginia," quoted in the last paper, has subjoined to that valuable work
the draught of a constitution, which had been prepared in order to be laid
before a convention, expected to be called in 1783, by the legislature, for
the establishment of a constitution for that commonwealth. The plan, like
every thing from the same pen, marks a turn of thinking, original,
comprehensive, and accurate; and is the more worthy of attention as it equally
displays a fervent attachment to republican government and an enlightened view
of the dangerous propensities against which it ought to be guarded. One of the
precautions which he proposes, and on which he appears ultimately to rely as a
palladium to the weaker departments of power against the invasions of the
stronger, is perhaps altogether his own, and as it immediately relates to the
subject of our present inquiry, ought not to be overlooked.
2 His proposition is, "that whenever any two of
the three branches of government shall concur in opinion, each by the voices
of two thirds of their whole number, that a convention is necessary for
altering the constitution, or CORRECTING BREACHES OF IT, a convention shall be
called for the purpose."
3 As the people are the only legitimate fountain of
power, and it is from them that the constitutional charter, under which the
several branches of government hold their power, is derived, it seems strictly
consonant to the republican theory, to recur to the same original authority,
not only whenever it may be necessary to enlarge, diminish, or new-model the
powers of the government, but also whenever any one of the departments may
commit encroachments on the chartered authorities of the others. The several
departments being perfectly co-ordinate by the terms of their common
commission, none of them, it is evident, can pretend to an exclusive or
superior right of settling the boundaries between their respective powers; and
how are the encroachments of the stronger to be prevented, or the wrongs of
the weaker to be redressed, without an appeal to the people themselves, who,
as the grantors of the commissions, can alone declare its true meaning, and
enforce its observance?
4 There is certainly great force in this reasoning, and
it must be allowed to prove that a constitutional road to the decision of the
people ought to be marked out and kept open, for certain great and
extraordinary occasions. But there appear to be insuperable objections against
the proposed recurrence to the people, as a provision in all cases for keeping
the several departments of power within their constitutional limits.
5 In the first place, the provision does not reach the
case of a combination of two of the departments against the third. If the
legislative authority, which possesses so many means of operating on the
motives of the other departments, should be able to gain to its interest
either of the others, or even one third of its members, the remaining
department could derive no advantage from its remedial provision. I do not
dwell, however, on this objection, because it may be thought to be rather
against the modification of the principle, than against the principle itself.
6 In the next place, it may be considered as an
objection inherent in the principle, that as every appeal to the people would
carry an implication of some defect in the government, frequent appeals would,
in a great measure, deprive the government of that veneration which time
bestows on every thing, and without which perhaps the wisest and freest
governments would not possess the requisite stability. If it be true that all
governments rest on opinion, it is no less true that the strength of opinion
in each individual, and its practical influence on his conduct, depend much on
the number which he supposes to have entertained the same opinion. The reason
of man, like man himself, is timid and cautious when left alone, and acquires
firmness and confidence in proportion to the number with which it is
associated. When the examples which fortify opinion are ANCIENT as well as
NUMEROUS, they are known to have a double effect. In a nation of philosophers,
this consideration ought to be disregarded. A reverence for the laws would be
sufficiently inculcated by the voice of an enlightened reason. But a nation of
philosophers is as little to be expected as the philosophical race of kings
wished for by Plato. And in every other nation, the most rational government
will not find it a superfluous advantage to have the prejudices of the
community on its side.
7 The danger of disturbing the public tranquillity by
interesting too strongly the public passions, is a still more serious
objection against a frequent reference of constitutional questions to the
decision of the whole society. Notwithstanding the success which has attended
the revisions of our established forms of government, and which does so much
honor to the virtue and intelligence of the people of America, it must be
confessed that the experiments are of too ticklish a nature to be
unnecessarily multiplied. We are to recollect that all the existing
constitutions were formed in the midst of a danger which repressed the
passions most unfriendly to order and concord; of an enthusiastic confidence
of the people in their patriotic leaders, which stifled the ordinary diversity
of opinions on great national questions; of a universal ardor for new and
opposite forms, produced by a universal resentment and indignation against the
ancient government; and whilst no spirit of party connected with the changes
to be made, or the abuses to be reformed, could mingle its leaven in the
operation. The future situations in which we must expect to be usually placed,
do not present any equivalent security against the danger which is
apprehended.
8 But the greatest objection of all is, that the
decisions which would probably result from such appeals would not answer the
purpose of maintaining the constitutional equilibrium of the government. We
have seen that the tendency of republican governments is to an aggrandizement
of the legislative at the expense of the other departments. The appeals to the
people, therefore, would usually be made by the executive and judiciary
departments. But whether made by one side or the other, would each side enjoy
equal advantages on the trial? Let us view their different situations. The
members of the executive and judiciary departments are few in number, and can
be personally known to a small part only of the people. The latter, by the
mode of their appointment, as well as by the nature and permanency of it, are
too far removed from the people to share much in their prepossessions. The
former are generally the objects of jealousy, and their administration is
always liable to be discolored and rendered unpopular. The members of the
legislative department, on the other hand, are numberous. They are distributed
and dwell among the people at large. Their connections of blood, of
friendship, and of acquaintance embrace a great proportion of the most
influential part of the society. The nature of their public trust implies a
personal influence among the people, and that they are more immediately the
confidential guardians of the rights and liberties of the people. With these
advantages, it can hardly be supposed that the adverse party would have an
equal chance for a favorable issue.
9 But the legislative party would not only be able to
plead their cause most successfully with the people. They would probably be
constituted themselves the judges. The same influence which had gained them an
election into the legislature, would gain them a seat in the convention. If
this should not be the case with all, it would probably be the case with many,
and pretty certainly with those leading characters, on whom every thing
depends in such bodies. The convention, in short, would be composed chiefly of
men who had been, who actually were, or who expected to be, members of the
department whose conduct was arraigned. They would consequently be parties to
the very question to be decided by them.
10 It might, however, sometimes happen, that appeals
would be made under circumstances less adverse to the executive and judiciary
departments. The usurpations of the legislature might be so flagrant and so
sudden, as to admit of no specious coloring. A strong party among themselves
might take side with the other branches. The executive power might be in the
hands of a peculiar favorite of the people. In such a posture of things, the
public decision might be less swayed by prepossessions in favor of the
legislative party. But still it could never be expected to turn on the true
merits of the question. It would inevitably be connected with the spirit of
pre-existing parties, or of parties springing out of the question itself. It
would be connected with persons of distinguished character and extensive
influence in the community. It would be pronounced by the very men who had
been agents in, or opponents of, the measures to which the decision would
relate. The PASSIONS, therefore, not the REASON, of the public would sit in
judgment. But it is the reason, alone, of the public, that ought to control
and regulate the government. The passions ought to be controlled and regulated
by the government.
11 We found in the last paper, that mere declarations in
the written constitution are not sufficient to restrain the several
departments within their legal rights. It appears in this, that occasional
appeals to the people would be neither a proper nor an effectual provision for
that purpose. How far the provisions of a different nature contained in the
plan above quoted might be adequate, I do not examine. Some of them are
unquestionably founded on sound political principles, and all of them are
framed with singular ingenuity and precision.
PUBLIUS
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