THE FEDERALIST PAPERS
Periodical Appeals to the People
Considered From the New York Packet.
Tuesday, February 5, 1788
MADISON
TABLE OF CONTENTS
To the People of the State of New York:
FEDERALIST No. 50
IT MAY be contended, perhaps, that instead of
OCCASIONAL appeals to the people, which are liable to the objections urged
against them, PERIODICAL appeals are the proper and adequate means of
PREVENTING AND CORRECTING INFRACTIONS OF THE CONSTITUTION.
2 It will be attended to, that in the examination of
these expedients, I confine myself to their aptitude for ENFORCING the
Constitution, by keeping the several departments of power within their due
bounds, without particularly considering them as provisions for ALTERING the
Constitution itself. In the first view, appeals to the people at fixed periods
appear to be nearly as ineligible as appeals on particular occasions as they
emerge. If the periods be separated by short intervals, the measures to be
reviewed and rectified will have been of recent date, and will be connected
with all the circumstances which tend to vitiate and pervert the result of
occasional revisions. If the periods be distant from each other, the same
remark will be applicable to all recent measures; and in proportion as the
remoteness of the others may favor a dispassionate review of them, this
advantage is inseparable from inconveniences which seem to counterbalance it.
In the first place, a distant prospect of public censure would be a very
feeble restraint on power from those excesses to which it might be urged by
the force of present motives. Is it to be imagined that a legislative
assembly, consisting of a hundred or two hundred members, eagerly bent on some
favorite object, and breaking through the restraints of the Constitution in
pursuit of it, would be arrested in their career, by considerations drawn from
a censorial revision of their conduct at the future distance of ten, fifteen,
or twenty years? In the next place, the abuses would often have completed
their mischievous effects before the remedial provision would be applied. And
in the last place, where this might not be the case, they would be of long
standing, would have taken deep root, and would not easily be extirpated.
3 The scheme of revising the constitution, in order to
correct recent breaches of it, as well as for other purposes, has been
actually tried in one of the States. One of the objects of the Council of
Censors which met in Pennsylvania in 1783 and 1784, was, as we have seen, to
inquire, "whether the constitution had been violated, and whether the
legislative and executive departments had encroached upon each other."
This important and novel experiment in politics merits, in several points of
view, very particular attention. In some of them it may, perhaps, as a single
experiment, made under circumstances somewhat peculiar, be thought to be not
absolutely conclusive. But as applied to the case under consideration, it
involves some facts, which I venture to remark, as a complete and satisfactory
illustration of the reasoning which I have employed.
4 First. It appears, from the names of the gentlemen
who composed the council, that some, at least, of its most active members had
also been active and leading characters in the parties which pre-existed in
the State.
5 Second. It appears that the same active and leading
members of the council had been active and influential members of the
legislative and executive branches, within the period to be reviewed; and even
patrons or opponents of the very measures to be thus brought to the test of
the constitution. Two of the members had been vice-presidents of the State,
and several other members of the executive council, within the seven preceding
years. One of them had been speaker, and a number of others distinguished
members, of the legislative assembly within the same period.
6 Third. Every page of their proceedings witnesses the
effect of all these circumstances on the temper of their deliberations.
Throughout the continuance of the council, it was split into two fixed and
violent parties. The fact is acknowledged and lamented by themselves. Had this
not been the case, the face of their proceedings exhibits a proof equally
satisfactory. In all questions, however unimportant in themselves, or
unconnected with each other, the same names stand invariably contrasted on the
opposite columns. Every unbiased observer may infer, without danger of
mistake, and at the same time without meaning to reflect on either party, or
any individuals of either party, that, unfortunately, PASSION, not REASON,
must have presided over their decisions. When men exercise their reason coolly
and freely on a variety of distinct questions, they inevitably fall into
different opinions on some of them. When they are governed by a common
passion, their opinions, if they are so to be called, will be the same.
7 Fourth. It is at least problematical, whether the
decisions of this body do not, in several instances, misconstrue the limits
prescribed for the legislative and executive departments, instead of reducing
and limiting them within their constitutional places.
8 Fifth. I have never understood that the decisions of
the council on constitutional questions, whether rightly or erroneously
formed, have had any effect in varying the practice founded on legislative
constructions. It even appears, if I mistake not, that in one instance the
contemporary legislature denied the constructions of the council, and actually
prevailed in the contest.
9 This censorial body, therefore, proves at the same
time, by its researches, the existence of the disease, and by its example, the
inefficacy of the remedy.
10 This conclusion cannot be invalidated by alleging
that the State in which the experiment was made was at that crisis, and had
been for a long time before, violently heated and distracted by the rage of
party. Is it to be presumed, that at any future septennial epoch the same
State will be free from parties? Is it to be presumed that any other State, at
the same or any other given period, will be exempt from them? Such an event
ought to be neither presumed nor desired; because an extinction of parties
necessarily implies either a universal alarm for the public safety, or an
absolute extinction of liberty.
11 Were the precaution taken of excluding from the
assemblies elected by the people, to revise the preceding administration of
the government, all persons who should have been concerned with the government
within the given period, the difficulties would not be obviated. The important
task would probably devolve on men, who, with inferior capacities, would in
other respects be little better qualified. Although they might not have been
personally concerned in the administration, and therefore not immediately
agents in the measures to be examined, they would probably have been involved
in the parties connected with these measures, and have been elected under
their auspices.
PUBLIUS
FEDERALIST No. 51
The Structure of the Government Must
Furnish the Proper Checks and Balances Between the Different Departments
For the Independent Journal.
Wednesday, February 6, 1788.
MADISON
To the People of the State of New York:
TO WHAT expedient, then, shall we finally resort, for
maintaining in practice the necessary partition of power among the several
departments, as laid down in the Constitution? The only answer that can be
given is, that as all these exterior provisions are found to be inadequate,
the defect must be supplied, by so contriving the interior structure of the
government as that its several constituent parts may, by their mutual
relations, be the means of keeping each other in their proper places. Without
presuming to undertake a full development of this important idea, I will
hazard a few general observations, which may perhaps place it in a clearer
light, and enable us to form a more correct judgment of the principles and
structure of the government planned by the convention.
2 In order to lay a due foundation for that separate
and distinct exercise of the different powers of government, which to a
certain extent is admitted on all hands to be essential to the preservation of
liberty, it is evident that each department should have a will of its own; and
consequently should be so constituted that the members of each should have as
little agency as possible in the appointment of the members of the others.
Were this principle rigorously adhered to, it would require that all the
appointments for the supreme executive, legislative, and judiciary
magistracies should be drawn from the same fountain of authority, the people,
through channels having no communication whatever with one another. Perhaps
such a plan of constructing the several departments would be less difficult in
practice than it may in contemplation appear. Some difficulties, however, and
some additional expense would attend the execution of it. Some deviations,
therefore, from the principle must be admitted. In the constitution of the
judiciary department in particular, it might be inexpedient to insist
rigorously on the principle: first, because peculiar qualifications being
essential in the members, the primary consideration ought to be to select that
mode of choice which best secures these qualifications; secondly, because the
permanent tenure by which the appointments are held in that department, must
soon destroy all sense of dependence on the authority conferring them.
3 It is equally evident, that the members of each
department should be as little dependent as possible on those of the others,
for the emoluments annexed to their offices. Were the executive magistrate, or
the judges, not independent of the legislature in this particular, their
independence in every other would be merely nominal.
4 But the great security against a gradual
concentration of the several powers in the same department, consists in giving
to those who administer each department the necessary constitutional means and
personal motives to resist encroachments of the others. The provision for
defense must in this, as in all other cases, be made commensurate to the
danger of attack. Ambition must be made to counteract ambition. The interest
of the man must be connected with the constitutional rights of the place. It
may be a reflection on human nature, that such devices should be necessary to
control the abuses of government. But what is government itself, but the
greatest of all reflections on human nature? If men were angels, no government
would be necessary. If angels were to govern men, neither external nor
internal controls on government would be necessary. In framing a government
which is to be administered by men over men, the great difficulty lies in
this: you must first enable the government to control the governed; and in the
next place oblige it to control itself. A dependence on the people is, no
doubt, the primary control on the government; but experience has taught
mankind the necessity of auxiliary precautions.
5 This policy of supplying, by opposite and rival
interests, the defect of better motives, might be traced through the whole
system of human affairs, private as well as public. We see it particularly
displayed in all the subordinate distributions of power, where the constant
aim is to divide and arrange the several offices in such a manner as that each
may be a check on the other -- that the private interest of every individual
may be a sentinel over the public rights. These inventions of prudence cannot
be less requisite in the distribution of the supreme powers of the State.
6 But it is not possible to give to each department an
equal power of self-defense. In republican government, the legislative
authority necessarily predominates. The remedy for this inconveniency is to
divide the legislature into different branches; and to render them, by
different modes of election and different principles of action, as little
connected with each other as the nature of their common functions and their
common dependence on the society will admit. It may even be necessary to guard
against dangerous encroachments by still further precautions. As the weight of
the legislative authority requires that it should be thus divided, the
weakness of the executive may require, on the other hand, that it should be
fortified. An absolute negative on the legislature appears, at first view, to
be the natural defense with which the executive magistrate should be armed.
But perhaps it would be neither altogether safe nor alone sufficient. On
ordinary occasions it might not be exerted with the requisite firmness, and on
extraordinary occasions it might be perfidiously abused. May not this defect
of an absolute negative be supplied by some qualified connection between this
weaker department and the weaker branch of the stronger department, by which
the latter may be led to support the constitutional rights of the former,
without being too much detached from the rights of its own department?
7 If the principles on which these observations are
founded be just, as I persuade myself they are, and they be applied as a
criterion to the several State constitutions, and to the federal Constitution
it will be found that if the latter does not perfectly correspond with them,
the former are infinitely less able to bear such a test.
8 There are, moreover, two considerations particularly
applicable to the federal system of America, which place that system in a very
interesting point of view.
9 First. In a single republic, all the power
surrendered by the people is submitted to the administration of a single
government; and the usurpations are guarded against by a division of the
government into distinct and separate departments. In the compound republic of
America, the power surrendered by the people is first divided between two
distinct governments, and then the portion allotted to each subdivided among
distinct and separate departments. Hence a double security arises to the
rights of the people. The different governments will control each other, at
the same time that each will be controlled by itself.
10 Second. It is of great importance in a republic not
only to guard the society against the oppression of its rulers, but to guard
one part of the society against the injustice of the other part. Different
interests necessarily exist in different classes of citizens. If a majority be
united by a common interest, the rights of the minority will be insecure.
There are but two methods of providing against this evil: the one by creating
a will in the community independent of the majority -- that is, of the society
itself; the other, by comprehending in the society so many separate
descriptions of citizens as will render an unjust combination of a majority of
the whole very improbable, if not impracticable. The first method prevails in
all governments possessing an hereditary or self-appointed authority. This, at
best, is but a precarious security; because a power independent of the society
may as well espouse the unjust views of the major, as the rightful interests
of the minor party, and may possibly be turned against both parties. The
second method will be exemplified in the federal republic of the United
States. Whilst all authority in it will be derived from and dependent on the
society, the society itself will be broken into so many parts, interests, and
classes of citizens, that the rights of individuals, or of the minority, will
be in little danger from interested combinations of the majority. In a free
government the security for civil rights must be the same as that for
religious rights. It consists in the one case in the multiplicity of
interests, and in the other in the multiplicity of sects. The degree of
security in both cases will depend on the number of interests and sects; and
this may be presumed to depend on the extent of country and number of people
comprehended under the same government. This view of the subject must
particularly recommend a proper federal system to all the sincere and
considerate friends of republican government, since it shows that in exact
proportion as the territory of the Union may be formed into more circumscribed
Confederacies, or States oppressive combinations of a majority will be
facilitated: the best security, under the republican forms, for the rights of
every class of citizens, will be diminished: and consequently the stability
and independence of some member of the government, the only other security,
must be proportionately increased. Justice is the end of government. It is the
end of civil society. It ever has been and ever will be pursued until it be
obtained, or until liberty be lost in the pursuit. In a society under the
forms of which the stronger faction can readily unite and oppress the weaker,
anarchy may as truly be said to reign as in a state of nature, where the
weaker individual is not secured against the violence of the stronger; and as,
in the latter state, even the stronger individuals are prompted, by the
uncertainty of their condition, to submit to a government which may protect
the weak as well as themselves; so, in the former state, will the more
powerful factions or parties be gradnally induced, by a like motive, to wish
for a government which will protect all parties, the weaker as well as the
more powerful. It can be little doubted that if the State of Rhode Island was
separated from the Confederacy and left to itself, the insecurity of rights
under the popular form of government within such narrow limits would be
displayed by such reiterated oppressions of factious majorities that some
power altogether independent of the people would soon be called for by the
voice of the very factions whose misrule had proved the necessity of it. In
the extended republic of the United States, and among the great variety of
interests, parties, and sects which it embraces, a coalition of a majority of
the whole society could seldom take place on any other principles than those
of justice and the general good; whilst there being thus less danger to a
minor from the will of a major party, there must be less pretext, also, to
provide for the security of the former, by introducing into the government a
will not dependent on the latter, or, in other words, a will independent of
the society itself. It is no less certain than it is important,
notwithstanding the contrary opinions which have been entertained, that the
larger the society, provided it lie within a practical sphere, the more duly
capable it will be of self-government. And happily for the REPUBLICAN CAUSE,
the practicable sphere may be carried to a very great extent, by a judicious
modification and mixture of the FEDERAL PRINCIPLE.
PUBLIUS
FEDERALIST No. 52
The House of Representatives From the
New York Packet.
Friday, February 8, 1788.
MADISON
To the People of the State of New York:
FROM the more general inquiries pursued in the four
last papers, I pass on to a more particular examination of the several parts
of the government. I shall begin with the House of Representatives.
The first view to be taken of this part of the
government relates to the qualifications of the electors and the elected.
Those of the former are to be the same with those of the electors of the most
numerous branch of the State legislatures. The definition of the right of
suffrage is very justly regarded as a fundamental article of republican
government. It was incumbent on the convention, therefore, to define and
establish this right in the Constitution. To have left it open for the
occasional regulation of the Congress, would have been improper for the reason
just mentioned. To have submitted it to the legislative discretion of the
States, would have been improper for the same reason; and for the additional
reason that it would have rendered too dependent on the State governments that
branch of the federal government which ought to be dependent on the people
alone. To have reduced the different qualifications in the different States to
one uniform rule, would probably have been as dissatisfactory to some of the
States as it would have been difficult to the convention. The provision made
by the convention appears, therefore, to be the best that lay within their
option. It must be satisfactory to every State, because it is conformable to
the standard already established, or which may be established, by the State
itself. It will be safe to the United States, because, being fixed by the
State constitutions, it is not alterable by the State governments, and it
cannot be feared that the people of the States will alter this part of their
constitutions in such a manner as to abridge the rights secured to them by the
federal Constitution.
2 The qualifications of the elected, being less
carefully and properly defined by the State constitutions, and being at the
same time more susceptible of uniformity, have been very properly considered
and regulated by the convention. A representative of the United States must be
of the age of twenty-five years; must have been seven years a citizen of the
United States; must, at the time of his election, be an inhabitant of the
State he is to represent; and, during the time of his service, must be in no
office under the United States. Under these reasonable limitations, the door
of this part of the federal government is open to merit of every description,
whether native or adoptive, whether young or old, and without regard to
poverty or wealth, or to any particular profession of religious faith.
3 The term for which the representatives are to be
elected falls under a second view which may be taken of this branch. In order
to decide on the propriety of this article, two questions must be considered:
first, whether biennial elections will, in this case, be safe; secondly,
whether they be necessary or useful.
4 First. As it is essential to liberty that the
government in general should have a common interest with the people, so it is
particularly essential that the branch of it under consideration should have
an immediate dependence on, and an intimate sympathy with, the people.
Frequent elections are unquestionably the only policy by which this dependence
and sympathy can be effectually secured. But what particular degree of
frequency may be absolutely necessary for the purpose, does not appear to be
susceptible of any precise calculation, and must depend on a variety of
circumstances with which it may be connected. Let us consult experience, the
guide that ought always to be followed whenever it can be found.
5 The scheme of representation, as a substitute for a
meeting of the citizens in person, being at most but very imperfectly known to
ancient polity, it is in more modern times only that we are to expect
instructive examples. And even here, in order to avoid a research too vague
and diffusive, it will be proper to confine ourselves to the few examples
which are best known, and which bear the greatest analogy to our particular
case. The first to which this character ought to be applied, is the House of
Commons in Great Britain. The history of this branch of the English
Constitution, anterior to the date of Magna Charta, is too obscure to yield
instruction. The very existence of it has been made a question among political
antiquaries. The earliest records of subsequent date prove that parliaments
were to SIT only every year; not that they were to be ELECTED every year. And
even these annual sessions were left so much at the discretion of the monarch,
that, under various pretexts, very long and dangerous intermissions were often
contrived by royal ambition. To remedy this grievance, it was provided by a
statute in the reign of Charles II, that the intermissions should not be
protracted beyond a period of three years. On the accession of William III,
when a revolution took place in the government, the subject was still more
seriously resumed, and it was declared to be among the fundamental rights of
the people that parliaments ought to be held FREQUENTLY. By another statute,
which passed a few years later in the same reign, the term
"frequently," which had alluded to the triennial period settled in
the time of Charles II, is reduced to a precise meaning, it being expressly
enacted that a new parliament shall be called within three years after the
termination of the former. The last change, from three to seven years, is well
known to have been introduced pretty early in the present century, under on
alarm for the Hanoverian succession. From these facts it appears that the
greatest frequency of elections which has been deemed necessary in that
kingdom, for binding the representatives to their constituents, does not
exceed a triennial return of them. And if we may argue from the degree of
liberty retained even under septennial elections, and all the other vicious
ingredients in the parliamentary constitution, we cannot doubt that a
reduction of the period from seven to three years, with the other necessary
reforms, would so far extend the influence of the people over their
representatives as to satisfy us that biennial elections, under the federal
system, cannot possibly be dangerous to the requisite dependence of the House
of Representatives on their constituents.
6 Elections in Ireland, till of late, were regulated
entirely by the discretion of the crown, and were seldom repeated, except on
the accession of a new prince, or some other contingent event. The parliament
which commenced with George II. was continued throughout his whole reign, a
period of about thirty-five years. The only dependence of the representatives
on the people consisted in the right of the latter to supply occasional
vacancies by the election of new members, and in the chance of some event
which might produce a general new election. The ability also of the Irish
parliament to maintain the rights of their constituents, so far as the
disposition might exist, was extremely shackled by the control of the crown
over the subjects of their deliberation. Of late these shackles, if I mistake
not, have been broken; and octennial parliaments have besides been
established. What effect may be produced by this partial reform, must be left
to further experience. The example of Ireland, from this view of it, can throw
but little light on the subject. As far as we can draw any conclusion from it,
it must be that if the people of that country have been able under all these
disadvantages to retain any liberty whatever, the advantage of biennial
elections would secure to them every degree of liberty, which might depend on
a due connection between their representatives and themselves.
7 Let us bring our inquiries nearer home. The example
of these States, when British colonies, claims particular attention, at the
same time that it is so well known as to require little to be said on it. The
principle of representation, in one branch of the legislature at least, was
established in all of them. But the periods of election were different. They
varied from one to seven years. Have we any reason to infer, from the spirit
and conduct of the representatives of the people, prior to the Revolution,
that biennial elections would have been dangerous to the public liberties? The
spirit which everywhere displayed itself at the commencement of the struggle,
and which vanquished the obstacles to independence, is the best of proofs that
a sufficient portion of liberty had been everywhere enjoyed to inspire both a
sense of its worth and a zeal for its proper enlargement This remark holds
good, as well with regard to the then colonies whose elections were least
frequent, as to those whose elections were most frequent Virginia was the
colony which stood first in resisting the parliamentary usurpations of Great
Britain; it was the first also in espousing, by public act, the resolution of
independence. In Virginia, nevertheless, if I have not been misinformed,
elections under the former government were septennial. This particular example
is brought into view, not as a proof of any peculiar merit, for the priority
in those instances was probably accidental; and still less of any advantage in
SEPTENNIAL elections, for when compared with a greater frequency they are
inadmissible; but merely as a proof, and I conceive it to be a very
substantial proof, that the liberties of the people can be in no danger from
BIENNIAL elections.
8 The conclusion resulting from these examples will be
not a little strengthened by recollecting three circumstances. The first is,
that the federal legislature will possess a part only of that supreme
legislative authority which is vested completely in the British Parliament;
and which, with a few exceptions, was exercised by the colonial assemblies and
the Irish legislature. It is a received and well-founded maxim, that where no
other circumstances affect the case, the greater the power is, the shorter
ought to be its duration; and, conversely, the smaller the power, the more
safely may its duration be protracted. In the second place, it has, on another
occasion, been shown that the federal legislature will not only be restrained
by its dependence on its people, as other legislative bodies are, but that it
will be, moreover, watched and controlled by the several collateral
legislatures, which other legislative bodies are not. And in the third place,
no comparison can be made between the means that will be possessed by the more
permanent branches of the federal government for seducing, if they should be
disposed to seduce, the House of Representatives from their duty to the
people, and the means of influence over the popular branch possessed by the
other branches of the government above cited. With less power, therefore, to
abuse, the federal representatives can be less tempted on one side, and will
be doubly watched on the other.
PUBLIUS
FEDERALIST No. 53
The Same Subject Continued (The House
of Representatives) For the Independent Journal.
Saturday, February 9, 1788.
MADISON
To the People of the State of New York:
I SHALL here, perhaps, be reminded of a current
observation, "that where annual elections end, tyranny begins." If
it be true, as has often been remarked, that sayings which become proverbial
are generally founded in reason, it is not less true, that when once
established, they are often applied to cases to which the reason of them does
not extend. I need not look for a proof beyond the case before us. What is the
reason on which this proverbial observation is founded? No man will subject
himself to the ridicule of pretending that any natural connection subsists
between the sun or the seasons, and the period within which human virtue can
bear the temptations of power. Happily for mankind, liberty is not, in this
respect, confined to any single point of time; but lies within extremes, which
afford sufficient latitude for all the variations which may be required by the
various situations and circumstances of civil society. The election of
magistrates might be, if it were found expedient, as in some instances it
actually has been, daily, weekly, or monthly, as well as annual; and if
circumstances may require a deviation from the rule on one side, why not also
on the other side? Turning our attention to the periods established among
ourselves, for the election of the most numerous branches of the State
legislatures, we find them by no means coinciding any more in this instance,
than in the elections of other civil magistrates. In Connecticut and Rhode
Island, the periods are half-yearly. In the other States, South Carolina
excepted, they are annual. In South Carolina they are biennial -- as is
proposed in the federal government. Here is a difference, as four to one,
between the longest and shortest periods; and yet it would be not easy to
show, that Connecticut or Rhode Island is better governed, or enjoys a greater
share of rational liberty, than South Carolina; or that either the one or the
other of these States is distinguished in these respects, and by these causes,
from the States whose elections are different from both.
2 In searching for the grounds of this doctrine, I can
discover but one, and that is wholly inapplicable to our case. The important
distinction so well understood in America, between a Constitution established
by the people and unalterable by the government, and a law established by the
government and alterable by the government, seems to have been little
understood and less observed in any other country. Wherever the supreme power
of legislation has resided, has been supposed to reside also a full power to
change the form of the government. Even in Great Britain, where the principles
of political and civil liberty have been most discussed, and where we hear
most of the rights of the Constitution, it is maintained that the authority of
the Parliament is transcendent and uncontrollable, as well with regard to the
Constitution, as the ordinary objects of legislative provision. They have
accordingly, in several instances, actually changed, by legislative acts, some
of the most fundamental articles of the government. They have in particular,
on several occasions, changed the period of election; and, on the last
occasion, not only introduced septennial in place of triennial elections, but
by the same act, continued themselves in place four years beyond the term for
which they were elected by the people. An attention to these dangerous
practices has produced a very natural alarm in the votaries of free
government, of which frequency of elections is the corner-stone; and has led
them to seek for some security to liberty, against the danger to which it is
exposed. Where no Constitution, paramount to the government, either existed or
could be obtained, no constitutional security, similar to that established in
the United States, was to be attempted. Some other security, therefore, was to
be sought for; and what better security would the case admit, than that of
selecting and appealing to some simple and familiar portion of time, as a
standard for measuring the danger of innovations, for fixing the national
sentiment, and for uniting the patriotic exertions? The most simple and
familiar portion of time, applicable to the subject was that of a year; and
hence the doctrine has been inculcated by a laudable zeal, to erect some
barrier against the gradual innovations of an unlimited government, that the
advance towards tyranny was to be calculated by the distance of departure from
the fixed point of annual elections. But what necessity can there be of
applying this expedient to a government limited, as the federal government
will be, by the authority of a paramount Constitution? Or who will pretend
that the liberties of the people of America will not be more secure under
biennial elections, unalterably fixed by such a Constitution, than those of
any other nation would be, where elections were annual, or even more frequent,
but subject to alterations by the ordinary power of the government?
3 The second question stated is, whether biennial
elections be necessary or useful. The propriety of answering this question in
the affirmative will appear from several very obvious considerations.
4 No man can be a competent legislator who does not add
to an upright intention and a sound judgment a certain degree of knowledge of
the subjects on which he is to legislate. A part of this knowledge may be
acquired by means of information which lie within the compass of men in
private as well as public stations. Another part can only be attained, or at
least thoroughly attained, by actual experience in the station which requires
the use of it. The period of service, ought, therefore, in all such cases, to
bear some proportion to the extent of practical knowledge requisite to the due
performance of the service. The period of legislative service established in
most of the States for the more numerous branch is, as we have seen, one year.
The question then may be put into this simple form: does the period of two
years bear no greater proportion to the knowledge requisite for federal
legislation than one year does to the knowledge requisite for State
legislation? The very statement of the question, in this form, suggests the
answer that ought to be given to it.
5 In a single State, the requisite knowledge relates to
the existing laws which are uniform throughout the State, and with which all
the citizens are more or less conversant; and to the general affairs of the
State, which lie within a small compass, are not very diversified, and occupy
much of the attention and conversation of every class of people. The great
theatre of the United States presents a very different scene. The laws are so
far from being uniform, that they vary in every State; whilst the public
affairs of the Union are spread throughout a very extensive region, and are
extremely diversified by the local affairs connected with them, and can with
difficulty be correctly learnt in any other place than in the central councils
to which a knowledge of them will be brought by the representatives of every
part of the empire. Yet some knowledge of the affairs, and even of the laws,
of all the States, ought to be possessed by the members from each of the
States. How can foreign trade be properly regulated by uniform laws, without
some acquaintance with the commerce, the ports, the usages, and the
regulatious of the different States? How can the trade between the different
States be duly regulated, without some knowledge of their relative situations
in these and other respects? How can taxes be judiciously imposed and
effectually collected, if they be not accommodated to the different laws and
local circumstances relating to these objects in the different States? How can
uniform regulations for the militia be duly provided, without a similar
knowledge of many internal circumstances by which the States are distinguished
from each other? These are the principal objects of federal legislation, and
suggest most forcibly the extensive information which the representatives
ought to acquire. The other interior objects will require a proportional
degree of information with regard to them.
6 It is true that all these difficulties will, by
degrees, be very much diminished. The most laborious task will be the proper
inauguration of the government and the primeval formation of a federal code.
Improvements on the first draughts will every year become both easier and
fewer. Past transactions of the government will be a ready and accurate source
of information to new members. The affairs of the Union will become more and
more objects of curiosity and conversation among the citizens at large. And
the increased intercourse among those of different States will contribute not
a little to diffuse a mutual knowledge of their affairs, as this again will
contribute to a general assimilation of their manners and laws. But with all
these abatements, the business of federal legislation must continue so far to
exceed, both in novelty and difficulty, the legislative business of a single
State, as to justify the longer period of service assigned to those who are to
transact it.
7 A branch of knowledge which belongs to the
acquirements of a federal representative, and which has not been mentioned is
that of foreign affairs. In regulating our own commerce he ought to be not
only acquainted with the treaties between the United States and other nations,
but also with the commercial policy and laws of other nations. He ought not to
be altogether ignorant of the law of nations; for that, as far as it is a
proper object of municipal legislation, is submitted to the federal
government. And although the House of Representatives is not immediately to
participate in foreign negotiations and arrangements, yet from the necessary
connection between the several branches of public affairs, those particular
branches will frequently deserve attention in the ordinary course of
legislation, and will sometimes demand particular legislative sanction and
co-operation. Some portion of this knowledge may, no doubt, be acquired in a
man's closet; but some of it also can only be derived from the public sources
of information; and all of it will be acquired to best effect by a practical
attention to the subject during the period of actual service in the
legislature.
8 There are other considerations, of less importance,
perhaps, but which are not unworthy of notice. The distance which many of the
representatives will be obliged to travel, and the arrangements rendered
necessary by that circumstance, might be much more serious objections with fit
men to this service, if limited to a single year, than if extended to two
years. No argument can be drawn on this subject, from the case of the
delegates to the existing Congress. They are elected annually, it is true; but
their re-election is considered by the legislative assemblies almost as a
matter of course. The election of the representatives by the people would not
be governed by the same principle.
9 A few of the members, as happens in all such
assemblies, will possess superior talents; will, by frequent reelections,
become members of long standing; will be thoroughly masters of the public
business, and perhaps not unwilling to avail themselves of those advantages.
The greater the proportion of new members, and the less the information of the
bulk of the members the more apt will they be to fall into the snares that may
be laid for them. This remark is no less applicable to the relation which will
subsist between the House of Representatives and the Senate.
10 It is an inconvenience mingled with the advantages of
our frequent elections even in single States, where they are large, and hold
but one legislative session in a year, that spurious elections cannot be
investigated and annulled in time for the decision to have its due effect. If
a return can be obtained, no matter by what unlawful means, the irregular
member, who takes his seat of course, is sure of holding it a sufficient time
to answer his purposes. Hence, a very pernicious encouragement is given to the
use of unlawful means, for obtaining irregular returns. Were elections for the
federal legislature to be annual, this practice might become a very serious
abuse, particularly in the more distant States. Each house is, as it
necessarily must be, the judge of the elections, qualifications, and returns
of its members; and whatever improvements may be suggested by experience, for
simplifying and accelerating the process in disputed cases, so great a portion
of a year would unavoidably elapse, before an illegitimate member could be
dispossessed of his seat, that the prospect of such an event would be little
check to unfair and illicit means of obtaining a seat.
11 All these considerations taken together warrant us in
affirming, that biennial elections will be as useful to the affairs of the
public as we have seen that they will be safe to the liberty of the people.
PUBLIUS
FEDERALIST No. 54
The Apportionment of Members Among the
States From the New York Packet.
Tuesday, February 12, 1788.
MADISON
To the People of the State of New York:
THE next view which I shall take of the House of
Representatives relates to the appointment of its members to the several
States which is to be determined by the same rule with that of direct taxes.
It is not contended that the number of people in each
State ought not to be the standard for regulating the proportion of those who
are to represent the people of each State. The establishment of the same rule
for the appointment of taxes, will probably be as little contested; though the
rule itself in this case, is by no means founded on the same principle. In the
former case, the rule is understood to refer to the personal rights of the
people, with which it has a natural and universal connection. In the latter,
it has reference to the proportion of wealth, of which it is in no case a
precise measure, and in ordinary cases a very unfit one. But notwithstanding
the imperfection of the rule as applied to the relative wealth and
contributions of the States, it is evidently the least objectionable among the
practicable rules, and had too recently obtained the general sanction of
America, not to have found a ready preference with the convention.
2 All this is admitted, it will perhaps be said; but
does it follow, from an admission of numbers for the measure of
representation, or of slaves combined with free citizens as a ratio of
taxation, that slaves ought to be included in the numerical rule of
representation? Slaves are considered as property, not as persons. They ought
therefore to be comprehended in estimates of taxation which are founded on
property, and to be excluded from representation which is regulated by a
census of persons. This is the objection, as I understand it, stated in its
full force. I shall be equally candid in stating the reasoning which may be
offered on the opposite side.
3 "We subscribe to the doctrine," might one
of our Southern brethren observe, "that representation relates more
immediately to persons, and taxation more immediately to property, and we join
in the application of this distinction to the case of our slaves. But we must
deny the fact, that slaves are considered merely as property, and in no
respect whatever as persons. The true state of the case is, that they partake
of both these qualities: being considered by our laws, in some respects, as
persons, and in other respects as property. In being compelled to labor, not
for himself, but for a master; in being vendible by one master to another
master; and in being subject at all times to be restrained in his liberty and
chastised in his body, by the capricious will of another -- the slave may
appear to be degraded from the human rank, and classed with those irrational
animals which fall under the legal denomination of property. In being
protected, on the other hand, in his life and in his limbs, against the
violence of all others, even the master of his labor and his liberty; and in
being punishable himself for all violence committed against others -- the
slave is no less evidently regarded by the law as a member of the society, not
as a part of the irrational creation; as a moral person, not as a mere article
of property. The federal Constitution, therefore, decides with great propriety
on the case of our slaves, when it views them in the mixed character of
persons and of property. This is in fact their true character. It is the
character bestowed on them by the laws under which they live; and it will not
be denied, that these are the proper criterion; because it is only under the
pretext that the laws have transformed the negroes into subjects of property,
that a place is disputed them in the computation of numbers; and it is
admitted, that if the laws were to restore the rights which have been taken
away, the negroes could no longer be refused an equal share of representation
with the other inhabitants.
4 "This question may be placed in another light.
It is agreed on all sides, that numbers are the best scale of wealth and
taxation, as they are the only proper scale of representation. Would the
convention have been impartial or consistent, if they had rejected the slaves
from the list of inhabitants, when the shares of representation were to be
calculated, and inserted them on the lists when the tariff of contributions
was to be adjusted? Could it be reasonably expected, that the Southern States
would concur in a system, which considered their slaves in some degree as men,
when burdens were to be imposed, but refused to consider them in the same
light, when advantages were to be conferred? Might not some surprise also be
expressed, that those who reproach the Southern States with the barbarous
policy of considering as property a part of their human brethren, should
themselves contend, that the government to which all the States are to be
parties, ought to consider this unfortunate race more completely in the
unnatural light of property, than the very laws of which they complain?
5 "It may be replied, perhaps, that slaves are not
included in the estimate of representatives in any of the States possessing
them. They neither vote themselves nor increase the votes of their masters.
Upon what principle, then, ought they to be taken into the federal estimate of
representation? In rejecting them altogether, the Constitution would, in this
respect, have followed the very laws which have been appealed to as the proper
guide.
6 "This objection is repelled by a single
abservation. It is a fundamental principle of the proposed Constitution, that
as the aggregate number of representatives allotted to the several States is
to be determined by a federal rule, founded on the aggregate number of
inhabitants, so the right of choosing this allotted number in each State is to
be exercised by such part of the inhabitants as the State itself may
designate. The qualifications on which the right of suffrage depend are not,
perhaps, the same in any two States. In some of the States the difference is
very material. In every State, a certain proportion of inhabitants are
deprived of this right by the constitution of the State, who will be included
in the census by which the federal Constitution apportions the
representatives. In this point of view the Southern States might retort the
complaint, by insisting that the principle laid down by the convention
required that no regard should be had to the policy of particular States
towards their own inhabitants; and consequently, that the slaves, as
inhabitants, should have been admitted into the census according to their full
number, in like manner with other inhabitants, who, by the policy of other
States, are not admitted to all the rights of citizens. A rigorous adherence,
however, to this principle, is waived by those who would be gainers by it. All
that they ask is that equal moderation be shown on the other side. Let the
case of the slaves be considered, as it is in truth, a peculiar one. Let the
compromising expedient of the Constitution be mutually adopted, which regards
them as inhabitants, but as debased by servitude below the equal level of free
inhabitants, which regards the SLAVE as divested of two fifths of the MAN.
7 "After all, may not another ground be taken on
which this article of the Constitution will admit of a still more ready
defense? We have hitherto proceeded on the idea that representation related to
persons only, and not at all to property. But is it a just idea? Government is
instituted no less for protection of the property, than of the persons, of
individuals. The one as well as the other, therefore, may be considered as
represented by those who are charged with the government. Upon this principle
it is, that in several of the States, and particularly in the State of New
York, one branch of the government is intended more especially to be the
guardian of property, and is accordingly elected by that part of the society
which is most interested in this object of government. In the federal
Constitution, this policy does not prevail. The rights of property are
committed into the same hands with the personal rights. Some attention ought,
therefore, to be paid to property in the choice of those hands.
8 "For another reason, the votes allowed in the
federal legislature to the people of each State, ought to bear some proportion
to the comparative wealth of the States. States have not, like individuals, an
influence over each other, arising from superior advantages of fortune. If the
law allows an opulent citizen but a single vote in the choice of his
representative, the respect and consequence which he derives from his
fortunate situation very frequently guide the votes of others to the objects
of his choice; and through this imperceptible channel the rights of property
are conveyed into the public representation. A State possesses no such
influence over other States. It is not probable that the richest State in the
Confederacy will ever influence the choice of a single representative in any
other State. Nor will the representatives of the larger and richer States
possess any other advantage in the federal legislature, over the
representatives of other States, than what may result from their superior
number alone. As far, therefore, as their superior wealth and weight may
justly entitle them to any advantage, it ought to be secured to them by a
superior share of representation. The new Constitution is, in this respect,
materially different from the existing Confederation, as well as from that of
the United Netherlands, and other similar confederacies. In each of the
latter, the efficacy of the federal resolutions depends on the subsequent and
voluntary resolutions of the states composing the union. Hence the states,
though possessing an equal vote in the public councils, have an unequal
influence, corresponding with the unequal importance of these subsequent and
voluntary resolutions. Under the proposed Constitution, the federal acts will
take effect without the necessary intervention of the individual States. They
will depend merely on the majority of votes in the federal legislature, and
consequently each vote, whether proceeding from a larger or smaller State, or
a State more or less wealthy or powerful, will have an equal weight and
efficacy: in the same manner as the votes individually given in a State
legislature, by the representatives of unequal counties or other districts,
have each a precise equality of value and effect; or if there be any
difference in the case, it proceeds from the difference in the personal
character of the individual representative, rather than from any regard to the
extent of the district from which he comes."
9 Such is the reasoning which an advocate for the
Southern interests might employ on this subject; and although it may appear to
be a little strained in some points, yet, on the whole, I must confess that it
fully reconciles me to the scale of representation which the convention have
established.
10 In one respect, the establishment of a common measure
for representation and taxation will have a very salutary effect. As the
accuracy of the census to be obtained by the Congress will necessarily depend,
in a considerable degree on the disposition, if not on the co-operation, of
the States, it is of great importance that the States should feel as little
bias as possible, to swell or to reduce the amount of their numbers. Were
their share of representation alone to be governed by this rule, they would
have an interest in exaggerating their inhabitants. Were the rule to decide
their share of taxation alone, a contrary temptation would prevail. By
extending the rule to both objects, the States will have opposite interests,
which will control and balance each other, and produce the requisite
impartiality.
PUBLIUS
FEDERALIST No. 55
The Total Number of the House of
Representatives For the Independent Journal.
Wednesday, February 13, 1788.
MADISON
To the People of the State of New York:
THE number of which the House of Representatives is
to consist, forms another and a very interesting point of view, under which
this branch of the federal legislature may be contemplated. Scarce any
article, indeed, in the whole Constitution seems to be rendered more worthy of
attention, by the weight of character and the apparent force of argument with
which it has been assailed. The charges exhibited against it are, first, that
so small a number of representatives will be an unsafe depositary of the
public interests; secondly, that they will not possess a proper knowledge of
the local circumstances of their numerous constituents; thirdly, that they
will be taken from that class of citizens which will sympathize least with the
feelings of the mass of the people, and be most likely to aim at a permanent
elevation of the few on the depression of the many; fourthly, that defective
as the number will be in the first instance, it will be more and more
disproportionate, by the increase of the people, and the obstacles which will
prevent a correspondent increase of the representatives.
2 In general it may be remarked on this subject, that
no political problem is less susceptible of a precise solution than that which
relates to the number most convenient for a representative legislature; nor is
there any point on which the policy of the several States is more at variance,
whether we compare their legislative assemblies directly with each other, or
consider the proportions which they respectively bear to the number of their
constituents. Passing over the difference between the smallest and largest
States, as Delaware, whose most numerous branch consists of twenty-one
representatives, and Massachusetts, where it amounts to between three and four
hundred, a very considerable difference is observable among States nearly
equal in population. The number of representatives in Pennsylvania is not more
than one fifth of that in the State last mentioned. New York, whose population
is to that of South Carolina as six to five, has little more than one third of
the number of representatives. As great a disparity prevails between the
States of Georgia and Delaware or Rhode Island. In Pennsylvania, the
representatives do not bear a greater proportion to their constituents than of
one for every four or five thousand. In Rhode Island, they bear a proportion
of at least one for every thousand. And according to the constitution of
Georgia, the proportion may be carried to one to every ten electors; and must
unavoidably far exceed the proportion in any of the other States.
3 Another general remark to be made is, that the ratio
between the representatives and the people ought not to be the same where the
latter are very numerous as where they are very few. Were the representatives
in Virginia to be regulated by the standard in Rhode Island, they would, at
this time, amount to between four and five hundred; and twenty or thirty years
hence, to a thousand. On the other hand, the ratio of Pennsylvania, if applied
to the State of Delaware, would reduce the representative assembly of the
latter to seven or eight members. Nothing can be more fallacious than to found
our political calculations on arithmetical principles. Sixty or seventy men
may be more properly trusted with a given degree of power than six or seven.
But it does not follow that six or seven hundred would be proportionably a
better depositary. And if we carry on the supposition to six or seven
thousand, the whole reasoning ought to be reversed. The truth is, that in all
cases a certain number at least seems to be necessary to secure the benefits
of free consultation and discussion, and to guard against too easy a
combination for improper purposes; as, on the other hand, the number ought at
most to be kept within a certain limit, in order to avoid the confusion and
intemperance of a multitude. In all very numerous assemblies, of whatever
character composed, passion never fails to wrest the sceptre from reason. Had
every Athenian citizen been a Socrates, every Athenian assembly would still
have been a mob.
4 It is necessary also to recollect here the
observations which were applied to the case of biennial elections. For the
same reason that the limited powers of the Congress, and the control of the
State legislatures, justify less frequent elections than the public safely
might otherwise require, the members of the Congress need be less numerous
than if they possessed the whole power of legislation, and were under no other
than the ordinary restraints of other legislative bodies.
5 With these general ideas in our mind, let us weigh
the objections which have been stated against the number of members proposed
for the House of Representatives. It is said, in the first place, that so
small a number cannot be safely trusted with so much power.
6 The number of which this branch of the legislature is
to consist, at the outset of the government, will be sixtyfive. Within three
years a census is to be taken, when the number may be augmented to one for
every thirty thousand inhabitants; and within every successive period of ten
years the census is to be renewed, and augmentations may continue to be made
under the above limitation. It will not be thought an extravagant conjecture
that the first census will, at the rate of one for every thirty thousand,
raise the number of representatives to at least one hundred. Estimating the
negroes in the proportion of three fifths, it can scarcely be doubted that the
population of the United States will by that time, if it does not already,
amount to three millions. At the expiration of twenty-five years, according to
the computed rate of increase, the number of representatives will amount to
two hundred, and of fifty years, to four hundred. This is a number which, I
presume, will put an end to all fears arising from the smallness of the body.
I take for granted here what I shall, in answering the fourth objection,
hereafter show, that the number of representatives will be augmented from time
to time in the manner provided by the Constitution. On a contrary supposition,
I should admit the objection to have very great weight indeed.
7 The true question to be decided then is, whether the
smallness of the number, as a temporary regulation, be dangerous to the public
liberty? Whether sixty-five members for a few years, and a hundred or two
hundred for a few more, be a safe depositary for a limited and well-guarded
power of legislating for the United States? I must own that I could not give a
negative answer to this question, without first obliterating every impression
which I have received with regard to the present genius of the people of
America, the spirit which actuates the State legislatures, and the principles
which are incorporated with the political character of every class of citizens
I am unable to conceive that the people of America, in their present temper,
or under any circumstances which can speedily happen, will choose, and every
second year repeat the choice of, sixty-five or a hundred men who would be
disposed to form and pursue a scheme of tyranny or treachery. I am unable to
conceive that the State legislatures, which must feel so many motives to
watch, and which possess so many means of counteracting, the federal
legislature, would fail either to detect or to defeat a conspiracy of the
latter against the liberties of their common constituents. I am equally unable
to conceive that there are at this time, or can be in any short time, in the
United States, any sixty-five or a hundred men capable of recommending
themselves to the choice of the people at large, who would either desire or
dare, within the short space of two years, to betray the solemn trust
committed to them. What change of circumstances, time, and a fuller population
of our country may produce, requires a prophetic spirit to declare, which
makes no part of my pretensions. But judging from the circumstances now before
us, and from the probable state of them within a moderate period of time, I
must pronounce that the liberties of America cannot be unsafe in the number of
hands proposed by the federal Constitution.
8 From what quarter can the danger proceed? Are we
afraid of foreign gold? If foreign gold could so easily corrupt our federal
rulers and enable them to ensnare and betray their constituents, how has it
happened that we are at this time a free and independent nation? The Congress
which conducted us through the Revolution was a less numerous body than their
successors will be; they were not chosen by, nor responsible to, their
fellowcitizens at large; though appointed from year to year, and recallable at
pleasure, they were generally continued for three years, and prior to the
ratification of the federal articles, for a still longer term. They held their
consultations always under the veil of secrecy; they had the sole transaction
of our affairs with foreign nations; through the whole course of the war they
had the fate of their country more in their hands than it is to be hoped will
ever be the case with our future representatives; and from the greatness of
the prize at stake, and the eagerness of the party which lost it, it may well
be supposed that the use of other means than force would not have been
scrupled. Yet we know by happy experience that the public trust was not
betrayed; nor has the purity of our public councils in this particular ever
suffered, even from the whispers of calumny.
9 Is the danger apprehended from the other branches of
the federal government? But where are the means to be found by the President,
or the Senate, or both? Their emoluments of office, it is to be presumed, will
not, and without a previous corruption of the House of Representatives cannot,
more than suffice for very different purposes; their private fortunes, as they
must allbe American citizens, cannot possibly be sources of danger. The only
means, then, which they can possess, will be in the dispensation of
appointments. Is it here that suspicion rests her charge? Sometimes we are
told that this fund of corruption is to be exhausted by the President in
subduing the virtue of the Senate. Now, the fidelity of the other House is to
be the victim. The improbability of such a mercenary and perfidious
combination of the several members of government, standing on as different
foundations as republican principles will well admit, and at the same time
accountable to the society over which they are placed, ought alone to quiet
this apprehension. But, fortunately, the Constitution has provided a still
further safeguard. The members of the Congress are rendered ineligible to any
civil offices that may be created, or of which the emoluments may be
increased, during the term of their election. No offices therefore can be
dealt out to the existing members but such as may become vacant by ordinary
casualties: and to suppose that these would be sufficient to purchase the
guardians of the people, selected by the people themselves, is to renounce
every rule by which events ought to be calculated, and to substitute an
indiscriminate and unbounded jealousy, with which all reasoning must be vain.
The sincere friends of liberty, who give themselves up to the extravagancies
of this passion, are not aware of the injury they do their own cause. As there
is a degree of depravity in mankind which requires a certain degree of
circumspection and distrust, so there are other qualities in human nature
which justify a certain portion of esteem and confidence. Republican
government presupposes the existence of these qualities in a higher degree
than any other form. Were the pictures which have been drawn by the political
jealousy of some among us faithful likenesses of the human character, the
inference would be, that there is not sufficient virtue among men for
self-government; and that nothing less than the chains of despotism can
restrain them from destroying and devouring one another.
PUBLIUS
FEDERALIST No. 56
The Same Subject Continued (The Total
Number of the House of Representatives) For the Independent Journal.
Saturday, February 16, 1788.
MADISON
To the People of the State of New York:
THE SECOND charge against the House of
Representatives is, that it will be too small to possess a due knowledge of
the interests of its constituents.
2 As this objection evidently proceeds from a
comparison of the proposed number of representatives with the great extent of
the United States, the number of their inhabitants, and the diversity of their
interests, without taking into view at the same time the circumstances which
will distinguish the Congress from other legislative bodies, the best answer
that can be given to it will be a brief explanation of these peculiarities.
3 It is a sound and important principle that the
representative ought to be acquainted with the interests and circumstances of
his constituents. But this principle can extend no further than to those
circumstances and interests to which the authority and care of the
representative relate. An ignorance of a variety of minute and particular
objects, which do not lie within the compass of legislation, is consistent
with every attribute necessary to a due performance of the legislative trust.
In determining the extent of information required in the exercise of a
particular authority, recourse then must be had to the objects within the
purview of that authority.
4 What are to be the objects of federal legislation?
Those which are of most importance, and which seem most to require local
knowledge, are commerce, taxation, and the militia.
5 A proper regulation of commerce requires much
information, as has been elsewhere remarked; but as far as this information
relates to the laws and local situation of each individual State, a very few
representatives would be very sufficient vehicles of it to the federal
councils.
6 Taxation will consist, in a great measure, of duties
which will be involved in the regulation of commerce. So far the preceding
remark is applicable to this object. As far as it may consist of internal
collections, a more diffusive knowledge of the circumstances of the State may
be necessary. But will not this also be possessed in sufficient degree by a
very few intelligent men, diffusively elected within the State? Divide the
largest State into ten or twelve districts, and it will be found that there
will be no peculiar local interests in either, which will not be within the
knowledge of the representative of the district. Besides this source of
information, the laws of the State, framed by representatives from every part
of it, will be almost of themselves a sufficient guide. In every State there
have been made, and must continue to be made, regulations on this subject
which will, in many cases, leave little more to be done by the federal
legislature, than to review the different laws, and reduce them in one general
act. A skillful individual in his closet with all the local codes before him,
might compile a law on some subjects of taxation for the whole union, without
any aid from oral information, and it may be expected that whenever internal
taxes may be necessary, and particularly in cases requiring uniformity
throughout the States, the more simple objects will be preferred. To be fully
sensible of the facility which will be given to this branch of federal
legislation by the assistance of the State codes, we need only suppose for a
moment that this or any other State were divided into a number of parts, each
having and exercising within itself a power of local legislation. Is it not
evident that a degree of local information and preparatory labor would be
found in the several volumes of their proceedings, which would very much
shorten the labors of the general legislature, and render a much smaller
number of members sufficient for it? The federal councils will derive great
advantage from another circumstance. The representatives of each State will
not only bring with them a considerable knowledge of its laws, and a local
knowledge of their respective districts, but will probably in all cases have
been members, and may even at the very time be members, of the State
legislature, where all the local information and interests of the State are
assembled, and from whence they may easily be conveyed by a very few hands
into the legislature of the United States.
7 [The observations made on the subject of taxation
apply with greater force to the case of the militia. For however different the
rules of discipline may be in different States, they are the same throughout
each particular State; and depend on circumstances which can differ but little
in different parts of the same State.][E1]
8 [With regard to the regulation of the militia, there
are scarcely any circumstances in reference to which local knowledge can be
said to be necessary. The general face of the country, whether mountainous or
level, most fit for the operations of infantry or cavalry, is almost the only
consideration of this nature that can occur. The art of war teaches general
principles of organization, movement, and discipline, which apply
universally.][E1]
9 The attentive reader will discern that the reasoning
here used, to prove the sufficiency of a moderate number of representatives,
does not in any respect contradict what was urged on another occasion with
regard to the extensive information which the representatives ought to
possess, and the time that might be necessary for acquiring it. This
information, so far as it may relate to local objects, is rendered necessary
and difficult, not by a difference of laws and local circumstances within a
single State, but of those among different States. Taking each State by
itself, its laws are the same, and its interests but little diversified. A few
men, therefore, will possess all the knowledge requisite for a proper
representation of them. Were the interests and affairs of each individual
State perfectly simple and uniform, a knowledge of them in one part would
involve a knowledge of them in every other, and the whole State might be
competently represented by a single member taken from any part of it. On a
comparison of the different States together, we find a great dissimilarity in
their laws, and in many other circumstances connected with the objects of
federal legislation, with all of which the federal representatives ought to
have some acquaintance. Whilst a few representatives, therefore, from each
State, may bring with them a due knowledge of their own State, every
representative will have much information to acquire concerning all the other
States. The changes of time, as was formerly remarked, on the comparative
situation of the different States, will have an assimilating effect. The
effect of time on the internal affairs of the States, taken singly, will be
just the contrary. At present some of the States are little more than a
society of husbandmen. Few of them have made much progress in those branches
of industry which give a variety and complexity to the affairs of a nation.
These, however, will in all of them be the fruits of a more advanced
population, and will require, on the part of each State, a fuller
representation. The foresight of the convention has accordingly taken care
that the progress of population may be accompanied with a proper increase of
the representative branch of the government.
10 The experience of Great Britain, which presents to
mankind so many political lessons, both of the monitory and exemplary kind,
and which has been frequently consulted in the course of these inquiries,
corroborates the result of the reflections which we have just made. The number
of inhabitants in the two kingdoms of England and Scotland cannot be stated at
less than eight millions. The representatives of these eight millions in the
House of Commons amount to five hundred and fifty-eight. Of this number, one
ninth are elected by three hundred and sixty-four persons, and one half, by
five thousand seven hundred and twenty-three persons.[1] It cannot be supposed
that the half thus elected, and who do not even reside among the people at
large, can add any thing either to the security of the people against the
government, or to the knowledge of their circumstances and interests in the
legislative councils. On the contrary, it is notorious, that they are more
frequently the representatives and instruments of the executive magistrate,
than the guardians and advocates of the popular rights. They might therefore,
with great propriety, be considered as something more than a mere deduction
from the real representatives of the nation. We will, however, consider them
in this light alone, and will not extend the deduction to a considerable
number of others, who do not reside among their constitutents, are very
faintly connected with them, and have very little particular knowledge of
their affairs. With all these concessions, two hundred and seventy-nine
persons only will be the depository of the safety, interest, and happiness of
eight millions that is to say, there will be one representative only to
maintain the rights and explain the situation of TWENTY-EIGHT THOUSAND SIX
HUNDRED AND SEVENTY constitutents, in an assembly exposed to the whole force
of executive influence, and extending its authority to every object of
legislation within a nation whose affairs are in the highest degree
diversified and complicated. Yet it is very certain, not only that a valuable
portion of freedom has been preserved under all these circumstances, but that
the defects in the British code are chargeable, in a very small proportion, on
the ignorance of the legislature concerning the circumstances of the people.
Allowing to this case the weight which is due to it, and comparing it with
that of the House of Representatives as above explained it seems to give the
fullest assurance, that a representative for every THIRTY THOUSAND INHABITANTS
will render the latter both a safe and competent guardian of the interests
which will be confided to it.
PUBLIUS
1. Burgh's "Political Disquisitions."
E1. Two versions of this paragraph appear in
different editions.
FEDERALIST No. 57
The Alleged Tendency of the New Plan
to Elevate the Few at the Expense of the Many Considered in Connection with
Representation From the New York Packet.
Tuesday, February 19, 1788.
MADISON
To the People of the State of New York:
THE THIRD charge against the House of Representatives
is, that it will be taken from that class of citizens which will have least
sympathy with the mass of the people, and be most likely to aim at an
ambitious sacrifice of the many to the aggrandizement of the few.
2 Of all the objections which have been framed against
the federal Constitution, this is perhaps the most extraordinary. Whilst the
objection itself is levelled against a pretended oligarchy, the principle of
it strikes at the very root of republican government.
3 The aim of every political constitution is, or ought
to be, first to obtain for rulers men who possess most wisdom to discern, and
most virtue to pursue, the common good of the society; and in the next place,
to take the most effectual precautions for keeping them virtuous whilst they
continue to hold their public trust. The elective mode of obtaining rulers is
the characteristic policy of republican government. The means relied on in
this form of government for preventing their degeneracy are numerous and
various. The most effectual one, is such a limitation of the term of
appointments as will maintain a proper responsibility to the people.
4 Let me now ask what circumstance there is in the
constitution of the House of Representatives that violates the principles of
republican government, or favors the elevation of the few on the ruins of the
many? Let me ask whether every circumstance is not, on the contrary, strictly
conformable to these principles, and scrupulously impartial to the rights and
pretensions of every class and description of citizens?
5 Who are to be the electors of the federal
representatives? Not the rich, more than the poor; not the learned, more than
the ignorant; not the haughty heirs of distinguished names, more than the
humble sons of obscurity and unpropitious fortune. The electors are to be the
great body of the people of the United States. They are to be the same who
exercise the right in every State of electing the corresponding branch of the
legislature of the State.
6 Who are to be the objects of popular choice? Every
citizen whose merit may recommend him to the esteem and confidence of his
country. No qualification of wealth, of birth, of religious faith, or of civil
profession is permitted to fetter the judgement or disappoint the inclination
of the people.
7 If we consider the situation of the men on whom the
free suffrages of their fellow-citizens may confer the representative trust,
we shall find it involving every security which can be devised or desired for
their fidelity to their constituents.
8 In the first place, as they will have been
distinguished by the preference of their fellow-citizens, we are to presume
that in general they will be somewhat distinguished also by those qualities
which entitle them to it, and which promise a sincere and scrupulous regard to
the nature of their engagements.
9 In the second place, they will enter into the public
service under circumstances which cannot fail to produce a temporary affection
at least to their constituents. There is in every breast a sensibility to
marks of honor, of favor, of esteem, and of confidence, which, apart from all
considerations of interest, is some pledge for grateful and benevolent
returns. Ingratitude is a common topic of declamation against human nature;
and it must be confessed that instances of it are but too frequent and
flagrant, both in public and in private life. But the universal and extreme
indignation which it inspires is itself a proof of the energy and prevalence
of the contrary sentiment.
10 In the third place, those ties which bind the
representative to his constituents are strengthened by motives of a more
selfish nature. His pride and vanity attach him to a form of government which
favors his pretensions and gives him a share in its honors and distinctions.
Whatever hopes or projects might be entertained by a few aspiring characters,
it must generally happen that a great proportion of the men deriving their
advancement from their influence with the people, would have more to hope from
a preservation of the favor, than from innovations in the government
subversive of the authority of the people.
11 All these securities, however, would be found very
insufficient without the restraint of frequent elections. Hence, in the fourth
place, the House of Representatives is so constituted as to support in the
members an habitual recollection of their dependence on the people. Before the
sentiments impressed on their minds by the mode of their elevation can be
effaced by the exercise of power, they will be compelled to anticipate the
moment when their power is to cease, when their exercise of it is to be
reviewed, and when they must descend to the level from which they were raised;
there forever to remain unless a faithful discharge of their trust shall have
established their title to a renewal of it.
12 I will add, as a fifth circumstance in the situation
of the House of Representatives, restraining them from oppressive measures,
that they can make no law which will not have its full operation on themselves
and their friends, as well as on the great mass of the society. This has
always been deemed one of the strongest bonds by which human policy can
connect the rulers and the people together. It creates between them that
communion of interests and sympathy of sentiments, of which few governments
have furnished examples; but without which every government degenerates into
tyranny. If it be asked, what is to restrain the House of Representatives from
making legal discriminations in favor of themselves and a particular class of
the society? I answer: the genius of the whole system; the nature of just and
constitutional laws; and above all, the vigilant and manly spirit which
actuates the people of America -- a spirit which nourishes freedom, and in
return is nourished by it.
13 If this spirit shall ever be so far debased as to
tolerate a law not obligatory on the legislature, as well as on the people,
the people will be prepared to tolerate any thing but liberty.
14 Such will be the relation between the House of
Representatives and their constituents. Duty, gratitude, interest, ambition
itself, are the chords by which they will be bound to fidelity and sympathy
with the great mass of the people. It is possible that these may all be
insufficient to control the caprice and wickedness of man. But are they not
all that government will admit, and that human prudence can devise? Are they
not the genuine and the characteristic means by which republican government
provides for the liberty and happiness of the people? Are they not the
identical means on which every State government in the Union relies for the
attainment of these important ends? What then are we to understand by the
objection which this paper has combated? What are we to say to the men who
profess the most flaming zeal for republican government, yet boldly impeach
the fundamental principle of it; who pretend to be champions for the right and
the capacity of the people to choose their own rulers, yet maintain that they
will prefer those only who will immediately and infallibly betray the trust
committed to them?
15 Were the objection to be read by one who had not seen
the mode prescribed by the Constitution for the choice of representatives, he
could suppose nothing less than that some unreasonable qualification of
property was annexed to the right of suffrage; or that the right of
eligibility was limited to persons of particular families or fortunes; or at
least that the mode prescribed by the State constitutions was in some respect
or other, very grossly departed from. We have seen how far such a supposition
would err, as to the two first points. Nor would it, in fact, be less
erroneous as to the last. The only difference discoverable between the two
cases is, that each representative of the United States will be elected by
five or six thousand citizens; whilst in the individual States, the election
of a representative is left to about as many hundreds. Will it be pretended
that this difference is sufficient to justify an attachment to the State
governments, and an abhorrence to the federal government? If this be the point
on which the objection turns, it deserves to be examined.
16 Is it supported by REASON? This cannot be said,
without maintaining that five or six thousand citizens are less capable of
choosing a fit representative, or more liable to be corrupted by an unfit one,
than five or six hundred. Reason, on the contrary, assures us, that as in so
great a number a fit representative would be most likely to be found, so the
choice would be less likely to be diverted from him by the intrigues of the
ambitious or the ambitious or the bribes of the rich.
17 Is the CONSEQUENCE from this doctrine admissible? If
we say that five or six hundred citizens are as many as can jointly exercise
their right of suffrage, must we not deprive the people of the immediate
choice of their public servants, in every instance where the administration of
the government does not require as many of them as will amount to one for that
number of citizens?
18 Is the doctrine warranted by FACTS? It was shown in
the last paper, that the real representation in the British House of Commons
very little exceeds the proportion of one for every thirty thousand
inhabitants. Besides a variety of powerful causes not existing here, and which
favor in that country the pretensions of rank and wealth, no person is
eligible as a representative of a county, unless he possess real estate of the
clear value of six hundred pounds sterling per year; nor of a city or borough,
unless he possess a like estate of half that annual value. To this
qualification on the part of the county representatives is added another on
the part of the county electors, which restrains the right of suffrage to
persons having a freehold estate of the annual value of more than twenty
pounds sterling, according to the present rate of money. Notwithstanding these
unfavorable circumstances, and notwithstanding some very unequal laws in the
British code, it cannot be said that the representatives of the nation have
elevated the few on the ruins of the many.
19 But we need not resort to foreign experience on this
subject. Our own is explicit and decisive. The districts in New Hampshire in
which the senators are chosen immediately by the people, are nearly as large
as will be necessary for her representatives in the Congress. Those of
Massachusetts are larger than will be necessary for that purpose; and those of
New York still more so. In the last State the members of Assembly for the
cities and counties of New York and Albany are elected by very nearly as many
voters as will be entitled to a representative in the Congress, calculating on
the number of sixty-five representatives only. It makes no difference that in
these senatorial districts and counties a number of representatives are voted
for by each elector at the same time. If the same electors at the same time
are capable of choosing four or five representatives, they cannot be incapable
of choosing one. Pennsylvania is an additional example. Some of her counties,
which elect her State representatives, are almost as large as her districts
will be by which her federal representatives will be elected. The city of
Philadelphia is supposed to contain between fifty and sixty thousand souls. It
will therefore form nearly two districts for the choice of federal
representatives. It forms, however, but one county, in which every elector
votes for each of its representatives in the State legislature. And what may
appear to be still more directly to our purpose, the whole city actually
elects a SINGLE MEMBER for the executive council. This is the case in all the
other counties of the State.
20 Are not these facts the most satisfactory proofs of
the fallacy which has been employed against the branch of the federal
government under consideration? Has it appeared on trial that the senators of
New Hampshire, Massachusetts, and New York, or the executive council of
Pennsylvania, or the members of the Assembly in the two last States, have
betrayed any peculiar disposition to sacrifice the many to the few, or are in
any respect less worthy of their places than the representatives and
magistrates appointed in other States by very small divisions of the people?
21 But there are cases of a stronger complexion than any
which I have yet quoted. One branch of the legislature of Connecticut is so
constituted that each member of it is elected by the whole State. So is the
governor of that State, of Massachusetts, and of this State, and the president
of New Hampshire. I leave every man to decide whether the result of any one of
these experiments can be said to countenance a suspicion, that a diffusive
mode of choosing representatives of the people tends to elevate traitors and
to undermine the public liberty.
PUBLIUS
FEDERALIST No. 58
Objection That The Number of Members
Will Not Be Augmented as the Progress of Population Demands Considered For the
Independent Journal
Wednesday, February 20, 1788
MADISON
To the People of the State of New York:
THE remaining charge against the House of
Representatives, which I am to examine, is grounded on a supposition that the
number of members will not be augmented from time to time, as the progress of
population may demand.
2 It has been admitted, that this objection, if well
supported, would have great weight. The following observations will show that,
like most other objections against the Constitution, it can only proceed from
a partial view of the subject, or from a jealousy which discolors and
disfigures every object which is beheld.
1. Those who urge the objection seem not to have
recollected that the federal Constitution will not suffer by a comparison with
the State constitutions, in the security provided for a gradual augmentation
of the number of representatives. The number which is to prevail in the first
instance is declared to be temporary. Its duration is limited to the short
term of three years.
3 Within every successive term of ten years a census of
inhabitants is to be repeated. The unequivocal objects of these regulations
are, first, to readjust, from time to time, the apportionment of
representatives to the number of inhabitants, under the single exception that
each State shall have one representative at least; secondly, to augment the
number of representatives at the same periods, under the sole limitation that
the whole number shall not exceed one for every thirty thousand inhabitants.
If we review the constitutions of the several States, we shall find that some
of them contain no determinate regulations on this subject, that others
correspond pretty much on this point with the federal Constitution, and that
the most effectual security in any of them is resolvable into a mere directory
provision.
2. As far as experience has taken place on this
subject, a gradual increase of representatives under the State constitutions
has at least kept pace with that of the constituents, and it appears that the
former have been as ready to concur in such measures as the latter have been
to call for them.
3. There is a peculiarity in the federal Constitution
which insures a watchful attention in a majority both of the people and of
their representatives to a constitutional augmentation of the latter. The
peculiarity lies in this, that one branch of the legislature is a
representation of citizens, the other of the States: in the former,
consequently, the larger States will have most weight; in the latter, the
advantage will be in favor of the smaller States. From this circumstance it
may with certainty be inferred that the larger States will be strenuous
advocates for increasing the number and weight of that part of the legislature
in which their influence predominates. And it so happens that four only of the
largest will have a majority of the whole votes in the House of
Representatives. Should the representatives or people, therefore, of the
smaller States oppose at any time a reasonable addition of members, a
coalition of a very few States will be sufficient to overrule the opposition;
a coalition which, notwithstanding the rivalship and local prejudices which
might prevent it on ordinary occasions, would not fail to take place, when not
merely prompted by common interest, but justified by equity and the principles
of the Constitution.
4 It may be alleged, perhaps, that the Senate would be
prompted by like motives to an adverse coalition; and as their concurrence
would be indispensable, the just and constitutional views of the other branch
might be defeated. This is the difficulty which has probably created the most
serious apprehensions in the jealous friends of a numerous representation.
Fortunately it is among the difficulties which, existing only in appearance,
vanish on a close and accurate inspection. The following reflections will, if
I mistake not, be admitted to be conclusive and satisfactory on this point.
5 Notwithstanding the equal authority which will
subsist between the two houses on all legislative subjects, except the
originating of money bills, it cannot be doubted that the House, composed of
the greater number of members, when supported by the more powerful States, and
speaking the known and determined sense of a majority of the people, will have
no small advantage in a question depending on the comparative firmness of the
two houses.
6 This advantage must be increased by the
consciousness, felt by the same side of being supported in its demands by
right, by reason, and by the Constitution; and the consciousness, on the
opposite side, of contending against the force of all these solemn
considerations.
7 It is farther to be considered, that in the gradation
between the smallest and largest States, there are several, which, though most
likely in general to arrange themselves among the former are too little
removed in extent and population from the latter, to second an opposition to
their just and legitimate pretensions. Hence it is by no means certain that a
majority of votes, even in the Senate, would be unfriendly to proper
augmentations in the number of representatives.
8 It will not be looking too far to add, that the
senators from all the new States may be gained over to the just views of the
House of Representatives, by an expedient too obvious to be overlooked. As
these States will, for a great length of time, advance in population with
peculiar rapidity, they will be interested in frequent reapportionments of the
representatives to the number of inhabitants. The large States, therefore, who
will prevail in the House of Representatives, will have nothing to do but to
make reapportionments and augmentations mutually conditions of each other; and
the senators from all the most growing States will be bound to contend for the
latter, by the interest which their States will feel in the former.
9 These considerations seem to afford ample security on
this subject, and ought alone to satisfy all the doubts and fears which have
been indulged with regard to it. Admitting, however, that they should all be
insufficient to subdue the unjust policy of the smaller States, or their
predominant influence in the councils of the Senate, a constitutional and
infallible resource still remains with the larger States, by which they will
be able at all times to accomplish their just purposes. The House of
Representatives cannot only refuse, but they alone can propose, the supplies
requisite for the support of government. They, in a word, hold the purse --
that powerful instrument by which we behold, in the history of the British
Constitution, an infant and humble representation of the people gradually
enlarging the sphere of its activity and importance, and finally reducing, as
far as it seems to have wished, all the overgrown prerogatives of the other
branches of the government. This power over the purse may, in fact, be
regarded as the most complete and effectual weapon with which any constitution
can arm the immediate representatives of the people, for obtaining a redress
of every grievance, and for carrying into effect every just and salutary
measure.
10 But will not the House of Representatives be as much
interested as the Senate in maintaining the government in its proper
functions, and will they not therefore be unwilling to stake its existence or
its reputation on the pliancy of the Senate? Or, if such a trial of firmness
between the two branches were hazarded, would not the one be as likely first
to yield as the other? These questions will create no difficulty with those
who reflect that in all cases the smaller the number, and the more permanent
and conspicuous the station, of men in power, the stronger must be the
interest which they will individually feel in whatever concerns the
government. Those who represent the dignity of their country in the eyes of
other nations, will be particularly sensible to every prospect of public
danger, or of dishonorable stagnation in public affairs. To those causes we
are to ascribe the continual triumph of the British House of Commons over the
other branches of the government, whenever the engine of a money bill has been
employed. An absolute inflexibility on the side of the latter, although it
could not have failed to involve every department of the state in the general
confusion, has neither been apprehended nor experienced. The utmost degree of
firmness that can be displayed by the federal Senate or President, will not be
more than equal to a resistance in which they will be supported by
constitutional and patriotic principles.
11 In this review of the Constitution of the House of
Representatives, I have passed over the circumstances of economy, which, in
the present state of affairs, might have had some effect in lessening the
temporary number of representatives, and a disregard of which would probably
have been as rich a theme of declamation against the Constitution as has been
shown by the smallness of the number proposed. I omit also any remarks on the
difficulty which might be found, under present circumstances, in engaging in
the federal service a large number of such characters as the people will
probably elect. One observation, however, I must be permitted to add on this
subject as claiming, in my judgment, a very serious attention. It is, that in
all legislative assemblies the greater the number composing them may be, the
fewer will be the men who will in fact direct their proceedings. In the first
place, the more numerous an assembly may be, of whatever characters composed,
the greater is known to be the ascendency of passion over reason. In the next
place, the larger the number, the greater will be the proportion of members of
limited information and of weak capacities. Now, it is precisely on characters
of this description that the eloquence and address of the few are known to act
with all their force. In the ancient republics, where the whole body of the
people assembled in person, a single orator, or an artful statesman, was
generally seen to rule with as complete a sway as if a sceptre had been placed
in his single hand. On the same principle, the more multitudinous a
representative assembly may be rendered, the more it will partake of the
infirmities incident to collective meetings of the people. Ignorance will be
the dupe of cunning, and passion the slave of sophistry and declamation. The
people can never err more than in supposing that by multiplying their
representatives beyond a certain limit, they strengthen the barrier against
the government of a few. Experience will forever admonish them that, on the
contrary, AFTER SECURING A SUFFICIENT NUMBER FOR THE PURPOSES OF SAFETY, OF
LOCAL INFORMATION, AND OF DIFFUSIVE SYMPATHY WITH THE WHOLE SOCIETY, they will
counteract their own views by every addition to their representatives. The
countenance of the government may become more democratic, but the soul that
animates it will be more oligarchic. The machine will be enlarged, but the
fewer, and often the more secret, will be the springs by which its motions are
directed.
12 As connected with the objection against the number of
representatives, may properly be here noticed, that which has been suggested
against the number made competent for legislative business. It has been said
that more than a majority ought to have been required for a quorum; and in
particular cases, if not in all, more than a majority of a quorum for a
decision. That some advantages might have resulted from such a precaution,
cannot be denied. It might have been an additional shield to some particular
interests, and another obstacle generally to hasty and partial measures. But
these considerations are outweighed by the inconveniences in the opposite
scale. In all cases where justice or the general good might require new laws
to be passed, or active measures to be pursued, the fundamental principle of
free government would be reversed. It would be no longer the majority that
would rule: the power would be transferred to the minority. Were the defensive
privilege limited to particular cases, an interested minority might take
advantage of it to screen themselves from equitable sacrifices to the general
weal, or, in particular emergencies, to extort unreasonable indulgences.
Lastly, it would facilitate and foster the baneful practice of secessions; a
practice which has shown itself even in States where a majority only is
required; a practice subversive of all the principles of order and regular
government; a practice which leads more directly to public convulsions, and
the ruin of popular governments, than any other which has yet been displayed
among us.
PUBLIUS
FEDERALIST No. 59
Concerning the Power of Congress to
Regulate the Election of Members From the New York Packet.
Friday, February 22, 1788.
HAMILTON
To the People of the State of New York:
THE natural order of the subject leads us to
consider, in this place, that provision of the Constitution which authorizes
the national legislature to regulate, in the last resort, the election of its
own members. It is in these words: "The TIMES, PLACES, and MANNER of
holding elections for senators and representatives shall be prescribed in each
State by the legislature thereof; but the Congress may, at any time, by law,
make or alter SUCH REGULATIONS, except as to the PLACES of choosing
senators."[1] This provision has not only been declaimed against by those
who condemn the Constitution in the gross, but it has been censured by those
who have objected with less latitude and greater moderation; and, in one
instance it has been thought exceptionable by a gentleman who has declared
himself the advocate of every other part of the system.
2 I am greatly mistaken, notwithstanding, if there be
any article in the whole plan more completely defensible than this. Its
propriety rests upon the evidence of this plain proposition, that EVERY
GOVERNMENT OUGHT TO CONTAIN IN ITSELF THE MEANS OF ITS OWN PRESERVATION. Every
just reasoner will, at first sight, approve an adherence to this rule, in the
work of the convention; and will disapprove every deviation from it which may
not appear to have been dictated by the necessity of incorporating into the
work some particular ingredient, with which a rigid conformity to the rule was
incompatible. Even in this case, though he may acquiesce in the necessity, yet
he will not cease to regard and to regret a departure from so fundamental a
principle, as a portion of imperfection in the system which may prove the seed
of future weakness, and perhaps anarchy.
3 It will not be alleged, that an election law could
have been framed and inserted in the Constitution, which would have been
always applicable to every probable change in the situation of the country;
and it will therefore not be denied, that a discretionary power over elections
ought to exist somewhere. It will, I presume, be as readily conceded, that
there were only three ways in which this power could have been reasonably
modified and disposed: that it must either have been lodged wholly in the
national legislature, or wholly in the State legislatures, or primarily in the
latter and ultimately in the former. The last mode has, with reason, been
preferred by the convention. They have submitted the regulation of elections
for the federal government, in the first instance, to the local
administrations; which, in ordinary cases, and when no improper views prevail,
may be both more convenient and more satisfactory; but they have reserved to
the national authority a right to interpose, whenever extraordinary
circumstances might render that interposition necessary to its safety.
4 Nothing can be more evident, than that an exclusive
power of regulating elections for the national government, in the hands of the
State legislatures, would leave the existence of the Union entirely at their
mercy. They could at any moment annihilate it, by neglecting to provide for
the choice of persons to administer its affairs. It is to little purpose to
say, that a neglect or omission of this kind would not be likely to take
place. The constitutional possibility of the thing, without an equivalent for
the risk, is an unanswerable objection. Nor has any satisfactory reason been
yet assigned for incurring that risk. The extravagant surmises of a
distempered jealousy can never be dignified with that character. If we are in
a humor to presume abuses of power, it is as fair to presume them on the part
of the State governments as on the part of the general government. And as it
is more consonant to the rules of a just theory, to trust the Union with the
care of its own existence, than to transfer that care to any other hands, if
abuses of power are to be hazarded on the one side or on the other, it is more
rational to hazard them where the power would naturally be placed, than where
it would unnaturally be placed.
5 Suppose an article had been introduced into the
Constitution, empowering the United States to regulate the elections for the
particular States, would any man have hesitated to condemn it, both as an
unwarrantable transposition of power, and as a premeditated engine for the
destruction of the State governments? The violation of principle, in this
case, would have required no comment; and, to an unbiased observer, it will
not be less apparent in the project of subjecting the existence of the
national government, in a similar respect, to the pleasure of the State
governments. An impartial view of the matter cannot fail to result in a
conviction, that each, as far as possible, ought to depend on itself for its
own preservation.
6 As an objection to this position, it may be remarked
that the constitution of the national Senate would involve, in its full
extent, the danger which it is suggested might flow from an exclusive power in
the State legislatures to regulate the federal elections. It may be alleged,
that by declining the appointment of Senators, they might at any time give a
fatal blow to the Union; and from this it may be inferred, that as its
existence would be thus rendered dependent upon them in so essential a point,
there can be no objection to intrusting them with it in the particular case
under consideration. The interest of each State, it may be added, to maintain
its representation in the national councils, would be a complete security
against an abuse of the trust.
7 This argument, though specious, will not, upon
examination, be found solid. It is certainly true that the State legislatures,
by forbearing the appointment of senators, may destroy the national
government. But it will not follow that, because they have a power to do this
in one instance, they ought to have it in every other. There are cases in
which the pernicious tendency of such a power may be far more decisive,
without any motive equally cogent with that which must have regulated the
conduct of the convention in respect to the formation of the Senate, to
recommend their admission into the system. So far as that construction may
expose the Union to the possibility of injury from the State legislatures, it
is an evil; but it is an evil which could not have been avoided without
excluding the States, in their political capacities, wholly from a place in
the organization of the national government. If this had been done, it would
doubtless have been interpreted into an entire dereliction of the federal
principle; and would certainly have deprived the State governments of that
absolute safeguard which they will enjoy under this provision. But however
wise it may have been to have submitted in this instance to an inconvenience,
for the attainment of a necessary advantage or a greater good, no inference
can be drawn from thence to favor an accumulation of the evil, where no
necessity urges, nor any greater good invites.
8 It may be easily discerned also that the national
government would run a much greater risk from a power in the State
legislatures over the elections of its House of Representatives, than from
their power of appointing the members of its Senate. The senators are to be
chosen for the period of six years; there is to be a rotation, by which the
seats of a third part of them are to be vacated and replenished every two
years; and no State is to be entitled to more than two senators; a quorum of
the body is to consist of sixteen members. The joint result of these
circumstances would be, that a temporary combination of a few States to
intermit the appointment of senators, could neither annul the existence nor
impair the activity of the body; and it is not from a general and permanent
combination of the States that we can have any thing to fear. The first might
proceed from sinister designs in the leading members of a few of the State
legislatures; the last would suppose a fixed and rooted disaffection in the
great body of the people, which will either never exist at all, or will, in
all probability, proceed from an experience of the inaptitude of the general
government to the advancement of their happiness in which event no good
citizen could desire its continuance.
9 But with regard to the federal House of
Representatives, there is intended to be a general election of members once in
two years. If the State legislatures were to be invested with an exclusive
power of regulating these elections, every period of making them would be a
delicate crisis in the national situation, which might issue in a dissolution
of the Union, if the leaders of a few of the most important States should have
entered into a previous conspiracy to prevent an election.
10 I shall not deny, that there is a degree of weight in
the observation, that the interests of each State, to be represented in the
federal councils, will be a security against the abuse of a power over its
elections in the hands of the State legislatures. But the security will not be
considered as complete, by those who attend to the force of an obvious
distinction between the interest of the people in the public felicity, and the
interest of their local rulers in the power and consequence of their offices.
The people of America may be warmly attached to the government of the Union,
at times when the particular rulers of particular States, stimulated by the
natural rivalship of power, and by the hopes of personal aggrandizement, and
supported by a strong faction in each of those States, may be in a very
opposite temper. This diversity of sentiment between a majority of the people,
and the individuals who have the greatest credit in their councils, is
exemplified in some of the States at the present moment, on the present
question. The scheme of separate confederacies, which will always nultiply the
chances of ambition, will be a never failing bait to all such influential
characters in the State administrations as are capable of preferring their own
emolument and advancement to the public weal. With so effectual a weapon in
their hands as the exclusive power of regulating elections for the national
government, a combination of a few such men, in a few of the most considerable
States, where the temptation will always be the strongest, might accomplish
the destruction of the Union, by seizing the opportunity of some casual
dissatisfaction among the people (and which perhaps they may themselves have
excited), to discontinue the choice of members for the federal House of
Representatives. It ought never to be forgotten, that a firm union of this
country, under an efficient government, will probably be an increasing object
of jealousy to more than one nation of Europe; and that enterprises to subvert
it will sometimes originate in the intrigues of foreign powers, and will
seldom fail to be patronized and abetted by some of them. Its preservation,
therefore ought in no case that can be avoided, to be committed to the
guardianship of any but those whose situation will uniformly beget an
immediate interest in the faithful and vigilant performance of the trust.
PUBLIUS
1. 1st clause, 4th section, of the 1st article.
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