THE FEDERALIST PAPERS
The Executive Department Further
Considered From the Independent Journal.
Saturday, March 15, 1788
HAMILTON
TABLE OF CONTENTS
To the People of the State of New York:
FEDERALIST No. 70
THERE is an idea, which is not without its advocates,
that a vigorous Executive is inconsistent with the genius of republican
government. The enlightened well-wishers to this species of government must at
least hope that the supposition is destitute of foundation; since they can
never admit its truth, without at the same time admitting the condemnation of
their own principles. Energy in the Executive is a leading character in the
definition of good government. It is essential to the protection of the
community against foreign attacks; it is not less essential to the steady
administration of the laws; to the protection of property against those
irregular and high-handed combinations which sometimes interrupt the ordinary
course of justice; to the security of liberty against the enterprises and
assaults of ambition, of faction, and of anarchy. Every man the least
conversant in Roman story, knows how often that republic was obliged to take
refuge in the absolute power of a single man, under the formidable title of
Dictator, as well against the intrigues of ambitious individuals who aspired
to the tyranny, and the seditions of whole classes of the community whose
conduct threatened the existence of all government, as against the invasions
of external enemies who menaced the conquest and destruction of Rome.
2 There can be no need, however, to multiply arguments
or examples on this head. A feeble Executive implies a feeble execution of the
government. A feeble execution is but another phrase for a bad execution; and
a government ill executed, whatever it may be in theory, must be, in practice,
a bad government.
3 Taking it for granted, therefore, that all men of
sense will agree in the necessity of an energetic Executive, it will only
remain to inquire, what are the ingredients which constitute this energy? How
far can they be combined with those other ingredients which constitute safety
in the republican sense? And how far does this combination characterize the
plan which has been reported by the convention?
4 The ingredients which constitute energy in the
Executive are, first, unity; secondly, duration; thirdly, an adequate
provision for its support; fourthly, competent powers.
5 The ingredients which constitute safety in the repub
lican sense are, first, a due dependence on the people, secondly, a due
responsibility.
6 Those politicians and statesmen who have been the
most celebrated for the soundness of their principles and for the justice of
their views, have declared in favor of a single Executive and a numerous
legislature. They have with great propriety, considered energy as the most
necessary qualification of the former, and have regarded this as most
applicable to power in a single hand, while they have, with equal propriety,
considered the latter as best adapted to deliberation and wisdom, and best
calculated to conciliate the confidence of the people and to secure their
privileges and interests.
7 That unity is conducive to energy will not be
disputed. Decision, activity, secrecy, and despatch will generally
characterize the proceedings of one man in a much more eminent degree than the
proceedings of any greater number; and in proportion as the number is
increased, these qualities will be diminished.
8 This unity may be destroyed in two ways: either by
vesting the power in two or more magistrates of equal dignity and authority;
or by vesting it ostensibly in one man, subject, in whole or in part, to the
control and co-operation of others, in the capacity of counsellors to him. Of
the first, the two Consuls of Rome may serve as an example; of the last, we
shall find examples in the constitutions of several of the States. New York
and New Jersey, if I recollect right, are the only States which have intrusted
the executive authority wholly to single men.[1] Both these methods of
destroying the unity of the Executive have their partisans; but the votaries
of an executive council are the most numerous. They are both liable, if not to
equal, to similar objections, and may in most lights be examined in
conjunction.
9 The experience of other nations will afford little
instruction on this head. As far, however, as it teaches any thing, it teaches
us not to be enamoured of plurality in the Executive. We have seen that the
Achaeans, on an experiment of two Praetors, were induced to abolish one. The
Roman history records many instances of mischiefs to the republic from the
dissensions between the Consuls, and between the military Tribunes, who were
at times substituted for the Consuls. But it gives us no specimens of any
peculiar advantages derived to the state from the circumstance of the
plurality of those magistrates. That the dissensions between them were not
more frequent or more fatal, is a matter of astonishment, until we advert to
the singular position in which the republic was almost continually placed, and
to the prudent policy pointed out by the circumstances of the state, and
pursued by the Consuls, of making a division of the government between them.
The patricians engaged in a perpetual struggle with the plebeians for the
preservation of their ancient authorities and dignities; the Consuls, who were
generally chosen out of the former body, were commonly united by the personal
interest they had in the defense of the privileges of their order. In addition
to this motive of union, after the arms of the republic had considerably
expanded the bounds of its empire, it became an established custom with the
Consuls to divide the administration between themselves by lot -- one of them
remaining at Rome to govern the city and its environs, the other taking the
command in the more distant provinces. This expedient must, no doubt, have had
great influence in preventing those collisions and rivalships which might
otherwise have embroiled the peace of the republic.
10 But quitting the dim light of historical research,
attaching ourselves purely to the dictates of reason and good sense, we shall
discover much greater cause to reject than to approve the idea of plurality in
the Executive, under any modification whatever.
11 Wherever two or more persons are engaged in any
common enterprise or pursuit, there is always danger of difference of opinion.
If it be a public trust or office, in which they are clothed with equal
dignity and authority, there is peculiar danger of personal emulation and even
animosity. From either, and especially from all these causes, the most bitter
dissensions are apt to spring. Whenever these happen, they lessen the
respectability, weaken the authority, and distract the plans and operation of
those whom they divide. If they should unfortunately assail the supreme
executive magistracy of a country, consisting of a plurality of persons, they
might impede or frustrate the most important measures of the government, in
the most critical emergencies of the state. And what is still worse, they
might split the community into the most violent and irreconcilable factions,
adhering differently to the different individuals who composed the magistracy.
12 Men often oppose a thing, merely because they have
had no agency in planning it, or because it may have been planned by those
whom they dislike. But if they have been consulted, and have happened to
disapprove, opposition then becomes, in their estimation, an indispensable
duty of self-love. They seem to think themselves bound in honor, and by all
the motives of personal infallibility, to defeat the success of what has been
resolved upon contrary to their sentiments. Men of upright, benevolent tempers
have too many opportunities of remarking, with horror, to what desperate
lengths this disposition is sometimes carried, and how often the great
interests of society are sacrificed to the vanity, to the conceit, and to the
obstinacy of individuals, who have credit enough to make their passions and
their caprices interesting to mankind. Perhaps the question now before the
public may, in its consequences, afford melancholy proofs of the effects of
this despicable frailty, or rather detestable vice, in the human character.
13 Upon the principles of a free government,
inconveniences from the source just mentioned must necessarily be submitted to
in the formation of the legislature; but it is unnecessary, and therefore
unwise, to introduce them into the constitution of the Executive. It is here
too that they may be most pernicious. In the legislature, promptitude of
decision is oftener an evil than a benefit. The differences of opinion, and
the jarrings of parties in that department of the government, though they may
sometimes obstruct salutary plans, yet often promote deliberation and
circumspection, and serve to check excesses in the majority. When a resolution
too is once taken, the opposition must be at an end. That resolution is a law,
and resistance to it punishable. But no favorable circumstances palliate or
atone for the disadvantages of dissension in the executive department. Here,
they are pure and unmixed. There is no point at which they cease to operate.
They serve to embarrass and weaken the execution of the plan or measure to
which they relate, from the first step to the final conclusion of it. They
constantly counteract those qualities in the Executive which are the most
necessary ingredients in its composition -- vigor and expedition, and this
without anycounterbalancing good. In the conduct of war, in which the energy
of the Executive is the bulwark of the national security, every thing would be
to be apprehended from its plurality.
14 It must be confessed that these observations apply
with principal weight to the first case supposed -- that is, to a plurality of
magistrates of equal dignity and authority a scheme, the advocates for which
are not likely to form a numerous sect; but they apply, though not with equal,
yet with considerable weight to the project of a council, whose concurrence is
made constitutionally necessary to the operations of the ostensible Executive.
An artful cabal in that council would be able to distract and to enervate the
whole system of administration. If no such cabal should exist, the mere
diversity of views and opinions would alone be sufficient to tincture the
exercise of the executive authority with a spirit of habitual feebleness and
dilatoriness.
15 [But one of the weightiest objections to a plurality
in the Executive, and which lies as much against the last as the first plan,
is, that it tends to conceal faults and destroy responsibility. Responsibility
is of two kinds -- to censure and to punishment. The first is the more
important of the two, especially in an elective office. Man, in public trust,
will much oftener act in such a manner as to render him unworthy of being any
longer trusted, than in such a manner as to make him obnoxious to legal
punishment. But the multiplication of the Executive adds to the difficulty of
detection in either case. It often becomes impossible, amidst mutual
accusations, to determine on whom the blame or the punishment of a pernicious
measure, or series of pernicious measures, ought really to fall. It is shifted
from one to another with so much dexterity, and under such plausible
appearances, that the public opinion is left in suspense about the real
author. The circumstances which may have led to any national miscarriage or
misfortune are sometimes so complicated that, where there are a number of
actors who may have had different degrees and kinds of agency, though we may
clearly see upon the whole that there has been mismanagement, yet it may be
impracticable to pronounce to whose account the evil which may have been
incurred is truly chargeable.][E1]
16 [But one of the weightiest objections to a plurality
in the Executive, and which lies as much against the last as the first plan,
is, that it tends to conceal faults and destroy responsibility.
17 Responsibility is of two kinds -- to censure and to
punishment. The first is the more important of the two, especially in an
elective office. Man, in public trust, will much oftener act in such a manner
as to render him unworthy of being any longer trusted, than in such a manner
as to make him obnoxious to legal punishment. But the multiplication of the
Executive adds to the difficulty of detection in either case. It often becomes
impossible, amidst mutual accusations, to determine on whom the blame or the
punishment of a pernicious measure, or series of pernicious measures, ought
really to fall. It is shifted from one to another with so much dexterity, and
under such plausible appearances, that the public opinion is left in suspense
about the real author. The circumstances which may have led to any national
miscarriage or misfortune are sometimes so complicated that, where there are a
number of actors who may have had different degrees and kinds of agency,
though we may clearly see upon the whole that there has been mismanagement,
yet it may be impracticable to pronounce to whose account the evil which may
have been incurred is truly chargeable.][E1]
18 "I was overruled by my council. The council were
so divided in their opinions that it was impossible to obtain any better
resolution on the point." These and similar pretexts are constantly at
hand, whether true or false. And who is there that will either take the
trouble or incur the odium, of a strict scrunity into the secret springs of
the transaction? Should there be found a citizen zealous enough to undertake
the unpromising task, if there happen to be collusion between the parties
concerned, how easy it is to clothe the circumstances with so much ambiguity,
as to render it uncertain what was the precise conduct of any of those
parties?
19 In the single instance in which the governor of this
State is coupled with a council -- that is, in the appointment to offices, we
have seen the mischiefs of it in the view now under consideration. Scandalous
appointments to important offices have been made. Some cases, indeed, have
been so flagrant that ALL PARTIES have agreed in the impropriety of the thing.
When inquiry has been made, the blame has been laid by the governor on the
members of the council, who, on their part, have charged it upon his
nomination; while the people remain altogether at a loss to determine, by
whose influence their interests have been committed to hands so unqualified
and so manifestly improper. In tenderness to individuals, I forbear to descend
to particulars.
20 It is evident from these considerations, that the
plurality of the Executive tends to deprive the people of the two greatest
securities they can have for the faithful exercise of any delegated power,
first, the restraints of public opinion, which lose their efficacy, as well on
account of the division of the censure attendant on bad measures among a
number, as on account of the uncertainty on whom it ought to fall; and,
second, the opportunity of discovering with facility and clearness the
misconduct of the persons they trust, in order either to their removal from
office or to their actual punishment in cases which admit of it.
21 In England, the king is a perpetual magistrate; and
it is a maxim which has obtained for the sake of the pub lic peace, that he is
unaccountable for his administration, and his person sacred. Nothing,
therefore, can be wiser in that kingdom, than to annex to the king a
constitutional council, who may be responsible to the nation for the advice
they give. Without this, there would be no responsibility whatever in the
executive department an idea inadmissible in a free government. But even there
the king is not bound by the resolutions of his council, though they are
answerable for the advice they give. He is the absolute master of his own
conduct in the exercise of his office, and may observe or disregard the
counsel given to him at his sole discretion.
22 But in a republic, where every magistrate ought to be
personally responsible for his behavior in office the reason which in the
British Constitution dictates the propriety of a council, not only ceases to
apply, but turns against the institution. In the monarchy of Great Britain, it
furnishes a substitute for the prohibited responsibility of the chief
magistrate, which serves in some degree as a hostage to the national justice
for his good behavior. In the American republic, it would serve to destroy, or
would greatly diminish, the intended and necessary responsibility of the Chief
Magistrate himself.
23 The idea of a council to the Executive, which has so
generally obtained in the State constitutions, has been derived from that
maxim of republican jealousy which considers power as safer in the hands of a
number of men than of a single man. If the maxim should be admitted to be
applicable to the case, I should contend that the advantage on that side would
not counterbalance the numerous disadvantages on the opposite side. But I do
not think the rule at all applicable to the executive power. I clearly concur
in opinion, in this particular, with a writer whom the celebrated Junius
pronounces to be "deep, solid, and ingenious," that "the
executive power is more easily confined when it is ONE";[2] that it is
far more safe there should be a single object for the jealousy and
watchfulness of the people; and, in a word, that all multiplication of the
Executive is rather dangerous than friendly to liberty.
24 A little consideration will satisfy us, that the
species of security sought for in the multiplication of the Executive, is
nattainable. Numbers must be so great as to render combination difficult, or
they are rather a source of danger than of security. The united credit and
influence of several individuals must be more formidable to liberty, than the
credit and influence of either of them separately. When power, therefore, is
placed in the hands of so small a number of men, as to admit of their
interests and views being easily combined in a common enterprise, by an artful
leader, it becomes more liable to abuse, and more dangerous when abused, than
if it be lodged in the hands of one man; who, from the very circumstance of
his being alone, will be more narrowly watched and more readily suspected, and
who cannot unite so great a mass of influence as when he is associated with
others. The Decemvirs of Rome, whose name denotes their number,[3] were more
to be dreaded in their usurpation than any ONE of them would have been. No
person would think of proposing an Executive much more numerous than that
body; from six to a dozen have been suggested for the number of the council.
The extreme of these numbers, is not too great for an easy combination; and
from such a combination America would have more to fear, than from the
ambition of any single individual. A council to a magistrate, who is himself
responsible for what he does, are generally nothing better than a clog upon
his good intentions, are often the instruments and accomplices of his bad and
are almost always a cloak to his faults.
25 I forbear to dwell upon the subject of expense;
though it be evident that if the council should be numerous enough to answer
the principal end aimed at by the institution, the salaries of the members,
who must be drawn from their homes to reside at the seat of government, would
form an item in the catalogue of public expenditures too serious to be
incurred for an object of equivocal utility. I will only add that, prior to
the appearance of the Constitution, I rarely met with an intelligent man from
any of the States, who did not admit, as the result of experience, that the
UNITY of the executive of this State was one of the best of the distinguishing
features of our constitution.
PUBLIUS
1. New York has no council except for the single
purpose of appointing to offices; New Jersey has a council whom the governor
may consult. But I think, from the terms of the constitution, their
resolutions do not bind him.
2. De Lolme.
3. Ten.
E1. Two versions of these paragraphs appear in
different editions.
FEDERALIST No. 71
The Duration in Office of the
Executive From the New York Packet. Tuesday, March 18, 1788.
HAMILTON
To the People of the State of New York:
DURATION in office has been mentioned as the second
requisite to the energy of the Executive authority. This has relation to two
objects: to the personal firmness of the executive magistrate, in the
employment of his constitutional powers; and to the stability of the system of
administration which may have been adopted under his auspices. With regard to
the first, it must be evident, that the longer the duration in office, the
greater will be the probability of obtaining so important an advantage. It is
a general principle of human nature, that a man will be interested in whatever
he possesses, in proportion to the firmness or precariousness of the tenure by
which he holds it; will be less attached to what he holds by a momentary or
uncertain title, than to what he enjoys by a durable or certain title; and, of
course, will be willing to risk more for the sake of the one, than for the
sake of the other. This remark is not less applicable to a political
privilege, or honor, or trust, than to any article of ordinary property. The
inference from it is, that a man acting in the capacity of chief magistrate,
under a consciousness that in a very short time he MUST lay down his office,
will be apt to feel himself too little interested in it to hazard any material
censure or perplexity, from the independent exertion of his powers, or from
encountering the ill-humors, however transient, which may happen to prevail,
either in a considerable part of the society itself, or even in a predominant
faction in the legislative body. If the case should only be, that he MIGHT lay
it down, unless continued by a new choice, and if he should be desirous of
being continued, his wishes, conspiring with his fears, would tend still more
powerfully to corrupt his integrity, or debase his fortitude. In either case,
feebleness and irresolution must be the characteristics of the station.
2 There are some who would be inclined to regard the
servile pliancy of the Executive to a prevailing current, either in the
community or in the legislature, as its best recommendation. But such men
entertain very crude notions, as well of the purposes for which government was
instituted, as of the true means by which the public happiness may be
promoted. The republican principle demands that the deliberate sense of the
community should govern the conduct of those to whom they intrust the
management of their affairs; but it does not require an unqualified
complaisance to every sudden breeze of passion, or to every transient impulse
which the people may receive from the arts of men, who flatter their
prejudices to betray their interests. It is a just observation, that the
people commonly INTEND the PUBLIC GOOD. This often applies to their very
errors. But their good sense would despise the adulator who should pretend
that they always REASON RIGHT about the MEANS of promoting it. They know from
experience that they sometimes err; and the wonder is that they so seldom err
as they do, beset, as they continually are, by the wiles of parasites and
sycophants, by the snares of the ambitious, the avaricious, the desperate, by
the artifices of men who possess their confidence more than they deserve it,
and of those who seek to possess rather than to deserve it. When occasions
present themselves, in which the interests of the people are at variance with
their inclinations, it is the duty of the persons whom they have appointed to
be the guardians of those interests, to withstand the temporary delusion, in
order to give them time and opportunity for more cool and sedate reflection.
Instances might be cited in which a conduct of this kind has saved the people
from very fatal consequences of their own mistakes, and has procured lasting
monuments of their gratitude to the men who had courage and magnanimity enough
to serve them at the peril of their displeasure.
3 But however inclined we might be to insist upon an
unbounded complaisance in the Executive to the inclinations of the people, we
can with no propriety contend for a like complaisance to the humors of the
legislature. The latter may sometimes stand in opposition to the former, and
at other times the people may be entirely neutral. In either supposition, it
is certainly desirable that the Executive should be in a situation to dare to
act his own opinion with vigor and decision.
4 The same rule which teaches the propriety of a
partition between the various branches of power, teaches us likewise that this
partition ought to be so contrived as to render the one independent of the
other. To what purpose separate the executive or the judiciary from the
legislative, if both the executive and the judiciary are so constituted as to
be at the absolute devotion of the legislative? Such a separation must be
merely nominal, and incapable of producing the ends for which it was
established. It is one thing to be subordinate to the laws, and another to be
dependent on the legislative body. The first comports with, the last violates,
the fundamental principles of good government; and, whatever may be the forms
of the Constitution, unites all power in the same hands. The tendency of the
legislative authority to absorb every other, has been fully displayed and
illustrated by examples in some preceding numbers. In governments purely
republican, this tendency is almost irresistible. The representatives of the
people, in a popular assembly, seem sometimes to fancy that they are the
people themselves, and betray strong symptoms of impatience and disgust at the
least sign of opposition from any other quarter; as if the exercise of its
rights, by either the executive or judiciary, were a breach of their privilege
and an outrage to their dignity. They often appear disposed to exert an
imperious control over the other departments; and as they commonly have the
people on their side, they always act with such momentum as to make it very
difficult for the other members of the government to maintain the balance of
the Constitution.
5 It may perhaps be asked, how the shortness of the
duration in office can affect the independence of the Executive on the
legislature, unless the one were possessed of the power of appointing or
displacing the other. One answer to this inquiry may be drawn from the
principle already remarked that is, from the slender interest a man is apt to
take in a short-lived advantage, and the little inducement it affords him to
expose himself, on account of it, to any considerable inconvenience or hazard.
Another answer, perhaps more obvious, though not more conclusive, will result
from the consideration of the influence of the legislative body over the
people; which might be employed to prevent the re-election of a man who, by an
upright resistance to any sinister project of that body, should have made
himself obnoxious to its resentment.
6 It may be asked also, whether a duration of four
years would answer the end proposed; and if it would not, whether a less
period, which would at least be recommended by greater security against
ambitious designs, would not, for that reason, be preferable to a longer
period, which was, at the same time, too short for the purpose of inspiring
the desired firmness and independence of the magistrate.
7 It cannot be affirmed, that a duration of four years,
or any other limited duration, would completely answer the end proposed; but
it would contribute towards it in a degree which would have a material
influence upon the spirit and character of the government. Between the
commencement and termination of such a period, there would always be a
considerable interval, in which the prospect of annihilation would be
sufficiently remote, not to have an improper effect upon the conduct of a man
indued with a tolerable portion of fortitude; and in which he might reasonably
promise himself, that there would be time enough before it arrived, to make
the community sensible of the propriety of the measures he might incline to
pursue. Though it be probable that, as he approached the moment when the
public were, by a new election, to signify their sense of his conduct, his
confidence, and with it his firmness, would decline; yet both the one and the
other would derive support from the opportunities which his previous
continuance in the station had afforded him, of establishing himself in the
esteem and good-will of his constituents. He might, then, hazard with safety,
in proportion to the proofs he had given of his wisdom and integrity, and to
the title he had acquired to the respect and attachment of his
fellow-citizens. As, on the one hand, a duration of four years will contribute
to the firmness of the Executive in a sufficient degree to render it a very
valuable ingredient in the composition; so, on the other, it is not enough to
justify any alarm for the public liberty. If a British House of Commons, from
the most feeble beginnings, FROM THE MERE POWER OF ASSENTING OR DISAGREEING TO
THE IMPOSITION OF A NEW TAX, have, by rapid strides, reduced the prerogatives
of the crown and the privileges of the nobility within the limits they
conceived to be compatible with the principles of a free government, while
they raised themselves to the rank and consequence of a coequal branch of the
legislature; if they have been able, in one instance, to abolish both the
royalty and the aristocracy, and to overturn all the ancient establishments,
as well in the Church as State; if they have been able, on a recent occasion,
to make the monarch tremble at the prospect of an innovation[1] attempted by
them, what would be to be feared from an elective magistrate of four years'
duration, with the confined authorities of a President of the United States?
What, but that he might be unequal to the task which the Constitution assigns
him? I shall only add, that if his duration be such as to leave a doubt of his
firmness, that doubt is inconsistent with a jealousy of his encroachments.
PUBLIUS
1. This was the case with respect to Mr. Fox's India
bill, which was carried in the House of Commons, and rejected in the House of
Lords, to the entire satisfaction, as it is said, of the people.
FEDERALIST No. 72
The Same Subject Continued, and
Re-Eligibility of the Executive Considered From the Independent Journal.
Wednesday, March 19, 1788.
HAMILTON
To the People of the State of New York:
THE administration of government, in its largest
sense, comprehends all the operations of the body politic, whether
legislative, executive, or judiciary; but in its most usual, and perhaps its
most precise signification. it is limited to executive details, and falls
peculiarly within the province of the executive department. The actual conduct
of foreign negotiations, the preparatory plans of finance, the application and
disbursement of the public moneys in conformity to the general appropriations
of the legislature, the arrangement of the army and navy, the directions of
the operations of war -- these, and other matters of a like nature, constitute
what seems to be most properly understood by the administration of government.
The persons, therefore, to whose immediate management these different matters
are committed, ought to be considered as the assistants or deputies of the
chief magistrate, and on this account, they ought to derive their offices from
his appointment, at least from his nomination, and ought to be subject to his
superintendence. This view of the subject will at once suggest to us the
intimate connection between the duration of the executive magistrate in office
and the stability of the system of administration. To reverse and undo what
has been done by a predecessor, is very often considered by a successor as the
best proof he can give of his own capacity and desert; and in addition to this
propensity, where the alteration has been the result of public choice, the
person substituted is warranted in supposing that the dismission of his
predecessor has proceeded from a dislike to his measures; and that the less he
resembles him, the more he will recommend himself to the favor of his
constituents. These considerations, and the influence of personal confidences
and attachments, would be likely to induce every new President to promote a
change of men to fill the subordinate stations; and these causes together
could not fail to occasion a disgraceful and ruinous mutability in the
administration of the government.
2 With a positive duration of considerable extent, I
connect the circumstance of re-eligibility. The first is necessary to give to
the officer himself the inclination and the resolution to act his part well,
and to the community time and leisure to observe the tendency of his measures,
and thence to form an experimental estimate of their merits. The last is
necessary to enable the people, when they see reason to approve of his
conduct, to continue him in his station, in order to prolong the utility of
his talents and virtues, and to secure to the government the advantage of
permanency in a wise system of administration.
3 Nothing appears more plausible at first sight, nor
more ill-founded upon close inspection, than a scheme which in relation to the
present point has had some respectable advocates -- I mean that of continuing
the chief magistrate in office for a certain time, and then excluding him from
it, either for a limited period or forever after. This exclusion, whether
temporary or perpetual, would have nearly the same effects, and these effects
would be for the most part rather pernicious than salutary.
4 One ill effect of the exclusion would be a diminution
of the inducements to good behavior. There are few men who would not feel much
less zeal in the discharge of a duty when they were conscious that the
advantages of the station with which it was connected must be relinquished at
a determinate period, than when they were permitted to entertain a hope of
obtaining, by meriting, a continuance of them. This position will not be
disputed so long as it is admitted that the desire of reward is one of the
strongest incentives of human conduct; or that the best security for the
fidelity of mankind is to make their interests coincide with their duty. Even
the love of fame, the ruling passion of the noblest minds, which would prompt
a man to plan and undertake extensive and arduous enterprises for the public
benefit, requiring considerable time to mature and perfect them, if he could
flatter himself with the prospect of being allowed to finish what he had
begun, would, on the contrary, deter him from the undertaking, when he foresaw
that he must quit the scene before he could accomplish the work, and must
commit that, together with his own reputation, to hands which might be unequal
or unfriendly to the task. The most to be expected from the generality of men,
in such a situation, is the negative merit of not doing harm, instead of the
positive merit of doing good.
5 Another ill effect of the exclusion would be the
temptation to sordid views, to peculation, and, in some instances, to
usurpation. An avaricious man, who might happen to fill the office, looking
forward to a time when he must at all events yield up the emoluments he
enjoyed, would feel a propensity, not easy to be resisted by such a man, to
make the best use of the opportunity he enjoyed while it lasted, and might not
scruple to have recourse to the most corrupt expedients to make the harvest as
abundant as it was transitory; though the same man, probably, with a different
prospect before him, might content himself with the regular perquisites of his
situation, and might even be unwilling to risk the consequences of an abuse of
his opportunities. His avarice might be a guard upon his avarice. Add to this
that the same man might be vain or ambitious, as well as avaricious. And if he
could expect to prolong his honors by his good conduct, he might hesitate to
sacrifice his appetite for them to his appetite for gain. But with the
prospect before him of approaching an inevitable annihilation, his avarice
would be likely to get the victory over his caution, his vanity, or his
ambition.
6 An ambitious man, too, when he found himself seated
on the summit of his country's honors, when he looked forward to the time at
which he must descend from the exalted eminence for ever, and reflected that
no exertion of merit on his part could save him from the unwelcome reverse;
such a man, in such a situation, would be much more violently tempted to
embrace a favorable conjuncture for attempting the prolongation of his power,
at every personal hazard, than if he had the probability of answering the same
end by doing his duty.
7 Would it promote the peace of the community, or the
stability of the government to have half a dozen men who had had credit enough
to be raised to the seat of the supreme magistracy, wandering among the people
like discontented ghosts, and sighing for a place which they were destined
never more to possess?
8 A third ill effect of the exclusion would be, the
depriving the community of the advantage of the experience gained by the chief
magistrate in the exercise of his office. That experience is the parent of
wisdom, is an adage the truth of which is recognized by the wisest as well as
the simplest of mankind. What more desirable or more essential than this
quality in the governors of nations? Where more desirable or more essential
than in the first magistrate of a nation? Can it be wise to put this desirable
and essential quality under the ban of the Constitution, and to declare that
the moment it is acquired, its possessor shall be compelled to abandon the
station in which it was acquired, and to which it is adapted? This,
nevertheless, is the precise import of all those regulations which exclude men
from serving their country, by the choice of their fellowcitizens, after they
have by a course of service fitted themselves for doing it with a greater
degree of utility.
9 A fourth ill effect of the exclusion would be the
banishing men from stations in which, in certain emergencies of the state,
their presence might be of the greatest moment to the public interest or
safety. There is no nation which has not, at one period or another,
experienced an absolute necessity of the services of particular men in
particular situations; perhaps it would not be too strong to say, to the
preservation of its political existence. How unwise, therefore, must be every
such self-denying ordinance as serves to prohibit a nation from making use of
its own citizens in the manner best suited to its exigencies and
circumstances! Without supposing the personal essentiality of the man, it is
evident that a change of the chief magistrate, at the breaking out of a war,
or at any similar crisis, for another, even of equal merit, would at all times
be detrimental to the community, inasmuch as it would substitute inexperience
to experience, and would tend to unhinge and set afloat the already settled
train of the administration.
10 A fifth ill effect of the exclusion would be, that it
would operate as a constitutional interdiction of stability in the
administration. By necessitating a change of men, in the first office of the
nation, it would necessitate a mutability of measures. It is not generally to
be expected, that men will vary and measures remain uniform. The contrary is
the usual course of things. And we need not be apprehensive that there will be
too much stability, while there is even the option of changing; nor need we
desire to prohibit the people from continuing their confidence where they
think it may be safely placed, and where, by constancy on their part, they may
obviate the fatal inconveniences of fluctuating councils and a variable
policy.
11 These are some of the disadvantages which would flow
from the principle of exclusion. They apply most forcibly to the scheme of a
perpetual exclusion; but when we consider that even a partial exclusion would
always render the readmission of the person a remote and precarious object,
the observations which have been made will apply nearly as fully to one case
as to the other.
12 What are the advantages promised to counterbalance
these disadvantages? They are represented to be: 1st, greater independence in
the magistrate; 2d, greater security to the people. Unless the exclusion be
perpetual, there will be no pretense to infer the first advantage. But even in
that case, may he have no object beyond his present station, to which he may
sacrifice his independence? May he have no connections, no friends, for whom
he may sacrifice it? May he not be less willing by a firm conduct, to make
personal enemies, when he acts under the impression that a time is fast
approaching, on the arrival of which he not only MAY, but MUST, be exposed to
their resentments, upon an equal, perhaps upon an inferior, footing? It is not
an easy point to determine whether his independence would be most promoted or
impaired by such an arrangement.
13 As to the second supposed advantage, there is still
greater reason to entertain doubts concerning it. If the exclusion were to be
perpetual, a man of irregular ambition, of whom alone there could be reason in
any case to entertain apprehension, would, with infinite reluctance, yield to
the necessity of taking his leave forever of a post in which his passion for
power and pre-eminence had acquired the force of habit. And if he had been
fortunate or adroit enough to conciliate the good-will of the people, he might
induce them to consider as a very odious and unjustifiable restraint upon
themselves, a provision which was calculated to debar them of the right of
giving a fresh proof of their attachment to a favorite. There may be conceived
circumstances in which this disgust of the people, seconding the thwarted
ambition of such a favorite, might occasion greater danger to liberty, than
could ever reasonably be dreaded from the possibility of a perpetuation in
office, by the voluntary suffrages of the community, exercising a
constitutional privilege.
14 There is an excess of refinement in the idea of
disabling the people to continue in office men who had entitled themselves, in
their opinion, to approbation and confidence; the advantages of which are at
best speculative and equivocal, and are overbalanced by disadvantages far more
certain and decisive.
PUBLIUS
FEDERALIST No. 73
The Provision For The Support of the
Executive, and the Veto Power From the New York Packet.
Friday, March 21, 1788.
HAMILTON
To the People of the State of New York:
THE third ingredient towards constituting the vigor
of the executive authority, is an adequate provision for its support. It is
evident that, without proper attention to this article, the separation of the
executive from the legislative department would be merely nominal and
nugatory. The legislature, with a discretionary power over the salary and
emoluments of the Chief Magistrate, could render him as obsequious to their
will as they might think proper to make him. They might, in most cases, either
reduce him by famine, or tempt him by largesses, to surrender at discretion
his judgment to their inclinations. These expressions, taken in all the
latitude of the terms, would no doubt convey more than is intended. There are
men who could neither be distressed nor won into a sacrifice of their duty;
but this stern virtue is the growth of few soils; and in the main it will be
found that a power over a man's support is a power over his will. If it were
necessary to confirm so plain a truth by facts, examples would not be wanting,
even in this country, of the intimidation or seduction of the Executive by the
terrors or allurements of the pecuniary arrangements of the legislative body.
2 It is not easy, therefore, to commend too highly the
judicious attention which has been paid to this subject in the proposed
Constitution. It is there provided that "The President of the United
States shall, at stated times, receive for his services a compensation which
shall neither be increased nor diminished during the period for which he shall
have been elected; and he shall not receive within that period any other
emolument from the United States, or any of them." It is impossible to
imagine any provision which would have been more eligible than this. The
legislature, on the appointment of a President, is once for all to declare
what shall be the compensation for his services during the time for which he
shall have been elected. This done, they will have no power to alter it,
either by increase or diminution, till a new period of service by a new
election commences. They can neither weaken his fortitude by operating on his
necessities, nor corrupt his integrity by appealing to his avarice. Neither
the Union, nor any of its members, will be at liberty to give, nor will he be
at liberty to receive, any other emolument than that which may have been
determined by the first act. He can, of course, have no pecuniary inducement
to renounce or desert the independence intended for him by the Constitution.
3 The last of the requisites to energy, which have been
enumerated, are competent powers. Let us proceed to consider those which are
proposed to be vested in the President of the United States.
4 The first thing that offers itself to our
observation, is the qualified negative of the President upon the acts or
resolutions of the two houses of the legislature; or, in other words, his
power of returning all bills with objections, to have the effect of preventing
their becoming laws, unless they should afterwards be ratified by two thirds
of each of the component members of the legislative body.
5 The propensity of the legislative department to
intrude upon the rights, and to absorb the powers, of the other departments,
has been already suggested and repeated; the insufficiency of a mere parchment
delineation of the boundaries of each, has also been remarked upon; and the
necessity of furnishing each with constitutional arms for its own defense, has
been inferred and proved. From these clear and indubitable principles results
the propriety of a negative, either absolute or qualified, in the Executive,
upon the acts of the legislative branches. Without the one or the other, the
former would be absolutely unable to defend himself against the depredations
of the latter. He might gradually be stripped of his authorities by successive
resolutions, or annihilated by a single vote. And in the one mode or the
other, the legislative and executive powers might speedily come to be blended
in the same hands. If even no propensity had ever discovered itself in the
legislative body to invade the rights of the Executive, the rules of just
reasoning and theoretic propriety would of themselves teach us, that the one
ought not to be left to the mercy of the other, but ought to possess a
constitutional and effectual power of selfdefense.
6 But the power in question has a further use. It not
only serves as a shield to the Executive, but it furnishes an additional
security against the enaction of improper laws. It establishes a salutary
check upon the legislative body, calculated to guard the community against the
effects of faction, precipitancy, or of any impulse unfriendly to the public
good, which may happen to influence a majority of that body.
7 The propriety of a negative has, upon some occasions,
been combated by an observation, that it was not to be presumed a single man
would possess more virtue and wisdom than a number of men; and that unless
this presumption should be entertained, it would be improper to give the
executive magistrate any species of control over the legislative body.
8 But this observation, when examined, will appear
rather specious than solid. The propriety of the thing does not turn upon the
supposition of superior wisdom or virtue in the Executive, but upon the
supposition that the legislature will not be infallible; that the love of
power may sometimes betray it into a disposition to encroach upon the rights
of other members of the government; that a spirit of faction may sometimes
pervert its deliberations; that impressions of the moment may sometimes hurry
it into measures which itself, on maturer reflexion, would condemn. The
primary inducement to conferring the power in question upon the Executive is,
to enable him to defend himself; the secondary one is to increase the chances
in favor of the community against the passing of bad laws, through haste,
inadvertence, or design. The oftener the measure is brought under examination,
the greater the diversity in the situations of those who are to examine it,
the less must be the danger of those errors which flow from want of due
deliberation, or of those missteps which proceed from the contagion of some
common passion or interest. It is far less probable, that culpable views of
any kind should infect all the parts of the government at the same moment and
in relation to the same object, than that they should by turns govern and
mislead every one of them.
9 It may perhaps be said that the power of preventing
bad laws includes that of preventing good ones; and may be used to the one
purpose as well as to the other. But this objection will have little weight
with those who can properly estimate the mischiefs of that inconstancy and
mutability in the laws, which form the greatest blemish in the character and
genius of our governments. They will consider every institution calculated to
restrain the excess of law-making, and to keep things in the same state in
which they happen to be at any given period, as much more likely to do good
than harm; because it is favorable to greater stability in the system of
legislation. The injury which may possibly be done by defeating a few good
laws, will be amply compensated by the advantage of preventing a number of bad
ones.
10 Nor is this all. The superior weight and influence of
the legislative body in a free government, and the hazard to the Executive in
a trial of strength with that body, afford a satisfactory security that the
negative would generally be employed with great caution; and there would
oftener be room for a charge of timidity than of rashness in the exercise of
it. A king of Great Britain, with all his train of sovereign attributes, and
with all the influence he draws from a thousand sources, would, at this day,
hesitate to put a negative upon the joint resolutions of the two houses of
Parliament. He would not fail to exert the utmost resources of that influence
to strangle a measure disagreeable to him, in its progress to the throne, to
avoid being reduced to the dilemma of permitting it to take effect, or of
risking the displeasure of the nation by an opposition to the sense of the
legislative body. Nor is it probable, that he would ultimately venture to
exert his prerogatives, but in a case of manifest propriety, or extreme
necessity. All well-informed men in that kingdom will accede to the justness
of this remark. A very considerable period has elapsed since the negative of
the crown has been exercised.
11 If a magistrate so powerful and so well fortified as
a British monarch, would have scruples about the exercise of the power under
consideration, how much greater caution may be reasonably expected in a
President of the United States, clothed for the short period of four years
with the executive authority of a government wholly and purely republican?
12 It is evident that there would be greater danger of
his not using his power when necessary, than of his using it too often, or too
much. An argument, indeed, against its expediency, has been drawn from this
very source. It has been represented, on this account, as a power odious in
appearance, useless in practice. But it will not follow, that because it might
be rarely exercised, it would never be exercised. In the case for which it is
chiefly designed, that of an immediate attack upon the constitutional rights
of the Executive, or in a case in which the public good was evidently and
palpably sacrificed, a man of tolerable firmness would avail himself of his
constitutional means of defense, and would listen to the admonitions of duty
and responsibility. In the former supposition, his fortitude would be
stimulated by his immediate interest in the power of his office; in the
latter, by the probability of the sanction of his constituents, who, though
they would naturally incline to the legislative body in a doubtful case, would
hardly suffer their partiality to delude them in a very plain case. I speak
now with an eye to a magistrate possessing only a common share of firmness.
There are men who, under any circumstances, will have the courage to do their
duty at every hazard.
13 But the convention have pursued a mean in this
business, which will both facilitate the exercise of the power vested in this
respect in the executive magistrate, and make its efficacy to depend on the
sense of a considerable part of the legislative body. Instead of an absolute
negative, it is proposed to give the Executive the qualified negative already
described. This is a power which would be much more readily exercised than the
other. A man who might be afraid to defeat a law by his single VETO, might not
scruple to return it for reconsideration; subject to being finally rejected
only in the event of more than one third of each house concurring in the
sufficiency of his objections. He would be encouraged by the reflection, that
if his opposition should prevail, it would embark in it a very respectable
proportion of the legislative body, whose influence would be united with his
in supporting the propriety of his conduct in the public opinion. A direct and
categorical negative has something in the appearance of it more harsh, and
more apt to irritate, than the mere suggestion of argumentative objections to
be approved or disapproved by those to whom they are addressed. In proportion
as it would be less apt to offend, it would be more apt to be exercised; and
for this very reason, it may in practice be found more effectual. It is to be
hoped that it will not often happen that improper views will govern so large a
proportion as two thirds of both branches of the legislature at the same time;
and this, too, in spite of the counterposing weight of the Executive. It is at
any rate far less probable that this should be the case, than that such views
should taint the resolutions and conduct of a bare majority. A power of this
nature in the Executive, will often have a silent and unperceived, though
forcible, operation. When men, engaged in unjustifiable pursuits, are aware
that obstructions may come from a quarter which they cannot control, they will
often be restrained by the bare apprehension of opposition, from doing what
they would with eagerness rush into, if no such external impediments were to
be feared.
14 This qualified negative, as has been elsewhere
remarked, is in this State vested in a council, consisting of the governor,
with the chancellor and judges of the Supreme Court, or any two of them. It
has been freely employed upon a variety of occasions, and frequently with
success. And its utility has become so apparent, that persons who, in
compiling the Constitution, were violent opposers of it, have from experience
become its declared admirers.[1]
15 I have in another place remarked, that the
convention, in the formation of this part of their plan, had departed from the
model of the constitution of this State, in favor of that of Massachusetts.
Two strong reasons may be imagined for this preference. One is that the
judges, who are to be the interpreters of the law, might receive an improper
bias, from having given a previous opinion in their revisionary capacities;
the other is that by being often associated with the Executive, they might be
induced to embark too far in the political views of that magistrate, and thus
a dangerous combination might by degrees be cemented between the executive and
judiciary departments. It is impossible to keep the judges too distinct from
every other avocation than that of expounding the laws. It is peculiarly
dangerous to place them in a situation to be either corrupted or influenced by
the Executive.
PUBLIUS
1. Mr. Abraham Yates, a warm opponent of the plan of
the convention is of this number.
FEDERALIST No. 74
The Command of the Military and Naval
Forces, and the Pardoning Power of the Executive From the New York Packet.
Tuesday, March 25, 1788.
HAMILTON
To the People of the State of New York:
THE President of the United States is to be
"commander-in-chief of the army and navy of the United States, and of the
militia of the several States when called into the actual service of the
United States." The propriety of this provision is so evident in itself,
and it is, at the same time, so consonant to the precedents of the State
constitutions in general, that little need be said to explain or enforce it.
Even those of them which have, in other respects, coupled the chief magistrate
with a council, have for the most part concentrated the military authority in
him alone. Of all the cares or concerns of government, the direction of war
most peculiarly demands those qualities which distinguish the exercise of
power by a single hand. The direction of war implies the direction of the
common strength; and the power of directing and employing the common strength,
forms a usual and essential part in the definition of the executive authority.
2 "The President may require the opinion, in
writing, of the principal officer in each of the executive departments, upon
any subject relating to the duties of their respective officers." This I
consider as a mere redundancy in the plan, as the right for which it provides
would result of itself from the office.
3 He is also to be authorized to grant "reprieves
and pardons for offenses against the United States, except in cases of
impeachment." Humanity and good policy conspire to dictate, that the
benign prerogative of pardoning should be as little as possible fettered or
embarrassed. The criminal code of every country partakes so much of necessary
severity, that without an easy access to exceptions in favor of unfortunate
guilt, justice would wear a countenance too sanguinary and cruel. As the sense
of responsibility is always strongest, in proportion as it is undivided, it
may be inferred that a single man would be most ready to attend to the force
of those motives which might plead for a mitigation of the rigor of the law,
and least apt to yield to considerations which were calculated to shelter a
fit object of its vengeance. The reflection that the fate of a fellow-creature
depended on his sole fiat, would naturally inspire scrupulousness and caution;
the dread of being accused of weakness or connivance, would beget equal
circumspection, though of a different kind. On the other hand, as men
generally derive confidence from their numbers, they might often encourage
each other in an act of obduracy, and might be less sensible to the
apprehension of suspicion or censure for an injudicious or affected clemency.
On these accounts, one man appears to be a more eligible dispenser of the
mercy of government, than a body of men.
4 The expediency of vesting the power of pardoning in
the President has, if I mistake not, been only contested in relation to the
crime of treason. This, it has been urged, ought to have depended upon the
assent of one, or both, of the branches of the legislative body. I shall not
deny that there are strong reasons to be assigned for requiring in this
particular the concurrence of that body, or of a part of it. As treason is a
crime levelled at the immediate being of the society, when the laws have once
ascertained the guilt of the offender, there seems a fitness in referring the
expediency of an act of mercy towards him to the judgment of the legislature.
And this ought the rather to be the case, as the supposition of the connivance
of the Chief Magistrate ought not to be entirely excluded. But there are also
strong objections to such a plan. It is not to be doubted, that a single man
of prudence and good sense is better fitted, in delicate conjunctures, to
balance the motives which may plead for and against the remission of the
punishment, than any numerous body whatever. It deserves particular attention,
that treason will often be connected with seditions which embrace a large
proportion of the community; as lately happened in Massachusetts. In every
such case, we might expect to see the representation of the people tainted
with the same spirit which had given birth to the offense. And when parties
were pretty equally matched, the secret sympathy of the friends and favorers
of the condemned person, availing itself of the good-nature and weakness of
others, might frequently bestow impunity where the terror of an example was
necessary. On the other hand, when the sedition had proceeded from causes
which had inflamed the resentments of the major party, they might often be
found obstinate and inexorable, when policy demanded a conduct of forbearance
and clemency. But the principal argument for reposing the power of pardoning
in this case to the Chief Magistrate is this: in seasons of insurrection or
rebellion, there are often critical moments, when a welltimed offer of pardon
to the insurgents or rebels may restore the tranquillity of the commonwealth;
and which, if suffered to pass unimproved, it may never be possible afterwards
to recall. The dilatory process of convening the legislature, or one of its
branches, for the purpose of obtaining its sanction to the measure, would
frequently be the occasion of letting slip the golden opportunity. The loss of
a week, a day, an hour, may sometimes be fatal. If it should be observed, that
a discretionary power, with a view to such contingencies, might be
occasionally conferred upon the President, it may be answered in the first
place, that it is questionable, whether, in a limited Constitution, that power
could be delegated by law; and in the second place, that it would generally be
impolitic beforehand to take any step which might hold out the prospect of
impunity. A proceeding of this kind, out of the usual course, would be likely
to be construed into an argument of timidity or of weakness, and would have a
tendency to embolden guilt.
PUBLIUS
FEDERALIST No. 75
The Treaty-Making Power of the
Executive For the Independent Journal.
Wednesday, March 26, 1788
HAMILTON
To the People of the State of New York:
THE President is to have power, "by and with the
advice and consent of the Senate, to make treaties, provided two thirds of the
senators present concur." Though this provision has been assailed, on
different grounds, with no small degree of vehemence, I scruple not to declare
my firm persuasion, that it is one of the best digested and most
unexceptionable parts of the plan. One ground of objection is the trite topic
of the intermixture of powers; some contending that the President ought alone
to possess the power of making treaties; others, that it ought to have been
exclusively deposited in the Senate. Another source of objection is derived
from the small number of persons by whom a treaty may be made. Of those who
espouse this objection, a part are of opinion that the House of
Representatives ought to have been associated in the business, while another
part seem to think that nothing more was necessary than to have substituted
two thirds of all the members of the Senate, to two thirds of the members
present. As I flatter myself the observations made in a preceding number upon
this part of the plan must have sufficed to place it, to a discerning eye, in
a very favorable light, I shall here content myself with offering only some
supplementary remarks, principally with a view to the objections which have
been just stated.
2 With regard to the intermixture of powers, I shall
rely upon the explanations already given in other places, of the true sense of
the rule upon which that objection is founded; and shall take it for granted,
as an inference from them, that the union of the Executive with the Senate, in
the article of treaties, is no infringement of that rule. I venture to add,
that the particular nature of the power of making treaties indicates a
peculiar propriety in that union. Though several writers on the subject of
government place that power in the class of executive authorities, yet this is
evidently an arbitrary disposition; for if we attend carefully to its
operation, it will be found to partake more of the legislative than of the
executive character, though it does not seem strictly to fall within the
definition of either of them. The essence of the legislative authority is to
enact laws, or, in other words, to prescribe rules for the regulation of the
society; while the execution of the laws, and the employment of the common
strength, either for this purpose or for the common defense, seem to comprise
all the functions of the executive magistrate. The power of making treaties
is, plainly, neither the one nor the other. It relates neither to the
execution of the subsisting laws, nor to the enaction of new ones; and still
less to an exertion of the common strength. Its objects are CONTRACTS with
foreign nations, which have the force of law, but derive it from the
obligations of good faith. They are not rules prescribed by the sovereign to
the subject, but agreements between sovereign and sovereign. The power in
question seems therefore to form a distinct department, and to belong,
properly, neither to the legislative nor to the executive. The qualities
elsewhere detailed as indispensable in the management of foreign negotiations,
point out the Executive as the most fit agent in those transactions; while the
vast importance of the trust, and the operation of treaties as laws, plead
strongly for the participation of the whole or a portion of the legislative
body in the office of making them.
3 However proper or safe it may be in governments where
the executive magistrate is an hereditary monarch, to commit to him the entire
power of making treaties, it would be utterly unsafe and improper to intrust
that power to an elective magistrate of four years' duration. It has been
remarked, upon another occasion, and the remark is unquestionably just, that
an hereditary monarch, though often the oppressor of his people, has
personally too much stake in the government to be in any material danger of
being corrupted by foreign powers. But a man raised from the station of a
private citizen to the rank of chief magistrate, possessed of a moderate or
slender fortune, and looking forward to a period not very remote when he may
probably be obliged to return to the station from which he was taken, might
sometimes be under temptations to sacrifice his duty to his interest, which it
would require superlative virtue to withstand. An avaricious man might be
tempted to betray the interests of the state to the acquisition of wealth. An
ambitious man might make his own aggrandizement, by the aid of a foreign
power, the price of his treachery to his constituents. The history of human
conduct does not warrant that exalted opinion of human virtue which would make
it wise in a nation to commit interests of so delicate and momentous a kind,
as those which concern its intercourse with the rest of the world, to the sole
disposal of a magistrate created and circumstanced as would be a President of
the United States.
4 To have intrusted the power of making treaties to the
Senate alone, would have been to relinquish the benefits of the constitutional
agency of the President in the conduct of foreign negotiations. It is true
that the Senate would, in that case, have the option of employing him in this
capacity, but they would also have the option of letting it alone, and pique
or cabal might induce the latter rather than the former. Besides this, the
ministerial servant of the Senate could not be expected to enjoy the
confidence and respect of foreign powers in the same degree with the
constitutional representatives of the nation, and, of course, would not be
able to act with an equal degree of weight or efficacy. While the Union would,
from this cause, lose a considerable advantage in the management of its
external concerns, the people would lose the additional security which would
result from the co-operation of the Executive. Though it would be imprudent to
confide in him solely so important a trust, yet it cannot be doubted that his
participation would materially add to the safety of the society. It must
indeed be clear to a demonstration that the joint possession of the power in
question, by the President and Senate, would afford a greater prospect of
security, than the separate possession of it by either of them. And whoever
has maturely weighed the circumstances which must concur in the appointment of
a President, will be satisfied that the office will always bid fair to be
filled by men of such characters as to render their concurrence in the
formation of treaties peculiarly desirable, as well on the score of wisdom, as
on that of integrity.
5 The remarks made in a former number, which have been
alluded to in another part of this paper, will apply with conclusive force
against the admission of the House of Representatives to a share in the
formation of treaties. The fluctuating and, taking its future increase into
the account, the multitudinous composition of that body, forbid us to expect
in it those qualities which are essential to the proper execution of such a
trust. Accurate and comprehensive knowledge of foreign politics; a steady and
systematic adherence to the same views; a nice and uniform sensibility to
national character; decision, secrecy, and despatch, are incompatible with the
genius of a body so variable and so numerous. The very complication of the
business, by introducing a necessity of the concurrence of so many different
bodies, would of itself afford a solid objection. The greater frequency of the
calls upon the House of Representatives, and the greater length of time which
it would often be necessary to keep them together when convened, to obtain
their sanction in the progressive stages of a treaty, would be a source of so
great inconvenience and expense as alone ought to condemn the project.
6 The only objection which remains to be canvassed, is
that which would substitute the proportion of two thirds of all the members
composing the senatorial body, to that of two thirds of the members present.
It has been shown, under the second head of our inquiries, that all provisions
which require more than the majority of any body to its resolutions, have a
direct tendency to embarrass the operations of the government, and an indirect
one to subject the sense of the majority to that of the minority. This
consideration seems sufficient to determine our opinion, that the convention
have gone as far in the endeavor to secure the advantage of numbers in the
formation of treaties as could have been reconciled either with the activity
of the public councils or with a reasonable regard to the major sense of the
community. If two thirds of the whole number of members had been required, it
would, in many cases, from the non-attendance of a part, amount in practice to
a necessity of unanimity. And the history of every political establishment in
which this principle has prevailed, is a history of impotence, perplexity, and
disorder. Proofs of this position might be adduced from the examples of the
Roman Tribuneship, the Polish Diet, and the States-General of the Netherlands,
did not an example at home render foreign precedents unnecessary.
7 To require a fixed proportion of the whole body would
not, in all probability, contribute to the advantages of a numerous agency,
better then merely to require a proportion of the attending members. The
former, by making a determinate number at all times requisite to a resolution,
diminishes the motives to punctual attendance. The latter, by making the
capacity of the body to depend on a proportion which may be varied by the
absence or presence of a single member, has the contrary effect. And as, by
promoting punctuality, it tends to keep the body complete, there is great
likelihood that its resolutions would generally be dictated by as great a
number in this case as in the other; while there would be much fewer occasions
of delay. It ought not to be forgotten that, under the existing Confederation,
two members may, and usually do, represent a State; whence it happens that
Congress, who now are solely invested with all the powers of the Union, rarely
consist of a greater number of persons than would compose the intended Senate.
If we add to this, that as the members vote by States, and that where there is
only a single member present from a State, his vote is lost, it will justify a
supposition that the active voices in the Senate, where the members are to
vote individually, would rarely fall short in number of the active voices in
the existing Congress. When, in addition to these considerations, we take into
view the co-operation of the President, we shall not hesitate to infer that
the people of America would have greater security against an improper use of
the power of making treaties, under the new Constitution, than they now enjoy
under the Confederation. And when we proceed still one step further, and look
forward to the probable augmentation of the Senate, by the erection of new
States, we shall not only perceive ample ground of confidence in the
sufficiency of the members to whose agency that power will be intrusted, but
we shall probably be led to conclude that a body more numerous than the Senate
would be likely to become, would be very little fit for the proper discharge
of the trust.
PUBLIU
FEDERALIST No. 76
The Appointing Power of the Executive
From the New York Packet.
Tuesday, April 1, 1788.
HAMILTON
To the People of the State of New York:
THE President is "to nominate, and, by and with
the advice and consent of the Senate, to appoint ambassadors, other public
ministers and consuls, judges of the Supreme Court, and all other officers of
the United States whose appointments are not otherwise provided for in the
Constitution. But the Congress may by law vest the appointment of such
inferior officers as they think proper, in the President alone, or in the
courts of law, or in the heads of departments. The President shall have power
to fill up all vacancies which may happen during the recess of the Senate, by
granting commissions which shall expire at the end of their next
session."
2 It has been observed in a former paper, that
"the true test of a good government is its aptitude and tendency to
produce a good administration." If the justness of this observation be
admitted, the mode of appointing the officers of the United States contained
in the foregoing clauses, must, when examined, be allowed to be entitled to
particular commendation. It is not easy to conceive a plan better calculated
than this to promote a judicious choice of men for filling the offices of the
Union; and it will not need proof, that on this point must essentially depend
the character of its administration.
3 It will be agreed on all hands, that the power of
appointment, in ordinary cases, ought to be modified in one of three ways. It
ought either to be vested in a single man, or in a select assembly of a
moderate number; or in a single man, with the concurrence of such an assembly.
The exercise of it by the people at large will be readily admitted to be
impracticable; as waiving every other consideration, it would leave them
little time to do anything else. When, therefore, mention is made in the
subsequent reasonings of an assembly or body of men, what is said must be
understood to relate to a select body or assembly, of the description already
given. The people collectively, from their number and from their dispersed
situation, cannot be regulated in their movements by that systematic spirit of
cabal and intrigue, which will be urged as the chief objections to reposing
the power in question in a body of men.
4 Those who have themselves reflected upon the subject,
or who have attended to the observations made in other parts of these papers,
in relation to the appointment of the President, will, I presume, agree to the
position, that there would always be great probability of having the place
supplied by a man of abilities, at least respectable. Premising this, I
proceed to lay it down as a rule, that one man of discernment is better fitted
to analyze and estimate the peculiar qualities adapted to particular offices,
than a body of men of equal or perhaps even of superior discernment.
5 The sole and undivided responsibility of one man will
naturally beget a livelier sense of duty and a more exact regard to
reputation. He will, on this account, feel himself under stronger obligations,
and more interested to investigate with care the qualities requisite to the
stations to be filled, and to prefer with impartiality the persons who may
have the fairest pretensions to them. He will have fewer personal attachments
to gratify, than a body of men who may each be supposed to have an equal
number; and will be so much the less liable to be misled by the sentiments of
friendship and of affection. A single well-directed man, by a single
understanding, cannot be distracted and warped by that diversity of views,
feelings, and interests, which frequently distract and warp the resolutions of
a collective body. There is nothing so apt to agitate the passions of mankind
as personal considerations whether they relate to ourselves or to others, who
are to be the objects of our choice or preference. Hence, in every exercise of
the power of appointing to offices, by an assembly of men, we must expect to
see a full display of all the private and party likings and dislikes,
partialities and antipathies, attachments and animosities, which are felt by
those who compose the assembly. The choice which may at any time happen to be
made under such circumstances, will of course be the result either of a
victory gained by one party over the other, or of a compromise between the
parties. In either case, the intrinsic merit of the candidate will be too
often out of sight. In the first, the qualifications best adapted to uniting
the suffrages of the party, will be more considered than those which fit the
person for the station. In the last, the coalition will commonly turn upon
some interested equivalent: "Give us the man we wish for this office, and
you shall have the one you wish for that." This will be the usual
condition of the bargain. And it will rarely happen that the advancement of
the public service will be the primary object either of party victories or of
party negotiations.
6 The truth of the principles here advanced seems to
have been felt by the most intelligent of those who have found fault with the
provision made, in this respect, by the convention. They contend that the
President ought solely to have been authorized to make the appointments under
the federal government. But it is easy to show, that every advantage to be
expected from such an arrangement would, in substance, be derived from the
power of nomination, which is proposed to be conferred upon him; while several
disadvantages which might attend the absolute power of appointment in the
hands of that officer would be avoided. In the act of nomination, his judgment
alone would be exercised; and as it would be his sole duty to point out the
man who, with the approbation of the Senate, should fill an office, his
responsibility would be as complete as if he were to make the final
appointment. There can, in this view, be no difference between nominating and
appointing. The same motives which would influence a proper discharge of his
duty in one case, would exist in the other. And as no man could be appointed
but on his previous nomination, every man who might be appointed would be, in
fact, his choice.
7 But might not his nomination be overruled? I grant it
might, yet this could only be to make place for another nomination by himself.
The person ultimately appointed must be the object of his preference, though
perhaps not in the first degree. It is also not very probable that his
nomination would often be overruled. The Senate could not be tempted, by the
preference they might feel to another, to reject the one proposed; because
they could not assure themselves, that the person they might wish would be
brought forward by a second or by any subsequent nomination. They could not
even be certain, that a future nomination would present a candidate in any
degree more acceptable to them; and as their dissent might cast a kind of
stigma upon the individual rejected, and might have the appearance of a
reflection upon the judgment of the chief magistrate, it is not likely that
their sanction would often be refused, where there were not special and strong
reasons for the refusal.
8 To what purpose then require the co-operation of
the Senate? I answer, that the necessity of their concurrence would have a
powerful, though, in general, a silent operation. It would be an excellent
check upon a spirit of favoritism in the President, and would tend greatly to
prevent the appointment of unfit characters from State prejudice, from family
connection, from personal attachment, or from a view to popularity. In
addition to this, it would be an efficacious source of stability in the
administration.
9 It will readily be comprehended, that a man who had
himself the sole disposition of offices, would be governed much more by his
private inclinations and interests, than when he was bound to submit the
propriety of his choice to the discussion and determination of a different and
independent body, and that body an entier branch of the legislature. The
possibility of rejection would be a strong motive to care in proposing. The
danger to his own reputation, and, in the case of an elective magistrate, to
his political existence, from betraying a spirit of favoritism, or an
unbecoming pursuit of popularity, to the observation of a body whose opinion
would have great weight in forming that of the public, could not fail to
operate as a barrier to the one and to the other. He would be both ashamed and
afraid to bring forward, for the most distinguished or lucrative stations,
candidates who had no other merit than that of coming from the same State to
which he particularly belonged, or of being in some way or other personally
allied to him, or of possessing the necessary insignificance and pliancy to
render them the obsequious instruments of his pleasure.
10 To this reasoning it has been objected that the
President, by the influence of the power of nomination, may secure the
complaisance of the Senate to his views. This supposition of universal venalty
in human nature is little less an error in political reasoning, than the
supposition of universal rectitude. The institution of delegated power
implies, that there is a portion of virtue and honor among mankind, which may
be a reasonable foundation of confidence; and experience justifies the theory.
It has been found to exist in the most corrupt periods of the most corrupt
governments. The venalty of the British House of Commons has been long a topic
of accusation against that body, in the country to which they belong as well
as in this; and it cannot be doubted that the charge is, to a considerable
extent, well founded. But it is as little to be doubted, that there is always
a large proportion of the body, which consists of independent and
public-spirited men, who have an influential weight in the councils of the
nation. Hence it is (the present reign not excepted) that the sense of that
body is often seen to control the inclinations of the monarch, both with
regard to men and to measures. Though it might therefore be allowable to
suppose that the Executive might occasionally influence some individuals in
the Senate, yet the supposition, that he could in general purchase the
integrity of the whole body, would be forced and improbable. A man disposed to
view human nature as it is, without either flattering its virtues or
exaggerating its vices, will see sufficient ground of confidence in the
probity of the Senate, to rest satisfied, not only that it will be
impracticable to the Executive to corrupt or seduce a majority of its members,
but that the necessity of its co-operation, in the business of appointments,
will be a considerable and salutary restraint upon the conduct of that
magistrate. Nor is the integrity of the Senate the only reliance. The
Constitution has provided some important guards against the danger of
executive influence upon the legislative body: it declares that "No
senator or representative shall during the time for which he was elected, be
appointed to any civil office under the United States, which shall have been
created, or the emoluments whereof shall have been increased, during such
time; and no person, holding any office under the United States, shall be a
member of either house during his continuance in office."
PUBLIUS
FEDERALIST No. 77
The Appointing Power Continued and
Other Powers of the Executive Considered From the Independent Journal.
Wednesday, April 2, 1788.
HAMILTON
To the People of the State of New York:
IT HAS been mentioned as one of the advantages to be
expected from the co-operation of the Senate, in the business of appointments,
that it would contribute to the stability of the administration. The consent
of that body would be necessary to displace as well as to appoint. A change of
the Chief Magistrate, therefore, would not occasion so violent or so general a
revolution in the officers of the government as might be expected, if he were
the sole disposer of offices. Where a man in any station had given
satisfactory evidence of his fitness for it, a new President would be
restrained from attempting a change in favor of a person more agreeable to
him, by the apprehension that a discountenance of the Senate might frustrate
the attempt, and bring some degree of discredit upon himself. Those who can
best estimate the value of a steady administration, will be most disposed to
prize a provision which connects the official existence of public men with the
approbation or disapprobation of that body which, from the greater permanency
of its own composition, will in all probability be less subject to inconstancy
than any other member of the government.
2 To this union of the Senate with the President, in
the article of appointments, it has in some cases been suggested that it would
serve to give the President an undue influence over the Senate, and in others
that it would have an opposite tendency -- a strong proof that neither
suggestion is true.
3 To state the first in its proper form, is to refute
it. It amounts to this: the President would have an improper influence over
the Senate, because the Senate would have the power of restraining him. This
is an absurdity in terms. It cannot admit of a doubt that the entire power of
appointment would enable him much more effectually to establish a dangerous
empire over that body, than a mere power of nomination subject to their
control.
4 Let us take a view of the converse of the
proposition: "the Senate would influence the Executive." As I have
had occasion to remark in several other instances, the indistinctness of the
objection forbids a precise answer. In what manner is this influence to be
exerted? In relation to what objects? The power of influencing a person, in
the sense in which it is here used, must imply a power of conferring a benefit
upon him. How could the Senate confer a benefit upon the President by the
manner of employing their right of negative upon his nominations? If it be
said they might sometimes gratify him by an acquiescence in a favorite choice,
when public motives might dictate a different conduct, I answer, that the
instances in which the President could be personally interested in the result,
would be too few to admit of his being materially affected by the compliances
of the Senate. The POWER which can originate the disposition of honors and
emoluments, is more likely to attract than to be attracted by the POWER which
can merely obstruct their course. If by influencing the President be meant
restraining him, this is precisely what must have been intended. And it has
been shown that the restraint would be salutary, at the same time that it
would not be such as to destroy a single advantage to be looked for from the
uncontrolled agency of that Magistrate. The right of nomination would produce
all the [good, without the ill.][E1] [good of that of appointment, and would
in a great measure avoid its evils.][E1]
5 Upon a comparison of the plan for the appointment of
the officers of the proposed government with that which is established by the
constitution of this State, a decided preference must be given to the former.
In that plan the power of nomination is unequivocally vested in the Executive.
And as there would be a necessity for submitting each nomination to the
judgment of an entire branch of the legislature, the circumstances attending
an appointment, from the mode of conducting it, would naturally become matters
of notoriety; and the public would be at no loss to determine what part had
been performed by the different actors. The blame of a bad nomination would
fall upon the President singly and absolutely. The censure of rejecting a good
one would lie entirely at the door of the Senate; aggravated by the
consideration of their having counteracted the good intentions of the
Executive. If an ill appointment should be made, the Executive for nominating,
and the Senate for approving, would participate, though in different degrees,
in the opprobrium and disgrace.
6 The reverse of all this characterizes the manner of
appointment in this State. The council of appointment consists of from three
to five persons, of whom the governor is always one. This small body, shut up
in a private apartment, impenetrable to the public eye, proceed to the
execution of the trust committed to them. It is known that the governor claims
the right of nomination, upon the strength of some ambiguous expressions in
the constitution; but it is not known to what extent, or in what manner he
exercises it; nor upon what occasions he is contradicted or opposed. The
censure of a bad appointment, on account of the uncertainty of its author, and
for want of a determinate object, has neither poignancy nor duration. And
while an unbounded field for cabal and intrigue lies open, all idea of
responsibility is lost. The most that the public can know, is that the
governor claims the right of nomination; that two out of the inconsiderable
number of four men can too often be managed without much difficulty; that if
some of the members of a particular council should happen to be of an
uncomplying character, it is frequently not impossible to get rid of their
opposition by regulating the times of meeting in such a manner as to render
their attendance inconvenient; and that from whatever cause it may proceed, a
great number of very improper appointments are from time to time made. Whether
a governor of this State avails himself of the ascendant he must necessarily
have, in this delicate and important part of the administration, to prefer to
offices men who are best qualified for them, or whether he prostitutes that
advantage to the advancement of persons whose chief merit is their implicit
devotion to his will, and to the support of a despicable and dangerous system
of personal influence, are questions which, unfortunately for the community,
can only be the subjects of speculation and conjecture.
7 Every mere council of appointment, however
constituted, will be a conclave, in which cabal and intrigue will have their
full scope. Their number, without an unwarrantable increase of expense, cannot
be large enough to preclude a facility of combination. And as each member will
have his friends and connections to provide for, the desire of mutual
gratification will beget a scandalous bartering of votes and bargaining for
places. The private attachments of one man might easily be satisfied; but to
satisfy the private attachments of a dozen, or of twenty men, would occasion a
monopoly of all the principal employments of the government in a few families,
and would lead more directly to an aristocracy or an oligarchy than any
measure that could be contrived. If, to avoid an accumulation of offices,
there was to be a frequent change in the persons who were to compose the
council, this would involve the mischiefs of a mutable administration in their
full extent. Such a council would also be more liable to executive influence
than the Senate, because they would be fewer in number, and would act less
immediately under the public inspection. Such a council, in fine, as a
substitute for the plan of the convention, would be productive of an increase
of expense, a multiplication of the evils which spring from favoritism and
intrigue in the distribution of public honors, a decrease of stability in the
administration of the government, and a diminution of the security against an
undue influence of the Executive. And yet such a council has been warmly
contended for as an essential amendment in the proposed Constitution.
8 It could not with propriety conclude my observations
on the subject of appointments without taking notice of a scheme for which
there have appeared some, though but few advocates; I mean that of uniting the
House of Representatives in the power of making them. I shall, however, do
little more than mention it, as I cannot imagine that it is likely to gain the
countenance of any considerable part of the community. A body so fluctuating
and at the same time so numerous, can never be deemed proper for the exercise
of that power. Its unfitness will appear manifest to all, when it is
recollected that in half a century it may consist of three or four hundred
persons. All the advantages of the stability, both of the Executive and of the
Senate, would be defeated by this union, and infinite delays and
embarrassments would be occasioned. The example of most of the States in their
local constitutions encourages us to reprobate the idea.
9 The only remaining powers of the Executive are
comprehended in giving information to Congress of the state of the Union; in
recommending to their consideration such measures as he shall judge expedient;
in convening them, or either branch, upon extraordinary occasions; in
adjourning them when they cannot themselves agree upon the time of
adjournment; in receiving ambassadors and other public ministers; in
faithfully executing the laws; and in commissioning all the officers of the
United States.
10 Except some cavils about the power of convening
either house of the legislature, and that of receiving ambassadors, no
objection has been made to this class of authorities; nor could they possibly
admit of any. It required, indeed, an insatiable avidity for censure to invent
exceptions to the parts which have been excepted to. In regard to the power of
convening either house of the legislature, I shall barely remark, that in
respect to the Senate at least, we can readily discover a good reason for it.
AS this body has a concurrent power with the Executive in the article of
treaties, it might often be necessary to call it together with a view to this
object, when it would be unnecessary and improper to convene the House of
Representatives. As to the reception of ambassadors, what I have said in a
former paper will furnish a sufficient answer.
11 We have now completed a survey of the structure and
powers of the executive department, which, I have endeavored to show,
combines, as far as republican principles will admit, all the requisites to
energy. The remaining inquiry is: Does it also combine the requisites to
safety, in a republican sense -- a due dependence on the people, a due
responsibility? The answer to this question has been anticipated in the
investigation of its other characteristics, and is satisfactorily deducible
from these circumstances; from the election of the President once in four
years by persons immediately chosen by the people for that purpose; and from
his being at all times liable to impeachment, trial, dismission from office,
incapacity to serve in any other, and to forfeiture of life and estate by
subsequent prosecution in the common course of law. But these precautions,
great as they are, are not the only ones which the plan of the convention has
provided in favor of the public security. In the only instances in which the
abuse of the executive authority was materially to be feared, the Chief
Magistrate of the United States would, by that plan, be subjected to the
control of a branch of the legislative body. What more could be desired by an
enlightened and reasonable people?
PUBLIUS
E1. These two alternate endings of this sentence
appear in different editions.
FEDERALIST No. 78
The Judiciary Department From McLEAN'S
Edition, New York.
Wednesday, May 28, 1788
HAMILTON
To the People of the State of New York:
WE PROCEED now to an examination of the judiciary
department of the proposed government.
In unfolding the defects of the existing
Confederation, the utility and necessity of a federal judicature have been
clearly pointed out. It is the less necessary to recapitulate the
considerations there urged, as the propriety of the institution in the
abstract is not disputed; the only questions which have been raised being
relative to the manner of constituting it, and to its extent. To these points,
therefore, our observations shall be confined.
2 The manner of constituting it seems to embrace these
several objects: 1st. The mode of appointing the judges. 2d. The tenure by
which they are to hold their places. 3d. The partition of the judiciary
authority between different courts, and their relations to each other.
3 First. As to the mode of appointing the judges; this
is the same with that of appointing the officers of the Union in general, and
has been so fully discussed in the two last numbers, that nothing can be said
here which would not be useless repetition.
4 Second. As to the tenure by which the judges are to
hold their places; this chiefly concerns their duration in office; the
provisions for their support; the precautions for their responsibility.
5 According to the plan of the convention, all judges
who may be appointed by the United States are to hold their offices during
good behavior; which is conformable to the most approved of the State
constitutions and among the rest, to that of this State. Its propriety having
been drawn into question by the adversaries of that plan, is no light symptom
of the rage for objection, which disorders their imaginations and judgments.
The standard of good behavior for the continuance in office of the judicial
magistracy, is certainly one of the most valuable of the modern improvements
in the practice of government. In a monarchy it is an excellent barrier to the
despotism of the prince; in a republic it is a no less excellent barrier to
the encroachments and oppressions of the representative body. And it is the
best expedient which can be devised in any government, to secure a steady,
upright, and impartial administration of the laws.
6 Whoever attentively considers the different
departments of power must perceive, that, in a government in which they are
separated from each other, the judiciary, from the nature of its functions,
will always be the least dangerous to the political rights of the
Constitution; because it will be least in a capacity to annoy or injure them.
The Executive not only dispenses the honors, but holds the sword of the
community. The legislature not only commands the purse, but prescribes the
rules by which the duties and rights of every citizen are to be regulated. The
judiciary, on the contrary, has no influence over either the sword or the
purse; no direction either of the strength or of the wealth of the society;
and can take no active resolution whatever. It may truly be said to have
neither FORCE nor WILL, but merely judgment; and must ultimately depend upon
the aid of the executive arm even for the efficacy of its judgments.
7 This simple view of the matter suggests several
important consequences. It proves incontestably, that the judiciary is beyond
comparison the weakest of the three departments of power[1]; that it can never
attack with success either of the other two; and that all possible care is
requisite to enable it to defend itself against their attacks. It equally
proves, that though individual oppression may now and then proceed from the
courts of justice, the general liberty of the people can never be endangered
from that quarter; I mean so long as the judiciary remains truly distinct from
both the legislature and the Executive. For I agree, that "there is no
liberty, if the power of judging be not separated from the legislative and
executive powers."[2] And it proves, in the last place, that as liberty
can have nothing to fear from the judiciary alone, but would have every thing
to fear from its union with either of the other departments; that as all the
effects of such a union must ensue from a dependence of the former on the
latter, notwithstanding a nominal and apparent separation; that as, from the
natural feebleness of the judiciary, it is in continual jeopardy of being
overpowered, awed, or influenced by its co-ordinate branches; and that as
nothing can contribute so much to its firmness and independence as permanency
in office, this quality may therefore be justly regarded as an indispensable
ingredient in its constitution, and, in a great measure, as the citadel of the
public justice and the public security.
8 The complete independence of the courts of justice is
peculiarly essential in a limited Constitution. By a limited Constitution, I
understand one which contains certain specified exceptions to the legislative
authority; such, for instance, as that it shall pass no bills of attainder, no
ex post facto laws, and the like. Limitations of this kind can be preserved in
practice no other way than through the medium of courts of justice, whose duty
it must be to declare all acts contrary to the manifest tenor of the
Constitution void. Without this, all the reservations of particular rights or
privileges would amount to nothing.
9 Some perplexity respecting the rights of the courts
to pronounce legislative acts void, because contrary to the Constitution, has
arisen from an imagination that the doctrine would imply a superiority of the
judiciary to the legislative power. It is urged that the authority which can
declare the acts of another void, must necessarily be superior to the one
whose acts may be declared void. As this doctrine is of great importance in
all the American constitutions, a brief discussion of the ground on which it
rests cannot be unacceptable.
10 There is no position which depends on clearer
principles, than that every act of a delegated authority, contrary to the
tenor of the commission under which it is exercised, is void. No legislative
act, therefore, contrary to the Constitution, can be valid. To deny this,
would be to affirm, that the deputy is greater than his principal; that the
servant is above his master; that the representatives of the people are
superior to the people themselves; that men acting by virtue of powers, may do
not only what their powers do not authorize, but what they forbid.
11 If it be said that the legislative body are
themselves the constitutional judges of their own powers, and that the
construction they put upon them is conclusive upon the other departments, it
may be answered, that this cannot be the natural presumption, where it is not
to be collected from any particular provisions in the Constitution. It is not
otherwise to be supposed, that the Constitution could intend to enable the
representatives of the people to substitute their will to that of their
constituents. It is far more rational to suppose, that the courts were
designed to be an intermediate body between the people and the legislature, in
order, among other things, to keep the latter within the limits assigned to
their authority. The interpretation of the laws is the proper and peculiar
province of the courts. A constitution is, in fact, and must be regarded by
the judges, as a fundamental law. It therefore belongs to them to ascertain
its meaning, as well as the meaning of any particular act proceeding from the
legislative body. If there should happen to be an irreconcilable variance
between the two, that which has the superior obligation and validity ought, of
course, to be preferred; or, in other words, the Constitution ought to be
preferred to the statute, the intention of the people to the intention of
their agents.
12 Nor does this conclusion by any means suppose a
superiority of the judicial to the legislative power. It only supposes that
the power of the people is superior to both; and that where the will of the
legislature, declared in its statutes, stands in opposition to that of the
people, declared in the Constitution, the judges ought to be governed by the
latter rather than the former. They ought to regulate their decisions by the
fundamental laws, rather than by those which are not fundamental.
13 This exercise of judicial discretion, in determining
between two contradictory laws, is exemplified in a familiar instance. It not
uncommonly happens, that there are two statutes existing at one time, clashing
in whole or in part with each other, and neither of them containing any
repealing clause or expression. In such a case, it is the province of the
courts to liquidate and fix their meaning and operation. So far as they can,
by any fair construction, be reconciled to each other, reason and law conspire
to dictate that this should be done; where this is impracticable, it becomes a
matter of necessity to give effect to one, in exclusion of the other. The rule
which has obtained in the courts for determining their relative validity is,
that the last in order of time shall be preferred to the first. But this is a
mere rule of construction, not derived from any positive law, but from the
nature and reason of the thing. It is a rule not enjoined upon the courts by
legislative provision, but adopted by themselves, as consonant to truth and
propriety, for the direction of their conduct as interpreters of the law. They
thought it reasonable, that between the interfering acts of an EQUAL
authority, that which was the last indication of its will should have the
preference.
14 But in regard to the interfering acts of a superior
and subordinate authority, of an original and derivative power, the nature and
reason of the thing indicate the converse of that rule as proper to be
followed. They teach us that the prior act of a superior ought to be preferred
to the subsequent act of an inferior and subordinate authority; and that
accordingly, whenever a particular statute contravenes the Constitution, it
will be the duty of the judicial tribunals to adhere to the latter and
disregard the former.
15 It can be of no weight to say that the courts, on the
pretense of a repugnancy, may substitute their own pleasure to the
constitutional intentions of the legislature. This might as well happen in the
case of two contradictory statutes; or it might as well happen in every
adjudication upon any single statute. The courts must declare the sense of the
law; and if they should be disposed to exercise WILL instead of JUDGMENT, the
consequence would equally be the substitution of their pleasure to that of the
legislative body. The observation, if it prove any thing, would prove that
there ought to be no judges distinct from that body.
16 If, then, the courts of justice are to be considered
as the bulwarks of a limited Constitution against legislative encroachments,
this consideration will afford a strong argument for the permanent tenure of
judicial offices, since nothing will contribute so much as this to that
independent spirit in the judges which must be essential to the faithful
performance of so arduous a duty.
17 This independence of the judges is equally requisite
to guard the Constitution and the rights of individuals from the effects of
those ill humors, which the arts of designing men, or the influence of
particular conjunctures, sometimes disseminate among the people themselves,
and which, though they speedily give place to better information, and more
deliberate reflection, have a tendency, in the meantime, to occasion dangerous
innovations in the government, and serious oppressions of the minor party in
the community. Though I trust the friends of the proposed Constitution will
never concur with its enemies,[3] in questioning that fundamental principle of
republican government, which admits the right of the people to alter or
abolish the established Constitution, whenever they find it inconsistent with
their happiness, yet it is not to be inferred from this principle, that the
representatives of the people, whenever a momentary inclination happens to lay
hold of a majority of their constituents, incompatible with the provisions in
the existing Constitution, would, on that account, be justifiable in a
violation of those provisions; or that the courts would be under a greater
obligation to connive at infractions in this shape, than when they had
proceeded wholly from the cabals of the representative body. Until the people
have, by some solemn and authoritative act, annulled or changed the
established form, it is binding upon themselves collectively, as well as
individually; and no presumption, or even knowledge, of their sentiments, can
warrant their representatives in a departure from it, prior to such an act.
But it is easy to see, that it would require an uncommon portion of fortitude
in the judges to do their duty as faithful guardians of the Constitution,
where legislative invasions of it had been instigated by the major voice of
the community.
18 But it is not with a view to infractions of the
Constitution only, that the independence of the judges may be an essential
safeguard against the effects of occasional ill humors in the society. These
sometimes extend no farther than to the injury of the private rights of
particular classes of citizens, by unjust and partial laws. Here also the
firmness of the judicial magistracy is of vast importance in mitigating the
severity and confining the operation of such laws. It not only serves to
moderate the immediate mischiefs of those which may have been passed, but it
operates as a check upon the legislative body in passing them; who, perceiving
that obstacles to the success of iniquitous intention are to be expected from
the scruples of the courts, are in a manner compelled, by the very motives of
the injustice they meditate, to qualify their attempts. This is a circumstance
calculated to have more influence upon the character of our governments, than
but few may be aware of. The benefits of the integrity and moderation of the
judiciary have already been felt in more States than one; and though they may
have displeased those whose sinister expectations they may have disappointed,
they must have commanded the esteem and applause of all the virtuous and
disinterested. Considerate men, of every description, ought to prize whatever
will tend to beget or fortify that temper in the courts: as no man can be sure
that he may not be to-morrow the victim of a spirit of injustice, by which he
may be a gainer to-day. And every man must now feel, that the inevitable
tendency of such a spirit is to sap the foundations of public and private
confidence, and to introduce in its stead universal distrust and distress.
19 That inflexible and uniform adherence to the rights
of the Constitution, and of individuals, which we perceive to be indispensable
in the courts of justice, can certainly not be expected from judges who hold
their offices by a temporary commission. Periodical appointments, however
regulated, or by whomsoever made, would, in some way or other, be fatal to
their necessary independence. If the power of making them was committed either
to the Executive or legislature, there would be danger of an improper
complaisance to the branch which possessed it; if to both, there would be an
unwillingness to hazard the displeasure of either; if to the people, or to
persons chosen by them for the special purpose, there would be too great a
disposition to consult popularity, to justify a reliance that nothing would be
consulted but the Constitution and the laws.
20 There is yet a further and a weightier reason for the
permanency of the judicial offices, which is deducible from the nature of the
qualifications they require. It has been frequently remarked, with great
propriety, that a voluminous code of laws is one of the inconveniences
necessarily connected with the advantages of a free government. To avoid an
arbitrary discretion in the courts, it is indispensable that they should be
bound down by strict rules and precedents, which serve to define and point out
their duty in every particular case that comes before them; and it will
readily be conceived from the variety of controversies which grow out of the
folly and wickedness of mankind, that the records of those precedents must
unavoidably swell to a very considerable bulk, and must demand long and
laborious study to acquire a competent knowledge of them. Hence it is, that
there can be but few men in the society who will have sufficient skill in the
laws to qualify them for the stations of judges. And making the proper
deductions for the ordinary depravity of human nature, the number must be
still smaller of those who unite the requisite integrity with the requisite
knowledge. These considerations apprise us, that the government can have no
great option between fit character; and that a temporary duration in office,
which would naturally discourage such characters from quitting a lucrative
line of practice to accept a seat on the bench, would have a tendency to throw
the administration of justice into hands less able, and less well qualified,
to conduct it with utility and dignity. In the present circumstances of this
country, and in those in which it is likely to be for a long time to come, the
disadvantages on this score would be greater than they may at first sight
appear; but it must be confessed, that they are far inferior to those which
present themselves under the other aspects of the subject.
21 Upon the whole, there can be no room to doubt that
the convention acted wisely in copying from the models of those constitutions
which have established good behavior as the tenure of their judicial offices,
in point of duration; and that so far from being blamable on this account,
their plan would have been inexcusably defective, if it had wanted this
important feature of good government. The experience of Great Britain affords
an illustrious comment on the excellence of the institution.
PUBLIUS
1. The celebrated Montesquieu, speaking of them,
says: "Of the three powers above mentioned, the judiciary is next to
nothing." -- Spirit of Laws. Vol. I, page 186.
2. Idem, page 181.
3. Vide Protest of the Minority of the Convention of
Pennsylvania, Martin's Speech, etc.
FEDERALIST No. 79
The Judiciary Continued From MCLEAN's
Edition, New York.
Wednesday, May 28, 1788
HAMILTON
To the People of the State of New York:
NEXT to permanency in office, nothing can contribute
more to the independence of the judges than a fixed provision for their
support. The remark made in relation to the President is equally applicable
here. In the general course of human nature, a power over a man's subsistence
amounts to a power over his will. And we can never hope to see realized in
practice, the complete separation of the judicial from the legislative power,
in any system which leaves the former dependent for pecuniary resources on the
occasional grants of the latter. The enlightened friends to good government in
every State, have seen cause to lament the want of precise and explicit
precautions in the State constitutions on this head. Some of these indeed have
declared that permanent[1] salaries should be established for the judges; but
the experiment has in some instances shown that such expressions are not
sufficiently definite to preclude legislative evasions. Something still more
positive and unequivocal has been evinced to be requisite. The plan of the
convention accordingly has provided that the judges of the United States
"shall at stated times receive for their services a compensation which
shall not be diminished during their continuance in office."
2 This, all circumstances considered, is the most
eligible provision that could have been devised. It will readily be understood
that the fluctuations in the value of money and in the state of society
rendered a fixed rate of compensation in the Constitution inadmissible. What
might be extravagant to-day, might in half a century become penurious and
inadequate. It was therefore necessary to leave it to the discretion of the
legislature to vary its provisions in conformity to the variations in
circumstances, yet under such restrictions as to put it out of the power of
that body to change the condition of the individual for the worse. A man may
then be sure of the ground upon which he stands, and can never be deterred
from his duty by the apprehension of being placed in a less eligible
situation. The clause which has been quoted combines both advantages. The
salaries of judicial officers may from time to time be altered, as occasion
shall require, yet so as never to lessen the allowance with which any
particular judge comes into office, in respect to him. It will be observed
that a difference has been made by the convention between the compensation of
the President and of the judges, That of the former can neither be increased
nor diminished; that of the latter can only not be diminished. This probably
arose from the difference in the duration of the respective offices. As the
President is to be elected for no more than four years, it can rarely happen
that an adequate salary, fixed at the commencement of that period, will not
continue to be such to its end. But with regard to the judges, who, if they
behave properly, will be secured in their places for life, it may well happen,
especially in the early stages of the government, that a stipend, which would
be very sufficient at their first appointment, would become too small in the
progress of their service.
3 This provision for the support of the judges bears
every mark of prudence and efficacy; and it may be safely affirmed that,
together with the permanent tenure of their offices, it affords a better
prospect of their independence than is discoverable in the constitutions of
any of the States in regard to their own judges.
4 The precautions for their responsibility are
comprised in the article respecting impeachments. They are liable to be
impeached for malconduct by the House of Representatives, and tried by the
Senate; and, if convicted, may be dismissed from office, and disqualified for
holding any other. This is the only provision on the point which is consistent
with the necessary independence of the judicial character, and is the only one
which we find in our own Constitution in respect to our own judges.
5 The want of a provision for removing the judges on
account of inability has been a subject of complaint. But all considerate men
will be sensible that such a provision would either not be practiced upon or
would be more liable to abuse than calculated to answer any good purpose. The
mensuration of the faculties of the mind has, I believe, no place in the
catalogue of known arts. An attempt to fix the boundary between the regions of
ability and inability, would much oftener give scope to personal and party
attachments and enmities than advance the interests of justice or the public
good. The result, except in the case of insanity, must for the most part be
arbitrary; and insanity, without any formal or express provision, may be
safely pronounced to be a virtual disqualification.
6 The constitution of New York, to avoid investigations
that must forever be vague and dangerous, has taken a particular age as the
criterion of inability. No man can be a judge beyond sixty. I believe there
are few at present who do not disapprove of this provision. There is no
station, in relation to which it is less proper than to that of a judge. The
deliberating and comparing faculties generally preserve their strength much
beyond that period in men who survive it; and when, in addition to this
circumstance, we consider how few there are who outlive the season of
intellectual vigor, and how improbable it is that any considerable portion of
the bench, whether more or less numerous, should be in such a situation at the
same time, we shall be ready to conclude that limitations of this sort have
little to recommend them. In a republic, where fortunes are not affluent, and
pensions not expedient, the dismission of men from stations in which they have
served their country long and usefully, on which they depend for subsistence,
and from which it will be too late to resort to any other occupation for a
livelihood, ought to have some better apology to humanity than is to be found
in the imaginary danger of a superannuated bench.
PUBLIUS
1. Vide Constitution of Massachusetts, Chapter 2,
Section 1, Article 13.
FEDERALIST No. 80
The Powers of the Judiciary From
McLEAN's Edition, New York.
Wednesday, May 28, 1788
HAMILTON
To the People of the State of New York:
TO JUDGE with accuracy of the proper extent of the
federal judicature, it will be necessary to consider, in the first place, what
are its proper objects.
2 It seems scarcely to admit of controversy, that the
judicary authority of the Union ought to extend to these several descriptions
of cases: 1st, to all those which arise out of the laws of the United States,
passed in pursuance of their just and constitutional powers of legislation;
2d, to all those which concern the execution of the provisions expressly
contained in the articles of Union; 3d, to all those in which the United
States are a party; 4th, to all those which involve the PEACE of the
CONFEDERACY, whether they relate to the intercourse between the United States
and foreign nations, or to that between the States themselves; 5th, to all
those which originate on the high seas, and are of admiralty or maritime
jurisdiction; and, lastly, to all those in which the State tribunals cannot be
supposed to be impartial and unbiased.
3 The first point depends upon this obvious
consideration, that there ought always to be a constitutional method of giving
efficacy to constitutional provisions. What, for instance, would avail
restrictions on the authority of the State legislatures, without some
constitutional mode of enforcing the observance of them? The States, by the
plan of the convention, are prohibited from doing a variety of things, some of
which are incompatible with the interests of the Union, and others with the
principles of good government. The imposition of duties on imported articles,
and the emission of paper money, are specimens of each kind. No man of sense
will believe, that such prohibitions would be scrupulously regarded, without
some effectual power in the government to restrain or correct the infractions
of them. This power must either be a direct negative on the State laws, or an
authority in the federal courts to overrule such as might be in manifest
contravention of the articles of Union. There is no third course that I can
imagine. The latter appears to have been thought by the convention preferable
to the former, and, I presume, will be most agreeable to the States.
4 As to the second point, it is impossible, by any
argument or comment, to make it clearer than it is in itself. If there are
such things as political axioms, the propriety of the judicial power of a
government being coextensive with its legislative, may be ranked among the
number. The mere necessity of uniformity in the interpretation of the national
laws, decides the question. Thirteen independent courts of final jurisdiction
over the same causes, arising upon the same laws, is a hydra in government,
from which nothing but contradiction and confusion can proceed.
5 Still less need be said in regard to the third point.
Controversies between the nation and its members or citizens, can only be
properly referred to the national tribunals. Any other plan would be contrary
to reason, to precedent, and to decorum.
6 The fourth point rests on this plain proposition,
that the peace of the WHOLE ought not to be left at the disposal of a PART.
The Union will undoubtedly be answerable to foreign powers for the conduct of
its members. And the responsibility for an injury ought ever to be accompanied
with the faculty of preventing it. As the denial or perversion of justice by
the sentences of courts, as well as in any other manner, is with reason
classed among the just causes of war, it will follow that the federal
judiciary ought to have cognizance of all causes in which the citizens of
other countries are concerned. This is not less essential to the preservation
of the public faith, than to the security of the public tranquillity. A
distinction may perhaps be imagined between cases arising upon treaties and
the laws of nations and those which may stand merely on the footing of the
municipal law. The former kind may be supposed proper for the federal
jurisdiction, the latter for that of the States. But it is at least
problematical, whether an unjust sentence against a foreigner, where the
subject of controversy was wholly relative to the lex loci, would not, if
unredressed, be an aggression upon his sovereign, as well as one which
violated the stipulations of a treaty or the general law of nations. And a
still greater objection to the distinction would result from the immense
difficulty, if not impossibility, of a practical discrimination between the
cases of one complexion and those of the other. So great a proportion of the
cases in which foreigners are parties, involve national questions, that it is
by far most safe and most expedient to refer all those in which they are
concerned to the national tribunals.
7 The power of determining causes between two States,
between one State and the citizens of another, and between the citizens of
different States, is perhaps not less essential to the peace of the Union than
that which has been just examined. History gives us a horrid picture of the
dissensions and private wars which distracted and desolated Germany prior to
the institution of the Imperial Chamber by Maximilian, towards the close of
the fifteenth century; and informs us, at the same time, of the vast influence
of that institution in appeasing the disorders and establishing the
tranquillity of the empire. This was a court invested with authority to decide
finally all differences among the members of the Germanic body.
8 A method of terminating territorial disputes between
the States, under the authority of the federal head, was not unattended to,
even in the imperfect system by which they have been hitherto held together.
But there are many other sources, besides interfering claims of boundary, from
which bickerings and animosities may spring up among the members of the Union.
To some of these we have been witnesses in the course of our past experience.
It will readily be conjectured that I allude to the fraudulent laws which have
been passed in too many of the States. And though the proposed Constitution
establishes particular guards against the repetition of those instances which
have heretofore made their appearance, yet it is warrantable to apprehend that
the spirit which produced them will assume new shapes, that could not be
foreseen nor specifically provided against. Whatever practices may have a
tendency to disturb the harmony between the States, are proper objects of
federal superintendence and control.
9 It may be esteemed the basis of the Union, that
"the citizens of each State shall be entitled to all the privileges and
immunities of citizens of the several States." And if it be a just
principle that every government ought to possess the means of executing its
own provisions by its own authority, it will follow, that in order to the
inviolable maintenance of that equality of privileges and immunities to which
the citizens of the Union will be entitled, the national judiciary ought to
preside in all cases in which one State or its citizens are opposed to another
State or its citizens. To secure the full effect of so fundamental a provision
against all evasion and subterfuge, it is necessary that its construction
should be committed to that tribunal which, having no local attachments, will
be likely to be impartial between the different States and their citizens, and
which, owing its official existence to the Union, will never be likely to feel
any bias inauspicious to the principles on which it is founded.
10 The fifth point will demand little animadversion. The
most bigoted idolizers of State authority have not thus far shown a
disposition to deny the national judiciary the cognizances of maritime causes.
These so generally depend on the laws of nations, and so commonly affect the
rights of foreigners, that they fall within the considerations which are
relative to the public peace. The most important part of them are, by the
present Confederation, submitted to federal jurisdiction.
11 The reasonableness of the agency of the national
courts in cases in which the State tribunals cannot be supposed to be
impartial, speaks for itself. No man ought certainly to be a judge in his own
cause, or in any cause in respect to which he has the least interest or bias.
This principle has no inconsiderable weight in designating the federal courts
as the proper tribunals for the determination of controversies between
different States and their citizens. And it ought to have the same operation
in regard to some cases between citizens of the same State. Claims to land
under grants of different States, founded upon adverse pretensions of
boundary, are of this description. The courts of neither of the granting
States could be expected to be unbiased. The laws may have even prejudged the
question, and tied the courts down to decisions in favor of the grants of the
State to which they belonged. And even where this had not been done, it would
be natural that the judges, as men, should feel a strong predilection to the
claims of their own government.
12 Having thus laid down and discussed the principles
which ought to regulate the constitution of the federal judiciary, we will
proceed to test, by these principles, the particular powers of which,
according to the plan of the convention, it is to be composed. It is to
comprehend "all cases in law and equity arising under the Constitution,
the laws of the United States, and treaties made, or which shall be made,
under their authority; to all cases affecting ambassadors, other public
ministers, and consuls; to all cases of admiralty and maritime jurisdiction;
to controversies to which the United States shall be a party; to controversies
between two or more States; between a State and citizens of another State;
between citizens of different States; between citizens of the same State
claiming lands and grants of different States; and between a State or the
citizens thereof and foreign states, citizens, and subjects." This
constitutes the entire mass of the judicial authority of the Union. Let us now
review it in detail. It is, then, to extend:
13 First. To all cases in law and equity, arising under
the Constitution and the laws of the United States. This corresponds with the
two first classes of causes, which have been enumerated, as proper for the
jurisdiction of the United States. It has been asked, what is meant by
"cases arising under the Constitution," in contradiction from those
"arising under the laws of the United States"? The difference has
been already explained. All the restrictions upon the authority of the State
legislatures furnish examples of it. They are not, for instance, to emit paper
money; but the interdiction results from the Constitution, and will have no
connection with any law of the United States. Should paper money,
notwithstanding, be emited, the controversies concerning it would be cases
arising under the Constitution and not the laws of the United States, in the
ordinary signification of the terms. This may serve as a sample of the whole.
14 It has also been asked, what need of the word
"equity What equitable causes can grow out of the Constitution and laws
of the United States? There is hardly a subject of litigation between
individuals, which may not involve those ingredients of fraud, accident,
trust, or hardship, which would render the matter an object of equitable
rather than of legal jurisdiction, as the distinction is known and established
in several of the States. It is the peculiar province, for instance, of a
court of equity to relieve against what are called hard bargains: these are
contracts in which, though there may have been no direct fraud or deceit,
sufficient to invalidate them in a court of law, yet there may have been some
undue and unconscionable advantage taken of the necessities or misfortunes of
one of the parties, which a court of equity would not tolerate. In such cases,
where foreigners were concerned on either side, it would be impossible for the
federal judicatories to do justice without an equitable as well as a legal
jurisdiction. Agreements to convey lands claimed under the grants of different
States, may afford another example of the necessity of an equitable
jurisdiction in the federal courts. This reasoning may not be so palpable in
those States where the formal and technical distinction between LAW and EQUITY
is not maintained, as in this State, where it is exemplified by every day's
practice.
The judiciary authority of the Union is to extend:
Second. To treaties made, or which shall be made,
under the authority of the United States, and to all cases affecting
ambassadors, other public ministers, and consuls. These belong to the fourth
class of the enumerated cases, as they have an evident connection with the
preservation of the national peace.
Third. To cases of admiralty and maritime
jurisdiction. These form, altogether, the fifth of the enumerated classes of
causes proper for the cognizance of the national courts.
Fourth. To controversies to which the United States
shall be a party. These constitute the third of those classes.
Fifth. To controversies between two or more States;
between a State and citizens of another State; between citizens of different
States. These belong to the fourth of those classes, and partake, in some
measure, of the nature of the last.
Sixth. To cases between the citizens of the same
State, claiming lands under grants of different States. These fall within the
last class, and are the only instances in which the proposed Constitution
directly contemplates the cognizance of disputes between the citizens of the
same State.
Seventh. To cases between a State and the citizens
thereof, and foreign States, citizens, or subjects. These have been already
explained to belong to the fourth of the enumerated classes, and have been
shown to be, in a peculiar manner, the proper subjects of the national
judicature.
15 From this review of the particular powers of the
federal judiciary, as marked out in the Constitution, it appears that they are
all conformable to the principles which ought to have governed the structure
of that department, and which were necessary to the perfection of the system.
If some partial inconviences should appear to be connected with the
incorporation of any of them into the plan, it ought to be recollected that
the national legislature will have ample authority to make such exceptions,
and to prescribe such regulations as will be calculated to obviate or remove
these inconveniences. The possibility of particular mischiefs can never be
viewed, by a wellinformed mind, as a solid objection to a general principle,
which is calculated to avoid general mischiefs and to obtain general
advantages.
PUBLIUS
FEDERALIST No. 81
The Judiciary Continued, and the
Distribution of the Judicial Authority From McLEAN's Edition, New York.
Wednesday, May 28, 1788
HAMILTON
To the People of the State of New York:
LET US now return to the partition of the judiciary
authority between different courts, and their relations to each other.
"The judicial power of the United States
is" (by the plan of the convention) "to be vested in one Supreme
Court, and in such inferior courts as the Congress may, from time to time,
ordain and establish."[1]
2 That there ought to be one court of supreme and final
jurisdiction, is a proposition which is not likely to be contested. The
reasons for it have been assigned in another place, and are too obvious to
need repetition. The only question that seems to have been raised concerning
it, is, whether it ought to be a distinct body or a branch of the legislature.
The same contradiction is observable in regard to this matter which has been
remarked in several other cases. The very men who object to the Senate as a
court of impeachments, on the ground of an improper intermixture of powers,
advocate, by implication at least, the propriety of vesting the ultimate
decision of all causes, in the whole or in a part of the legislative body.
3 The arguments, or rather suggestions, upon which this
charge is founded, are to this effect: "The authority of the proposed
Supreme Court of the United States, which is to be a separate and independent
body, will be superior to that of the legislature. The power of construing the
laws according to the spirit of the Constitution, will enable that court to
mould them into whatever shape it may think proper; especially as its
decisions will not be in any manner subject to the revision or correction of
the legislative body. This is as unprecedented as it is dangerous. In Britain,
the judical power, in the last resort, resides in the House of Lords, which is
a branch of the legislature; and this part of the British government has been
imitated in the State constitutions in general. The Parliament of Great
Britain, and the legislatures of the several States, can at any time rectify,
by law, the exceptionable decisions of their respective courts. But the errors
and usurpations of the Supreme Court of the United States will be
uncontrollable and remediless." This, upon examination, will be found to
be made up altogether of false reasoning upon misconceived fact.
4 In the first place, there is not a syllable in the
plan under consideration which directly empowers the national courts to
construe the laws according to the spirit of the Constitution, or which gives
them any greater latitude in this respect than may be claimed by the courts of
every State. I admit, however, that the Constitution ought to be the standard
of construction for the laws, and that wherever there is an evident
opposition, the laws ought to give place to the Constitution. But this
doctrine is not deducible from any circumstance peculiar to the plan of the
convention, but from the general theory of a limited Constitution; and as far
as it is true, is equally applicable to most, if not to all the State
governments. There can be no objection, therefore, on this account, to the
federal judicature which will not lie against the local judicatures in
general, and which will not serve to condemn every constitution that attempts
to set bounds to legislative discretion.
5 But perhaps the force of the objection may be thought
to consist in the particular organization of the Supreme Court; in its being
composed of a distinct body of magistrates, instead of being one of the
branches of the legislature, as in the government of Great Britain and that of
the State. To insist upon this point, the authors of the objection must
renounce the meaning they have labored to annex to the celebrated maxim,
requiring a separation of the departments of power. It shall, nevertheless, be
conceded to them, agreeably to the interpretation given to that maxim in the
course of these papers, that it is not violated by vesting the ultimate power
of judging in a PART of the legislative body. But though this be not an
absolute violation of that excellent rule, yet it verges so nearly upon it, as
on this account alone to be less eligible than the mode preferred by the
convention. From a body which had even a partial agency in passing bad laws,
we could rarely expect a disposition to temper and moderate them in the
application. The same spirit which had operated in making them, would be too
apt in interpreting them; still less could it be expected that men who had
infringed the Constitution in the character of legislators, would be disposed
to repair the breach in the character of judges. Nor is this all. Every reason
which recommends the tenure of good behavior for judicial offices, militates
against placing the judiciary power, in the last resort, in a body composed of
men chosen for a limited period. There is an absurdity in referring the
determination of causes, in the first instance, to judges of permanent
standing; in the last, to those of a temporary and mutable constitution. And
there is a still greater absurdity in subjecting the decisions of men,
selected for their knowledge of the laws, acquired by long and laborious
study, to the revision and control of men who, for want of the same advantage,
cannot but be deficient in that knowledge. The members of the legislature will
rarely be chosen with a view to those qualifications which fit men for the
stations of judges; and as, on this account, there will be great reason to
apprehend all the ill consequences of defective information, so, on account of
the natural propensity of such bodies to party divisions, there will be no
less reason to fear that the pestilential breath of faction may poison the
fountains of justice. The habit of being continually marshalled on opposite
sides will be too apt to stifle the voice both of law and of equity.
6 These considerations teach us to applaud the wisdom
of those States who have committed the judicial power, in the last resort, not
to a part of the legislature, but to distinct and independent bodies of men.
Contrary to the supposition of those who have represented the plan of the
convention, in this respect, as novel and unprecedented, it is but a copy of
the constitutions of New Hampshire, Massachusetts, Pennsylvania, Delaware,
Maryland, Virginia, North Carolina, South Carolina, and Georgia; and the
preference which has been given to those models is highly to be commended.
7 It is not true, in the second place, that the
Parliament of Great Britain, or the legislatures of the particular States, can
rectify the exceptionable decisions of their respective courts, in any other
sense than might be done by a future legislature of the United States. The
theory, neither of the British, nor the State constitutions, authorizes the
revisal of a judicial sentence by a legislative act. Nor is there any thing in
the proposed Constitution, more than in either of them, by which it is
forbidden. In the former, as well as in the latter, the impropriety of the
thing, on the general principles of law and reason, is the sole obstacle. A
legislature, without exceeding its province, cannot reverse a determination
once made in a particular case; though it may prescribe a new rule for future
cases. This is the principle, and it applies in all its consequences, exactly
in the same manner and extent, to the State governments, as to the national
government now under consideration. Not the least difference can be pointed
out in any view of the subject.
8 It may in the last place be observed that the
supposed danger of judiciary encroachments on the legislative authority, which
has been upon many occasions reiterated, is in reality a phantom. Particular
misconstructions and contraventions of the will of the legislature may now and
then happen; but they can never be so extensive as to amount to an
inconvenience, or in any sensible degree to affect the order of the political
system. This may be inferred with certainty, from the general nature of the
judicial power, from the objects to which it relates, from the manner in which
it is exercised, from its comparative weakness, and from its total incapacity
to support its usurpations by force. And the inference is greatly fortified by
the consideration of the important constitutional check which the power of
instituting impeachments in one part of the legislative body, and of
determining upon them in the other, would give to that body upon the members
of the judicial department. This is alone a complete security. There never can
be danger that the judges, by a series of deliberate usurpations on the
authority of the legislature, would hazard the united resentment of the body
intrusted with it, while this body was possessed of the means of punishing
their presumption, by degrading them from their stations. While this ought to
remove all apprehensions on the subject, it affords, at the same time, a
cogent argument for constituting the Senate a court for the trial of
impeachments.
9 Having now examined, and, I trust, removed the
objections to the distinct and independent organization of the Supreme Court,
I proceed to consider the propriety of the power of constituting inferior
courts,[2] and the relations which will subsist between these and the former.
10 The power of constituting inferior courts is
evidently calculated to obviate the necessity of having recourse to the
Supreme Court in every case of federal cognizance. It is intended to enable
the national government to institute or authorize, in each State or district
of the United States, a tribunal competent to the determination of matters of
national jurisdiction within its limits.
11 But why, it is asked, might not the same purpose have
been accomplished by the instrumentality of the State courts? This admits of
different answers. Though the fitness and competency of those courts should be
allowed in the utmost latitude, yet the substance of the power in question may
still be regarded as a necessary part of the plan, if it were only to empower
the national legislature to commit to them the cognizance of causes arising
out of the national Constitution. To confer the power of determining such
causes upon the existing courts of the several States, would perhaps be as
much "to constitute tribunals," as to create new courts with the
like power. But ought not a more direct and explicit provision to have been
made in favor of the State courts? There are, in my opinion, substantial
reasons against such a provision: the most discerning cannot foresee how far
the prevalency of a local spirit may be found to disqualify the local
tribunals for the jurisdiction of national causes; whilst every man may
discover, that courts constituted like those of some of the States would be
improper channels of the judicial authority of the Union. State judges,
holding their offices during pleasure, or from year to year, will be too
little independent to be relied upon for an inflexible execution of the
national laws. And if there was a necessity for confiding the original
cognizance of causes arising under those laws to them there would be a
correspondent necessity for leaving the door of appeal as wide as possible. In
proportion to the grounds of confidence in, or distrust of, the subordinate
tribunals, ought to be the facility or difficulty of appeals. And well
satisfied as I am of the propriety of the appellate jurisdiction, in the
several classes of causes to which it is extended by the plan of the
convention. I should consider every thing calculated to give, in practice, an
unrestrained course to appeals, as a source of public and private
inconvenience.
12 I am not sure, but that it will be found highly
expedient and useful, to divide the United States into four or five or half a
dozen districts; and to institute a federal court in each district, in lieu of
one in every State. The judges of these courts, with the aid of the State
judges, may hold circuits for the trial of causes in the several parts of the
respective districts. Justice through them may be administered with ease and
despatch; and appeals may be safely circumscribed within a narrow compass.
This plan appears to me at present the most eligible of any that could be
adopted; and in order to it, it is necessary that the power of constituting
inferior courts should exist in the full extent in which it is to be found in
the proposed Constitution.
13 These reasons seem sufficient to satisfy a candid
mind, that the want of such a power would have been a great defect in the
plan. Let us now examine in what manner the judicial authority is to be
distributed between the supreme and the inferior courts of the Union.
1 The Supreme Court is to be invested with original
jurisdiction, only "in cases affecting ambassadors, other public
ministers, and consuls, and those in which A STATE shall be a party."
Public ministers of every class are the immediate representatives of their
sovereigns. All questions in which they are concerned are so directly
connected with the public peace, that, as well for the preservation of this,
as out of respect to the sovereignties they represent, it is both expedient
and proper that such questions should be submitted in the first instance to
the highest judicatory of the nation. Though consuls have not in strictness a
diplomatic character, yet as they are the public agents of the nations to
which they belong, the same observation is in a great measure applicable to
them. In cases in which a State might happen to be a party, it would ill suit
its dignity to be turned over to an inferior tribunal.
15 Though it may rather be a digression from the
immediate subject of this paper, I shall take occasion to mention here a
supposition which has excited some alarm upon very mistaken grounds. It has
been suggested that an assignment of the public securities of one State to the
citizens of another, would enable them to prosecute that State in the federal
courts for the amount of those securities; a suggestion which the following
considerations prove to be without foundation.
16 It is inherent in the nature of sovereignty not to be
amenable to the suit of an individual without its consent. This is the general
sense, and the general practice of mankind; and the exemption, as one of the
attributes of sovereignty, is now enjoyed by the government of every State in
the Union. Unless, therefore, there is a surrender of this immunity in the
plan of the convention, it will remain with the States, and the danger
intimated must be merely ideal. The circumstances which are necessary to
produce an alienation of State sovereignty were discussed in considering the
article of taxation, and need not be repeated here. A recurrence to the
principles there established will satisfy us, that there is no color to
pretend that the State governments would, by the adoption of that plan, be
divested of the privilege of paying their own debts in their own way, free
from every constraint but that which flows from the obligations of good faith.
The contracts between a nation and individuals are only binding on the
conscience of the sovereign, and have no pretensions to a compulsive force.
They confer no right of action, independent of the sovereign will. To what
purpose would it be to authorize suits against States for the debts they owe?
How could recoveries be enforced? It is evident, it could not be done without
waging war against the contracting State; and to ascribe to the federal
courts, by mere implication, and in destruction of a pre-existing right of the
State governments, a power which would involve such a consequence, would be
altogether forced and unwarrantable.
17 Let us resume the train of our observations. We have
seen that the original jurisdiction of the Supreme Court would be confined to
two classes of causes, and those of a nature rarely to occur. In all other
cases of federal cognizance, the original jurisdiction would appertain to the
inferior tribunals; and the Supreme Court would have nothing more than an
appellate jurisdiction, "with such exceptions and under such regulations
as the Congress shall make."
18 The propriety of this appellate jurisdiction has been
scarcely called in question in regard to matters of law; but the clamors have
been loud against it as applied to matters of fact. Some well-intentioned men
in this State, deriving their notions from the language and forms which obtain
in our courts, have been induced to consider it as an implied supersedure of
the trial by jury, in favor of the civil-law mode of trial, which prevails in
our courts of admiralty, probate, and chancery. A technical sense has been
affixed to the term "appellate," which, in our law parlance, is
commonly used in reference to appeals in the course of the civil law. But if I
am not misinformed, the same meaning would not be given to it in any part of
New England. There an appeal from one jury to another, is familiar both in
language and practice, and is even a matter of course, until there have been
two verdicts on one side. The word "appellate," therefore, will not
be understood in the same sense in New England as in New York, which shows the
impropriety of a technical interpretation derived from the jurisprudence of
any particular State. The expression, taken in the abstract, denotes nothing
more than the power of one tribunal to review the proceedings of another,
either as to the law or fact, or both. The mode of doing it may depend on
ancient custom or legislative provision (in a new government it must depend on
the latter), and may be with or without the aid of a jury, as may be judged
advisable. If, therefore, the re-examination of a fact once determined by a
jury, should in any case be admitted under the proposed Constitution, it may
be so regulated as to be done by a second jury, either by remanding the cause
to the court below for a second trial of the fact, or by directing an issue
immediately out of the Supreme Court.
19 But it does not follow that the re-examination of a
fact once ascertained by a jury, will be permitted in the Supreme Court. Why
may not it be said, with the strictest propriety, when a writ of error is
brought from an inferior to a superior court of law in this State, that the
latter has jurisdiction of the fact as well as the law? It is true it cannot
institute a new inquiry concerning the fact, but it takes cognizance of it as
it appears upon the record, and pronounces the law arising upon it.[3] This is
jurisdiction of both fact and law; nor is it even possible to separate them.
Though the common-law courts of this State ascertain disputed facts by a jury,
yet they unquestionably have jurisdiction of both fact and law; and
accordingly when the former is agreed in the pleadings, they have no recourse
to a jury, but proceed at once to judgment. I contend, therefore, on this
ground, that the expressions, "appellate jurisdiction, both as to law and
fact," do not necessarily imply a re-examination in the Supreme Court of
facts decided by juries in the inferior courts.
20 The following train of ideas may well be imagined to
have influenced the convention, in relation to this particular provision. The
appellate jurisdiction of the Supreme Court (it may have been argued) will
extend to causes determinable in different modes, some in the course of the
COMMON LAW, others in the course of the CIVIL LAW. In the former, the revision
of the law only will be, generally speaking, the proper province of the
Supreme Court; in the latter, the re-examination of the fact is agreeable to
usage, and in some cases, of which prize causes are an example, might be
essential to the preservation of the public peace. It is therefore necessary
that the appellate jurisdiction should, in certain cases, extend in the
broadest sense to matters of fact. It will not answer to make an express
exception of cases which shall have been originally tried by a jury, because
in the courts of some of the States all causes are tried in this mode[4]; and
such an exception would preclude the revision of matters of fact, as well
where it might be proper, as where it might be improper. To avoid all
inconveniencies, it will be safest to declare generally, that the Supreme
Court shall possess appellate jurisdiction both as to law and fact, and that
this jurisdiction shall be subject to such exceptions and regulations as the
national legislature may prescribe. This will enable the government to modify
it in such a manner as will best answer the ends of public justice and
security.
21 This view of the matter, at any rate, puts it out of
all doubt that the supposed abolition of the trial by jury, by the operation
of this provision, is fallacious and untrue. The legislature of the United
States would certainly have full power to provide, that in appeals to the
Supreme Court there should be no re-examination of facts where they had been
tried in the original causes by juries. This would certainly be an authorized
exception; but if, for the reason already intimated, it should be thought too
extensive, it might be qualified with a limitation to such causes only as are
determinable at common law in that mode of trial.
22 The amount of the observations hitherto made on the
authority of the judicial department is this: that it has been carefully
restricted to those causes which are manifestly proper for the cognizance of
the national judicature; that in the partition of this authority a very small
portion of original jurisdiction has been preserved to the Supreme Court, and
the rest consigned to the subordinate tribunals; that the Supreme Court will
possess an appellate jurisdiction, both as to law and fact, in all the cases
referred to them, both subject to any exceptions and regulations which may be
thought advisable; that this appellate jurisdiction does, in no case, abolish
the trial by jury; and that an ordinary degree of prudence and integrity in
the national councils will insure us solid advantages from the establishment
of the proposed judiciary, without exposing us to any of the inconveniences
which have been predicted from that source.
PUBLIUS
1. Article 3, Sec. 1.
2. This power has been absurdly represented as
intended to abolish all the county courts in the several States, which are
commonly called inferior courts. But the expressions of the Constitution are,
to constitute "tribunals INFERIOR TO THE SUPREME COURT"; and the
evident design of the provision is to enable the institution of local courts,
subordinate to the Supreme, either in States or larger districts. It is
ridiculous to imagine that county courts were in contemplation.
3. This word is composed of JUS and DICTIO, juris
dictio or a speaking and pronouncing of the law.
4. I hold that the States will have concurrent
jurisdiction with the subordinate federal judicatories, in many cases of
federal cognizance, as will be explained in my next paper.
FEDERALIST No. 82
The Judiciary Continued From McLEAN's
Edition, New York.
Wednesday, May 28, 1788
HAMILTON
To the People of the State of New York:
THE erection of a new government, whatever care or
wisdom may distinguish the work, cannot fail to originate questions of
intricacy and nicety; and these may, in a particular manner, be expected to
flow from the establishment of a constitution founded upon the total or
partial incorporation of a number of distinct sovereignties. 'Tis time only
that can mature and perfect so compound a system, can liquidate the meaning of
all the parts, and can adjust them to each other in a harmonious and
consistent WHOLE.
2 Such questions, accordingly, have arisen upon the
plan proposed by the convention, and particularly concerning the judiciary
department. The principal of these respect the situation of the State courts
in regard to those causes which are to be submitted to federal jurisdiction.
Is this to be exclusive, or are those courts to possess a concurrent
jurisdiction? If the latter, in what relation will they stand to the national
tribunals? These are inquiries which we meet with in the mouths of men of
sense, and which are certainly entitled to attention.
3 The principles established in a former paper[1] teach
us that the States will retain all pre-existing authorities which may not be
exclusively delegated to the federal head; and that this exclusive delegation
can only exist in one of three cases: where an exclusive authority is, in
express terms, granted to the Union; or where a particular authority is
granted to the Union, and the exercise of a like authority is prohibited to
the States; or where an authority is granted to the Union, with which a
similar authority in the States would be utterly incompatible. Though these
principles may not apply with the same force to the judiciary as to the
legislative power, yet I am inclined to think that they are, in the main, just
with respect to the former, as well as the latter. And under this impression,
I shall lay it down as a rule, that the State courts will retain the
jurisdiction they now have, unless it appears to be taken away in one of the
enumerated modes.
4 The only thing in the proposed Constitution, which
wears the appearance of confining the causes of federal cognizance to the
federal courts, is contained in this passage: "THE JUDICIAL POWER of the
United States shall be vested in one Supreme Court, and in such inferior
courts as the Congress shall from time to time ordain and establish."
This might either be construed to signify, that the supreme and subordinate
courts of the Union should alone have the power of deciding those causes to
which their authority is to extend; or simply to denote, that the organs of
the national judiciary should be one Supreme Court, and as many subordinate
courts as Congress should think proper to appoint; or in other words, that the
United States should exercise the judicial power with which they are to be
invested, through one supreme tribunal, and a certain number of inferior ones,
to be instituted by them. The first excludes, the last admits, the concurrent
jurisdiction of the State tribunals; and as the first would amount to an
alienation of State power by implication, the last appears to me the most
natural and the most defensible construction.
5 But this doctrine of concurrent jurisdiction is only
clearly applicable to those descriptions of causes of which the State courts
have previous cognizance. It is not equally evident in relation to cases which
may grow out of, and be peculiar to, the Constitution to be established; for
not to allow the State courts a right of jurisdiction in such cases, can
hardly be considered as the abridgment of a pre-existing authority. I mean not
therefore to contend that the United States, in the course of legislation upon
the objects intrusted to their direction, may not commit the decision of
causes arising upon a particular regulation to the federal courts solely, if
such a measure should be deemed expedient; but I hold that the State courts
will be divested of no part of their primitive jurisdiction, further than may
relate to an appeal; and I am even of opinion that in every case in which they
were not expressly excluded by the future acts of the national legislature,
they will of course take cognizance of the causes to which those acts may give
birth. This I infer from the nature of judiciary power, and from the general
genius of the system. The judiciary power of every government looks beyond its
own local or municipal laws, and in civil cases lays hold of all subjects of
litigation between parties within its jurisdiction, though the causes of
dispute are relative to the laws of the most distant part of the globe. Those
of Japan, not less than of New York, may furnish the objects of legal
discussion to our courts. When in addition to this we consider the State
governments and the national governments, as they truly are, in the light of
kindred systems, and as parts of ONE WHOLE, the inference seems to be
conclusive, that the State courts would have a concurrent jurisdiction in all
cases arising under the laws of the Union, where it was not expressly
prohibited.
6 Here another question occurs: What relation would
subsist between the national and State courts in these instances of concurrent
jurisdiction? I answer, that an appeal would certainly lie from the latter, to
the Supreme Court of the United States. The Constitution in direct terms gives
an appellate jurisdiction to the Supreme Court in all the enumerated cases of
federal cognizance in which it is not to have an original one, without a
single expression to confine its operation to the inferior federal courts. The
objects of appeal, not the tribunals from which it is to be made, are alone
contemplated. From this circumstance, and from the reason of the thing, it
ought to be construed to extend to the State tribunals. Either this must be
the case, or the local courts must be excluded from a concurrent jurisdiction
in matters of national concern, else the judiciary authority of the Union may
be eluded at the pleasure of every plaintiff or prosecutor. Neither of these
consequences ought, without evident necessity, to be involved; the latter
would be entirely inadmissible, as it would defeat some of the most important
and avowed purposes of the proposed government, and would essentially
embarrass its measures. Nor do I perceive any foundation for such a
supposition. Agreeably to the remark already made, the national and State
systems are to be regarded as ONE WHOLE. The courts of the latter will of
course be natural auxiliaries to the execution of the laws of the Union, and
an appeal from them will as naturally lie to that tribunal which is destined
to unite and assimilate the principles of national justice and the rules of
national decisions. The evident aim of the plan of the convention is, that all
the causes of the specified classes shall, for weighty public reasons, receive
their original or final determination in the courts of the Union. To confine,
therefore, the general expressions giving appellate jurisdiction to the
Supreme Court, to appeals from the subordinate federal courts, instead of
allowing their extension to the State courts, would be to abridge the latitude
of the terms, in subversion of the intent, contrary to every sound rule of
interpretation.
7 But could an appeal be made to lie from the State
courts to the subordinate federal judicatories? This is another of the
questions which have been raised, and of greater difficulty than the former.
The following considerations countenance the affirmative. The plan of the
convention, in the first place, authorizes the national legislature "to
constitute tribunals inferior to the Supreme Court."[2] It declares, in
the next place, that "the JUDICIAL POWER of the United States shall be
vested in one Supreme Court, and in such inferior courts as Congress shall
ordain and establish"; and it then proceeds to enumerate the cases to
which this judicial power shall extend. It afterwards divides the jurisdiction
of the Supreme Court into original and appellate, but gives no definition of
that of the subordinate courts. The only outlines described for them, are that
they shall be "inferior to the Supreme Court," and that they shall
not exceed the specified limits of the federal judiciary. Whether their
authority shall be original or appellate, or both, is not declared. All this
seems to be left to the discretion of the legislature. And this being the
case, I perceive at present no impediment to the establishment of an appeal
from the State courts to the subordinate national tribunals; and many
advantages attending the power of doing it may be imagined. It would diminish
the motives to the multiplication of federal courts, and would admit of
arrangements calculated to contract the appellate jurisdiction of the Supreme
Court. The State tribunals may then be left with a more entire charge of
federal causes; and appeals, in most cases in which they may be deemed proper,
instead of being carried to the Supreme Court, may be made to lie from the
State courts to district courts of the Union.
PUBLIUS
1. No. 31.
2. Sec. 8, Art. 1.
FEDERALIST No. 83
The Judiciary Continued in Relation to
Trial by Jury From MCLEAN's Edition, New York.
Wednesday, May 28, 1788
HAMILTON
To the People of the State of New York:
THE objection to the plan of the convention, which
has met with most success in this State, and perhaps in several of the other
States, is that relative to the want of a constitutional provision for the
trial by jury in civil cases. The disingenuous form in which this objection is
usually stated has been repeatedly adverted to and exposed, but continues to
be pursued in all the conversations and writings of the opponents of the plan.
The mere silence of the Constitution in regard to civil causes, is represented
as an abolition of the trial by jury, and the declamations to which it has
afforded a pretext are artfully calculated to induce a persuasion that this
pretended abolition is complete and universal, extending not only to every
species of civil, but even to criminal causes. To argue with respect to the
latter would, however, be as vain and fruitless as to attempt the serious
proof of the existence of matter, or to demonstrate any of those propositions
which, by their own internal evidence, force conviction, when expressed in
language adapted to convey their meaning.
2 With regard to civil causes, subtleties almost too
contemptible for refutation have been employed to countenance the surmise that
a thing which is only not provided for, is entirely abolished. Every man of
discernment must at once perceive the wide difference between silence and
abolition. But as the inventors of this fallacy have attempted to support it
by certain legal maxims of interpretation, which they have perverted from
their true meaning, it may not be wholly useless to explore the ground they
have taken.
3 The maxims on which they rely are of this nature:
"A specification of particulars is an exclusion of generals"; or,
"The expression of one thing is the exclusion of another." Hence,
say they, as the Constitution has established the trial by jury in criminal
cases, and is silent in respect to civil, this silence is an implied
prohibition of trial by jury in regard to the latter.
4 The rules of legal interpretation are rules of common
sense, adopted by the courts in the construction of the laws. The true test,
therefore, of a just application of them is its conformity to the source from
which they are derived. This being the case, let me ask if it is consistent
with common-sense to suppose that a provision obliging the legislative power
to commit the trial of criminal causes to juries, is a privation of its right
to authorize or permit that mode of trial in other cases? Is it natural to
suppose, that a command to do one thing is a prohibition to the doing of
another, which there was a previous power to do, and which is not incompatible
with the thing commanded to be done? If such a supposition would be unnatural
and unreasonable, it cannot be rational to maintain that an injunction of the
trial by jury in certain cases is an interdiction of it in others.
5 A power to constitute courts is a power to prescribe
the mode of trial; and consequently, if nothing was said in the Constitution
on the subject of juries, the legislature would be at liberty either to adopt
that institution or to let it alone. This discretion, in regard to criminal
causes, is abridged by the express injunction of trial by jury in all such
cases; but it is, of course, left at large in relation to civil causes, there
being a total silence on this head. The specification of an obligation to try
all criminal causes in a particular mode, excludes indeed the obligation or
necessity of employing the same mode in civil causes, but does not abridge the
power of the legislature to exercise that mode if it should be thought proper.
The pretense, therefore, that the national legislature would not be at full
liberty to submit all the civil causes of federal cognizance to the
determination of juries, is a pretense destitute of all just foundation.
6 From these observations this conclusion results: that
the trial by jury in civil cases would not be abolished; and that the use
attempted to be made of the maxims which have been quoted, is contrary to
reason and common-sense, and therefore not admissible. Even if these maxims
had a precise technical sense, corresponding with the idea of those who employ
them upon the present occasion, which, however, is not the case, they would
still be inapplicable to a constitution of government. In relation to such a
subject, the natural and obvious sense of its provisions, apart from any
technical rules, is the true criterion of construction.
7 Having now seen that the maxims relied upon will not
bear the use made of them, let us endeavor to ascertain their proper use and
true meaning. This will be best done by examples. The plan of the convention
declares that the power of Congress, or, in other words, of the national
legislature, shall extend to certain enumerated cases. This specification of
particulars evidently excludes all pretension to a general legislative
authority, because an affirmative grant of special powers would be absurd, as
well as useless, if a general authority was intended.
8 In like manner the judicial authority of the federal
judicatures is declared by the Constitution to comprehend certain cases
particularly specified. The expression of those cases marks the precise
limits, beyond which the federal courts cannot extend their jurisdiction,
because the objects of their cognizance being enumerated, the specification
would be nugatory if it did not exclude all ideas of more extensive authority.
9 These examples are sufficient to elucidate the maxims
which have been mentioned, and to designate the manner in which they should be
used. But that there may be no misapprehensions upon this subject, I shall add
one case more, to demonstrate the proper use of these maxims, and the abuse
which has been made of them.
10 Let us suppose that by the laws of this State a
married woman was incapable of conveying her estate, and that the legislature,
considering this as an evil, should enact that she might dispose of her
property by deed executed in the presence of a magistrate. In such a case
there can be no doubt but the specification would amount to an exclusion of
any other mode of conveyance, because the woman having no previous power to
alienate her property, the specification determines the particular mode which
she is, for that purpose, to avail herself of. But let us further suppose that
in a subsequent part of the same act it should be declared that no woman
should dispose of any estate of a determinate value without the consent of
three of her nearest relations, signified by their signing the deed; could it
be inferred from this regulation that a married woman might not procure the
approbation of her relations to a deed for conveying property of inferior
value? The position is too absurd to merit a refutation, and yet this is
precisely the position which those must establish who contend that the trial
by juries in civil cases is abolished, because it is expressly provided for in
cases of a criminal nature.
11 From these observations it must appear unquestionably
true, that trial by jury is in no case abolished by the proposed Constitution,
and it is equally true, that in those controversies between individuals in
which the great body of the people are likely to be interested, that
institution will remain precisely in the same situation in which it is placed
by the State constitutions, and will be in no degree altered or influenced by
the adoption of the plan under consideration. The foundation of this assertion
is, that the national judiciary will have no cognizance of them, and of course
they will remain determinable as heretofore by the State courts only, and in
the manner which the State constitutions and laws prescribe. All land causes,
except where claims under the grants of different States come into question,
and all other controversies between the citizens of the same State, unless
where they depend upon positive violations of the articles of union, by acts
of the State legislatures, will belong exclusively to the jurisdiction of the
State tribunals. Add to this, that admiralty causes, and almost all those
which are of equity jurisdiction, are determinable under our own government
without the intervention of a jury, and the inference from the whole will be,
that this institution, as it exists with us at present, cannot possibly be
affected to any great extent by the proposed alteration in our system of
government.
12 The friends and adversaries of the plan of the
convention, if they agree in nothing else, concur at least in the value they
set upon the trial by jury; or if there is any difference between them it
consists in this: the former regard it as a valuable safeguard to liberty; the
latter represent it as the very palladium of free government. For my own part,
the more the operation of the institution has fallen under my observation, the
more reason I have discovered for holding it in high estimation; and it would
be altogether superfluous to examine to what extent it deserves to be esteemed
useful or essential in a representative republic, or how much more merit it
may be entitled to, as a defense against the oppressions of an hereditary
monarch, than as a barrier to the tyranny of popular magistrates in a popular
government. Discussions of this kind would be more curious than beneficial, as
all are satisfied of the utility of the institution, and of its friendly
aspect to liberty. But I must acknowledge that I cannot readily discern the
inseparable connection between the existence of liberty, and the trial by jury
in civil cases. Arbitrary impeachments, arbitrary methods of prosecuting
pretended offenses, and arbitrary punishments upon arbitrary convictions, have
ever appeared to me to be the great engines of judicial despotism; and these
have all relation to criminal proceedings. The trial by jury in criminal
cases, aided by the habeas corpus act, seems therefore to be alone concerned
in the question. And both of these are provided for, in the most ample manner,
in the plan of the convention.
13 It has been observed, that trial by jury is a
safeguard against an oppressive exercise of the power of taxation. This
observation deserves to be canvassed.
14 It is evident that it can have no influence upon the
legislature, in regard to the amount of taxes to be laid, to the objects upon
which they are to be imposed, or to the rule by which they are to be
apportioned. If it can have any influence, therefore, it must be upon the mode
of collection, and the conduct of the officers intrusted with the execution of
the revenue laws.
15 As to the mode of collection in this State, under our
own Constitution, the trial by jury is in most cases out of use. The taxes are
usually levied by the more summary proceeding of distress and sale, as in
cases of rent. And it is acknowledged on all hands, that this is essential to
the efficacy of the revenue laws. The dilatory course of a trial at law to
recover the taxes imposed on individuals, would neither suit the exigencies of
the public nor promote the convenience of the citizens. It would often
occasion an accumulation of costs, more burdensome than the original sum of
the tax to be levied.
16 And as to the conduct of the officers of the revenue,
the provision in favor of trial by jury in criminal cases, will afford the
security aimed at. Wilful abuses of a public authority, to the oppression of
the subject, and every species of official extortion, are offenses against the
government, for which the persons who commit them may be indicted and punished
according to the circumstances of the case.
17 The excellence of the trial by jury in civil cases
appears to depend on circumstances foreign to the preservation of liberty. The
strongest argument in its favor is, that it is a security against corruption.
As there is always more time and better opportunity to tamper with a standing
body of magistrates than with a jury summoned for the occasion, there is room
to suppose that a corrupt influence would more easily find its way to the
former than to the latter. The force of this consideration is, however,
diminished by others. The sheriff, who is the summoner of ordinary juries, and
the clerks of courts, who have the nomination of special juries, are
themselves standing officers, and, acting individually, may be supposed more
accessible to the touch of corruption than the judges, who are a collective
body. It is not difficult to see, that it would be in the power of those
officers to select jurors who would serve the purpose of the party as well as
a corrupted bench. In the next place, it may fairly be supposed, that there
would be less difficulty in gaining some of the jurors promiscuously taken
from the public mass, than in gaining men who had been chosen by the
government for their probity and good character. But making every deduction
for these considerations, the trial by jury must still be a valuable check
upon corruption. It greatly multiplies the impediments to its success. As
matters now stand, it would be necessary to corrupt both court and jury; for
where the jury have gone evidently wrong, the court will generally grant a new
trial, and it would be in most cases of little use to practice upon the jury,
unless the court could be likewise gained. Here then is a double security; and
it will readily be perceived that this complicated agency tends to preserve
the purity of both institutions. By increasing the obstacles to success, it
discourages attempts to seduce the integrity of either. The temptations to
prostitution which the judges might have to surmount, must certainly be much
fewer, while the co-operation of a jury is necessary, than they might be, if
they had themselves the exclusive determination of all causes.
18 Notwithstanding, therefore, the doubts I have
expressed, as to the essentiality of trial by jury in civil cases to liberty,
I admit that it is in most cases, under proper regulations, an excellent
method of determining questions of property; and that on this account alone it
would be entitled to a constitutional provision in its favor if it were
possible to fix the limits within which it ought to be comprehended. There is,
however, in all cases, great difficulty in this; and men not blinded by
enthusiasm must be sensible that in a federal government, which is a
composition of societies whose ideas and institutions in relation to the
matter materially vary from each other, that difficulty must be not a little
augmented. For my own part, at every new view I take of the subject, I become
more convinced of the reality of the obstacles which, we are authoritatively
informed, prevented the insertion of a provision on this head in the plan of
the convention.
19 The great difference between the limits of the jury
trial in different States is not generally understood; and as it must have
considerable influence on the sentence we ought to pass upon the omission
complained of in regard to this point, an explanation of it is necessary. In
this State, our judicial establishments resemble, more nearly than in any
other, those of Great Britain. We have courts of common law, courts of
probates (analogous in certain matters to the spiritual courts in England), a
court of admiralty and a court of chancery. In the courts of common law only,
the trial by jury prevails, and this with some exceptions. In all the others a
single judge presides, and proceeds in general either according to the course
of the canon or civil law, without the aid of a jury.[1] In New Jersey, there
is a court of chancery which proceeds like ours, but neither courts of
admiralty nor of probates, in the sense in which these last are established
with us. In that State the courts of common law have the cognizance of those
causes which with us are determinable in the courts of admiralty and of
probates, and of course the jury trial is more extensive in New Jersey than in
New York. In Pennsylvania, this is perhaps still more the case, for there is
no court of chancery in that State, and its common-law courts have equity
jurisdiction. It has a court of admiralty, but none of probates, at least on
the plan of ours. Delaware has in these respects imitated Pennsylvania.
Maryland approaches more nearly to New York, as does also Virginia, except
that the latter has a plurality of chancellors. North Carolina bears most
affinity to Pennsylvania; South Carolina to Virginia. I believe, however, that
in some of those States which have distinct courts of admiralty, the causes
depending in them are triable by juries. In Georgia there are none but
common-law courts, and an appeal of course lies from the verdict of one jury
to another, which is called a special jury, and for which a particular mode of
appointment is marked out. In Connecticut, they have no distinct courts either
of chancery or of admiralty, and their courts of probates have no jurisdiction
of causes. Their common-law courts have admiralty and, to a certain extent,
equity jurisdiction. In cases of importance, their General Assembly is the
only court of chancery. In Connecticut, therefore, the trial by jury extends
in practice further than in any other State yet mentioned. Rhode Island is, I
believe, in this particular, pretty much in the situation of Connecticut.
Massachusetts and New Hampshire, in regard to the blending of law, equity, and
admiralty jurisdictions, are in a similar predicament. In the four Eastern
States, the trial by jury not only stands upon a broader foundation than in
the other States, but it is attended with a peculiarity unknown, in its full
extent, to any of them. There is an appeal of course from one jury to another,
till there have been two verdicts out of three on one side.
20 From this sketch it appears that there is a material
diversity, as well in the modification as in the extent of the institution of
trial by jury in civil cases, in the several States; and from this fact these
obvious reflections flow: first, that no general rule could have been fixed
upon by the convention which would have corresponded with the circumstances of
all the States; and secondly, that more or at least as much might have been
hazarded by taking the system of any one State for a standard, as by omitting
a provision altogether and leaving the matter, as has been done, to
legislative regulation.
21 The propositions which have been made for supplying
the omission have rather served to illustrate than to obviate the difficulty
of the thing. The minority of Pennsylvania have proposed this mode of
expression for the purpose -- "Trial by jury shall be as heretofore"
-- and this I maintain would be senseless and nugatory. The United States, in
their united or collective capacity, are the OBJECT to which all general
provisions in the Constitution must necessarily be construed to refer. Now it
is evident that though trial by jury, with various limitations, is known in
each State individually, yet in the United States, as such, it is at this time
altogether unknown, because the present federal government has no judiciary
power whatever; and consequently there is no proper antecedent or previous
establishment to which the term heretofore could relate. It would therefore be
destitute of a precise meaning, and inoperative from its uncertainty.
22 As, on the one hand, the form of the provision would
not fulfil the intent of its proposers, so, on the other, if I apprehend that
intent rightly, it would be in itself inexpedient. I presume it to be, that
causes in the federal courts should be tried by jury, if, in the State where
the courts sat, that mode of trial would obtain in a similar case in the State
courts; that is to say, admiralty causes should be tried in Connecticut by a
jury, in New York without one. The capricious operation of so dissimilar a
method of trial in the same cases, under the same government, is of itself
sufficient to indispose every wellregulated judgment towards it. Whether the
cause should be tried with or without a jury, would depend, in a great number
of cases, on the accidental situation of the court and parties.
23 But this is not, in my estimation, the greatest
objection. I feel a deep and deliberate conviction that there are many cases
in which the trial by jury is an ineligible one. I think it so particularly in
cases which concern the public peace with foreign nations -- that is, in most
cases where the question turns wholly on the laws of nations. Of this nature,
among others, are all prize causes. Juries cannot be supposed competent to
investigations that require a thorough knowledge of the laws and usages of
nations; and they will sometimes be under the influence of impressions which
will not suffer them to pay sufficient regard to those considerations of
public policy which ought to guide their inquiries. There would of course be
always danger that the rights of other nations might be infringed by their
decisions, so as to afford occasions of reprisal and war. Though the proper
province of juries be to determine matters of fact, yet in most cases legal
consequences are complicated with fact in such a manner as to render a
separation impracticable.
24 It will add great weight to this remark, in relation
to prize causes, to mention that the method of determining them has been
thought worthy of particular regulation in various treaties between different
powers of Europe, and that, pursuant to such treaties, they are determinable
in Great Britain, in the last resort, before the king himself, in his privy
council, where the fact, as well as the law, undergoes a re-examination. This
alone demonstrates the impolicy of inserting a fundamental provision in the
Constitution which would make the State systems a standard for the national
government in the article under consideration, and the danger of encumbering
the government with any constitutional provisions the propriety of which is
not indisputable.
25 My convictions are equally strong that great
advantages result from the separation of the equity from the law jurisdiction,
and that the causes which belong to the former would be improperly committed
to juries. The great and primary use of a court of equity is to give relief in
extraordinary cases, which are exceptions[2] to general rules. To unite the
jurisdiction of such cases with the ordinary jurisdiction, must have a
tendency to unsettle the general rules, and to subject every case that arises
to a special determination; while a separation of the one from the other has
the contrary effect of rendering one a sentinel over the other, and of keeping
each within the expedient limits. Besides this, the circumstances that
constitute cases proper for courts of equity are in many instances so nice and
intricate, that they are incompatible with the genius of trials by jury. They
require often such long, deliberate, and critical investigation as would be
impracticable to men called from their occupations, and obliged to decide
before they were permitted to return to them. The simplicity and expedition
which form the distinguishing characters of this mode of trial require that
the matter to be decided should be reduced to some single and obvious point;
while the litigations usual in chancery frequently comprehend a long train of
minute and independent particulars.
26 It is true that the separation of the equity from the
legal jurisdiction is peculiar to the English system of jurisprudence: which
is the model that has been followed in several of the States. But it is
equally true that the trial by jury has been unknown in every case in which
they have been united. And the separation is essential to the preservation of
that institution in its pristine purity. The nature of a court of equity will
readily permit the extension of its jurisdiction to matters of law; but it is
not a little to be suspected, that the attempt to extend the jurisdiction of
the courts of law to matters of equity will not only be unproductive of the
advantages which may be derived from courts of chancery, on the plan upon
which they are established in this State, but will tend gradually to change
the nature of the courts of law, and to undermine the trial by jury, by
introducing questions too complicated for a decision in that mode.
27 These appeared to be conclusive reasons against
incorporating the systems of all the States, in the formation of the national
judiciary, according to what may be conjectured to have been the attempt of
the Pennsylvania minority. Let us now examine how far the proposition of
Massachusetts is calculated to remedy the supposed defect.
28 It is in this form: "In civil actions between
citizens of different States, every issue of fact, arising in actions at
common law, may be tried by a jury if the parties, or either of them request
it."
29 This, at best, is a proposition confined to one
description of causes; and the inference is fair, either that the
Massachusetts convention considered that as the only class of federal causes,
in which the trial by jury would be proper; or that if desirous of a more
extensive provision, they found it impracticable to devise one which would
properly answer the end. If the first, the omission of a regulation respecting
so partial an object can never be considered as a material imperfection in the
system. If the last, it affords a strong corroboration of the extreme
difficulty of the thing.
30 But this is not all: if we advert to the observations
already made respecting the courts that subsist in the several States of the
Union, and the different powers exercised by them, it will appear that there
are no expressions more vague and indeterminate than those which have been
employed to characterize that species of causes which it is intended shall be
entitled to a trial by jury. In this State, the boundaries between actions at
common law and actions of equitable jurisdiction, are ascertained in
conformity to the rules which prevail in England upon that subject. In many of
the other States the boundaries are less precise. In some of them every cause
is to be tried in a court of common law, and upon that foundation every action
may be considered as an action at common law, to be determined by a jury, if
the parties, or either of them, choose it. Hence the same irregularity and
confusion would be introduced by a compliance with this proposition, that I
have already noticed as resulting from the regulation proposed by the
Pennsylvania minority. In one State a cause would receive its determination
from a jury, if the parties, or either of them, requested it; but in another
State, a cause exactly similar to the other, must be decided without the
intervention of a jury, because the State judicatories varied as to common-law
jurisdiction.
31 It is obvious, therefore, that the Massachusetts
proposition, upon this subject cannot operate as a general regulation, until
some uniform plan, with respect to the limits of common-law and equitable
jurisdictions, shall be adopted by the different States. To devise a plan of
that kind is a task arduous in itself, and which it would require much time
and reflection to mature. It would be extremely difficult, if not impossible,
to suggest any general regulation that would be acceptable to all the States
in the Union, or that would perfectly quadrate with the several State
institutions.
32 It may be asked, Why could not a reference have been
made to the constitution of this State, taking that, which is allowed by me to
be a good one, as a standard for the United States? I answer that it is not
very probable the other States would entertain the same opinion of our
institutions as we do ourselves. It is natural to suppose that they are
hitherto more attached to their own, and that each would struggle for the
preference. If the plan of taking one State as a model for the whole had been
thought of in the convention, it is to be presumed that the adoption of it in
that body would have been rendered difficult by the predilection of each
representation in favor of its own government; and it must be uncertain which
of the States would have been taken as the model. It has been shown that many
of them would be improper ones. And I leave it to conjecture, whether, under
all circumstances, it is most likely that New York, or some other State, would
have been preferred. But admit that a judicious selection could have been
effected in the convention, still there would have been great danger of
jealousy and disgust in the other States, at the partiality which had been
shown to the institutions of one. The enemies of the plan would have been
furnished with a fine pretext for raising a host of local prejudices against
it, which perhaps might have hazarded, in no inconsiderable degree, its final
establishment.
33 To avoid the embarrassments of a definition of the
cases which the trial by jury ought to embrace, it is sometimes suggested by
men of enthusiastic tempers, that a provision might have been inserted for
establishing it in all cases whatsoever. For this I believe, no precedent is
to be found in any member of the Union; and the considerations which have been
stated in discussing the proposition of the minority of Pennsylvania, must
satisfy every sober mind that the establishment of the trial by jury in all
cases would have been an unpardonable error in the plan.
34 In short, the more it is considered the more arduous
will appear the task of fashioning a provision in such a form as not to
express too little to answer the purpose, or too much to be advisable; or
which might not have opened other sources of opposition to the great and
essential object of introducing a firm national government.
35 I cannot but persuade myself, on the other hand, that
the different lights in which the subject has been placed in the course of
these observations, will go far towards removing in candid minds the
apprehensions they may have entertained on the point. They have tended to show
that the security of liberty is materially concerned only in the trial by jury
in criminal cases, which is provided for in the most ample manner in the plan
of the convention; that even in far the greatest proportion of civil cases,
and those in which the great body of the community is interested, that mode of
trial will remain in its full force, as established in the State
constitutions, untouched and unaffected by the plan of the convention; that it
is in no case abolished[3] by that plan; and that there are great if not
insurmountable difficulties in the way of making any precise and proper
provision for it in a Constitution for the United States.
36 The best judges of the matter will be the least
anxious for a constitutional establishment of the trial by jury in civil
cases, and will be the most ready to admit that the changes which are
continually happening in the affairs of society may render a different mode of
determining questions of property preferable in many cases in which that mode
of trial now prevails. For my part, I acknowledge myself to be convinced that
even in this State it might be advantageously extended to some cases to which
it does not at present apply, and might as advantageously be abridged in
others. It is conceded by all reasonable men that it ought not to obtain in
all cases. The examples of innovations which contract its ancient limits, as
well in these States as in Great Britain, afford a strong presumption that its
former extent has been found inconvenient, and give room to suppose that
future experience may discover the propriety and utility of other exceptions.
I suspect it to be impossible in the nature of the thing to fix the salutary
point at which the operation of the institution ought to stop, and this is
with me a strong argument for leaving the matter to the discretion of the
legislature.
37 This is now clearly understood to be the case in
Great Britain, and it is equally so in the State of Connecticut; and yet it
may be safely affirmed that more numerous encroachments have been made upon
the trial by jury in this State since the Revolution, though provided for by a
positive article of our constitution, than has happened in the same time
either in Connecticut or Great Britain. It may be added that these
encroachments have generally originated with the men who endeavor to persuade
the people they are the warmest defenders of popular liberty, but who have
rarely suffered constitutional obstacles to arrest them in a favorite career.
The truth is that the general GENIUS of a government is all that can be
substantially relied upon for permanent effects. Particular provisions, though
not altogether useless, have far less virtue and efficacy than are commonly
ascribed to them; and the want of them will never be, with men of sound
discernment, a decisive objection to any plan which exhibits the leading
characters of a good government.
38 It certainly sounds not a little harsh and
extraordinary to affirm that there is no security for liberty in a
Constitution which expressly establishes the trial by jury in criminal cases,
because it does not do it in civil also; while it is a notorious fact that
Connecticut, which has been always regarded as the most popular State in the
Union, can boast of no constitutional provision for either.
PUBLIUS
1. It has been erroneously insinuated. with regard to
the court of chancery, that this court generally tries disputed facts by a
jury. The truth is, that references to a jury in that court rarely happen, and
are in no case necessary but where the validity of a devise of land comes into
question.
2. It is true that the principles by which that
relief is governed are now reduced to a regular system; but it is not the less
true that they are in the main applicable to SPECIAL circumstances, which form
exceptions to general rules.
3. Vide No. 81, in which the supposition of its being
abolished by the appellate jurisdiction in matters of fact being vested in the
Supreme Court, is examined and refuted.
FEDERALIST No. 84
Certain General and Miscellaneous
Objections to the Constitution Considered and
Answered From McLean's Edition, New York.
Wednesday, May 28, 1788
HAMILTON
To the People of the State of New York:
IN THE course of the foregoing review of the
Constitution, I have taken notice of, and endeavored to answer most of the
objections which have appeared against it. There, however, remain a few which
either did not fall naturally under any particular head or were forgotten in
their proper places. These shall now be discussed; but as the subject has been
drawn into great length, I shall so far consult brevity as to comprise all my
observations on these miscellaneous points in a single paper.
2 The most considerable of the remaining objections is
that the plan of the convention contains no bill of rights. Among other
answers given to this, it has been upon different occasions remarked that the
constitutions of several of the States are in a similar predicament. I add
that New York is of the number. And yet the opposers of the new system, in
this State, who profess an unlimited admiration for its constitution, are
among the most intemperate partisans of a bill of rights. To justify their
zeal in this matter, they allege two things: one is that, though the
constitution of New York has no bill of rights prefixed to it, yet it
contains, in the body of it, various provisions in favor of particular
privileges and rights, which, in substance amount to the same thing; the other
is, that the Constitution adopts, in their full extent, the common and statute
law of Great Britain, by which many other rights, not expressed in it, are
equally secured.
3 To the first I answer, that the Constitution proposed
by the convention contains, as well as the constitution of this State, a
number of such provisions.
4 Independent of those which relate to the structure of
the government, we find the following: Article 1, section 3, clause 7 --
"Judgment in cases of impeachment shall not extend further than to
removal from office, and disqualification to hold and enjoy any office of
honor, trust, or profit under the United States; but the party convicted
shall, nevertheless, be liable and subject to indictment, trial, judgment, and
punishment according to law." Section 9, of the same article, clause 2 --
"The privilege of the writ of habeas corpus shall not be suspended,
unless when in cases of rebellion or invasion the public safety may require
it." Clause 3 -- "No bill of attainder or ex-post-facto law shall be
passed." Clause 7 -- "No title of nobility shall be granted by the
United States; and no person holding any office of profit or trust under them,
shall, without the consent of the Congress, accept of any present, emolument,
office, or title of any kind whatever, from any king, prince, or foreign
state." Article 3, section 2, clause 3 -- "The trial of all crimes,
except in cases of impeachment, shall be by jury; and such trial shall be held
in the State where the said crimes shall have been committed; but when not
committed within any State, the trial shall be at such place or places as the
Congress may by law have directed." Section 3, of the same article --
"Treason against the United States shall consist only in levying war
against them, or in adhering to their enemies, giving them aid and comfort. No
person shall be convicted of treason, unless on the testimony of two witnesses
to the same overt act, or on confession in open court." And clause 3, of
the same section -- "The Congress shall have power to declare the
punishment of treason; but no attainder of treason shall work corruption of
blood, or forfeiture, except during the life of the person attainted."
5 It may well be a question, whether these are not,
upon the whole, of equal importance with any which are to be found in the
constitution of this State. The establishment of the writ of habeas corpus,
the prohibition of ex post facto laws, and of TITLES OF NOBILITY, to which we
have no corresponding provision in our Constitution, are perhaps greater
securities to liberty and republicanism than any it contains. The creation of
crimes after the commission of the fact, or, in other words, the subjecting of
men to punishment for things which, when they were done, were breaches of no
law, and the practice of arbitrary imprisonments, have been, in all ages, the
favorite and most formidable instruments of tyranny. The observations of the
judicious Blackstone,[1] in reference to the latter, are well worthy of
recital: "To bereave a man of life, [says he] or by violence to
confiscate his estate, without accusation or trial, would be so gross and
notorious an act of despotism, as must at once convey the alarm of tyranny
throughout the whole nation; but confinement of the person, by secretly
hurrying him to jail, where his sufferings are unknown or forgotten, is a less
public, a less striking, and therefore a more dangerous engine of arbitrary
government." And as a remedy for this fatal evil he is everywhere
peculiarly emphatical in his encomiums on the habeas corpus act, which in one
place he calls "the BULWARK of the British Constitution."[2]
6 Nothing need be said to illustrate the importance of
the prohibition of titles of nobility. This may truly be denominated the
corner-stone of republican government; for so long as they are excluded, there
can never be serious danger that the government will be any other than that of
the people.
7 To the second that is, to the pretended establishment
of the common and state law by the Constitution, I answer, that they are
expressly made subject "to such alterations and provisions as the
legislature shall from time to time make concerning the same." They are
therefore at any moment liable to repeal by the ordinary legislative power,
and of course have no constitutional sanction. The only use of the declaration
was to recognize the ancient law and to remove doubts which might have been
occasioned by the Revolution. This consequently can be considered as no part
of a declaration of rights, which under our constitutions must be intended as
limitations of the power of the government itself.
8 It has been several times truly remarked that bills
of rights are, in their origin, stipulations between kings and their subjects,
abridgements of prerogative in favor of privilege, reservations of rights not
surrendered to the prince. Such was MAGNA CHARTA, obtained by the barons,
sword in hand, from King John. Such were the subsequent confirmations of that
charter by succeeding princes. Such was the Petition of Right assented to by
Charles I., in the beginning of his reign. Such, also, was the Declaration of
Right presented by the Lords and Commons to the Prince of Orange in 1688, and
afterwards thrown into the form of an act of parliament called the Bill of
Rights. It is evident, therefore, that, according to their primitive
signification, they have no application to constitutions professedly founded
upon the power of the people, and executed by their immediate representatives
and servants. Here, in strictness, the people surrender nothing; and as they
retain every thing they have no need of particular reservations. "WE, THE
PEOPLE of the United States, to secure the blessings of liberty to ourselves
and our posterity, do ordain and establish this Constitution for the United
States of America." Here is a better recognition of popular rights, than
volumes of those aphorisms which make the principal figure in several of our
State bills of rights, and which would sound much better in a treatise of
ethics than in a constitution of government.
9 But a minute detail of particular rights is certainly
far less applicable to a Constitution like that under consideration, which is
merely intended to regulate the general political interests of the nation,
than to a constitution which has the regulation of every species of personal
and private concerns. If, therefore, the loud clamors against the plan of the
convention, on this score, are well founded, no epithets of reprobation will
be too strong for the constitution of this State. But the truth is, that both
of them contain all which, in relation to their objects, is reasonably to be
desired.
10 I go further, and affirm that bills of rights, in the
sense and to the extent in which they are contended for, are not only
unnecessary in the proposed Constitution, but would even be dangerous. They
would contain various exceptions to powers not granted; and, on this very
account, would afford a colorable pretext to claim more than were granted. For
why declare that things shall not be done which there is no power to do? Why,
for instance, should it be said that the liberty of the press shall not be
restrained, when no power is given by which restrictions may be imposed? I
will not contend that such a provision would confer a regulating power; but it
is evident that it would furnish, to men disposed to usurp, a plausible
pretense for claiming that power. They might urge with a semblance of reason,
that the Constitution ought not to be charged with the absurdity of providing
against the abuse of an authority which was not given, and that the provision
against restraining the liberty of the press afforded a clear implication,
that a power to prescribe proper regulations concerning it was intended to be
vested in the national government. This may serve as a specimen of the
numerous handles which would be given to the doctrine of constructive powers,
by the indulgence of an injudicious zeal for bills of rights.
11 On the subject of the liberty of the press, as much
as has been said, I cannot forbear adding a remark or two: in the first place,
I observe, that there is not a syllable concerning it in the constitution of
this State; in the next, I contend, that whatever has been said about it in
that of any other State, amounts to nothing. What signifies a declaration,
that "the liberty of the press shall be inviolably preserved"? What
is the liberty of the press? Who can give it any definition which would not
leave the utmost latitude for evasion? I hold it to be impracticable; and from
this I infer, that its security, whatever fine declarations may be inserted in
any constitution respecting it, must altogether depend on public opinion, and
on the general spirit of the people and of the government.[3] And here, after
all, as is intimated upon another occasion, must we seek for the only solid
basis of all our rights.
12 There remains but one other view of this matter to
conclude the point. The truth is, after all the declamations we have heard,
that the Constitution is itself, in every rational sense, and to every useful
purpose, A BILL OF RIGHTS. The several bills of rights in Great Britain form
its Constitution, and conversely the constitution of each State is its bill of
rights. And the proposed Constitution, if adopted, will be the bill of rights
of the Union. Is it one object of a bill of rights to declare and specify the
political privileges of the citizens in the structure and administration of
the government? This is done in the most ample and precise manner in the plan
of the convention; comprehending various precautions for the public security,
which are not to be found in any of the State constitutions. Is another object
of a bill of rights to define certain immunities and modes of proceeding,
which are relative to personal and private concerns? This we have seen has
also been attended to, in a variety of cases, in the same plan. Adverting
therefore to the substantial meaning of a bill of rights, it is absurd to
allege that it is not to be found in the work of the convention. It may be
said that it does not go far enough, though it will not be easy to make this
appear; but it can with no propriety be contended that there is no such thing.
It certainly must be immaterial what mode is observed as to the order of
declaring the rights of the citizens, if they are to be found in any part of
the instrument which establishes the government. And hence it must be
apparent, that much of what has been said on this subject rests merely on
verbal and nominal distinctions, entirely foreign from the substance of the
thing.
13 Another objection which has been made, and which,
from the frequency of its repetition, it is to be presumed is relied on, is of
this nature: "It is improper [say the objectors] to confer such large
powers, as are proposed, upon the national government, because the seat of
that government must of necessity be too remote from many of the States to
admit of a proper knowledge on the part of the constituent, of the conduct of
the representative body." This argument, if it proves any thing, proves
that there ought to be no general government whatever. For the powers which,
it seems to be agreed on all hands, ought to be vested in the Union, cannot be
safely intrusted to a body which is not under every requisite control. But
there are satisfactory reasons to show that the objection is in reality not
well founded. There is in most of the arguments which relate to distance a
palpable illusion of the imagination. What are the sources of information by
which the people in Montgomery County must regulate their judgment of the
conduct of their representatives in the State legislature? Of personal
observation they can have no benefit. This is confined to the citizens on the
spot. They must therefore depend on the information of intelligent men, in
whom they confide; and how must these men obtain their information? Evidently
from the complexion of public measures, from the public prints, from
correspondences with theirrepresentatives, and with other persons who reside
at the place of their deliberations. This does not apply to Montgomery County
only, but to all the counties at any considerable distance from the seat of
government.
14 It is equally evident that the same sources of
information would be open to the people in relation to the conduct of their
representatives in the general government, and the impediments to a prompt
communication which distance may be supposed to create, will be overbalanced
by the effects of the vigilance of the State governments. The executive and
legislative bodies of each State will be so many sentinels over the persons
employed in every department of the national administration; and as it will be
in their power to adopt and pursue a regular and effectual system of
intelligence, they can never be at a loss to know the behavior of those who
represent their constituents in the national councils, and can readily
communicate the same knowledge to the people. Their disposition to apprise the
community of whatever may prejudice its interests from another quarter, may be
relied upon, if it were only from the rivalship of power. And we may conclude
with the fullest assurance that the people, through that channel, will be
better informed of the conduct of their national representatives, than they
can be by any means they now possess of that of their State representatives.
15 It ought also to be remembered that the citizens who
inhabit the country at and near the seat of government will, in all questions
that affect the general liberty and prosperity, have the same interest with
those who are at a distance, and that they will stand ready to sound the alarm
when necessary, and to point out the actors in any pernicious project. The
public papers will be expeditious messengers of intelligence to the most
remote inhabitants of the Union.
16 Among the many curious objections which have appeared
against the proposed Constitution, the most extraordinary and the least
colorable is derived from the want of some provision respecting the debts due
to the United States. This has been represented as a tacit relinquishment of
those debts, and as a wicked contrivance to screen public defaulters. The
newspapers have teemed with the most inflammatory railings on this head; yet
there is nothing clearer than that the suggestion is entirely void of
foundation, the offspring of extreme ignorance or extreme dishonesty. In
addition to the remarks I have made upon the subject in another place, I shall
only observe that as it is a plain dictate of common-sense, so it is also an
established doctrine of political law, that "States neither lose any of
their rights, nor are discharged from any of their obligations, by a change in
the form of their civil government."[4]
17 The last objection of any consequence, which I at
present recollect, turns upon the article of expense. If it were even true,
that the adoption of the proposed government would occasion a considerable
increase of expense, it would be an objection that ought to have no weight
against the plan.
18 The great bulk of the citizens of America are with
reason convinced, that Union is the basis of their political happiness. Men of
sense of all parties now, with few exceptions, agree that it cannot be
preserved under the present system, nor without radical alterations; that new
and extensive powers ought to be granted to the national head, and that these
require a different organization of the federal government -- a single body
being an unsafe depositary of such ample authorities. In conceding all this,
the question of expense must be given up; for it is impossible, with any
degree of safety, to narrow the foundation upon which the system is to stand.
The two branches of the legislature are, in the first instance, to consist of
only sixty-five persons, which is the same number of which Congress, under the
existing Confederation, may be composed. It is true that this number is
intended to be increased; but this is to keep pace with the progress of the
population and resources of the country. It is evident that a less number
would, even in the first instance, have been unsafe, and that a continuance of
the present number would, in a more advanced stage of population, be a very
inadequate representation of the people.
Whence is the dreaded augmentation of expense to
spring? One source indicated, is the multiplication of offices under the new
government. Let us examine this a little.
19 It is evident that the principal departments of the
administration under the present government, are the same which will be
required under the new. There are now a Secretary of War, a Secretary of
Foreign Affairs, a Secretary for Domestic Affairs, a Board of Treasury,
consisting of three persons, a Treasurer, assistants, clerks, etc. These
officers are indispensable under any system, and will suffice under the new as
well as the old. As to ambassadors and other ministers and agents in foreign
countries, the proposed Constitution can make no other difference than to
render their characters, where they reside, more respectable, and their
services more useful. As to persons to be employed in the collection of the
revenues, it is unquestionably true that these will form a very considerable
addition to the number of federal officers; but it will not follow that this
will occasion an increase of public expense. It will be in most cases nothing
more than an exchange of State for national officers. In the collection of all
duties, for instance, the persons employed will be wholly of the latter
description. The States individually will stand in no need of any for this
purpose. What difference can it make in point of expense to pay officers of
the customs appointed by the State or by the United States? There is no good
reason to suppose that either the number or the salaries of the latter will be
greater than those of the former.
20 Where then are we to seek for those additional
articles of expense which are to swell the account to the enormous size that
has been represented to us? The chief item which occurs to me respects the
support of the judges of the United States. I do not add the President,
because there is now a president of Congress, whose expenses may not be far,
if any thing, short of those which will be incurred on account of the
President of the United States. The support of the judges will clearly be an
extra expense, but to what extent will depend on the particular plan which may
be adopted in regard to this matter. But upon no reasonable plan can it amount
to a sum which will be an object of material consequence.
21 Let us now see what there is to counterbalance any
extra expense that may attend the establishment of the proposed government.
The first thing which presents itself is that a great part of the business
which now keeps Congress sitting through the year will be transacted by the
President. Even the management of foreign negotiations will naturally devolve
upon him, according to general principles concerted with the Senate, and
subject to their final concurrence. Hence it is evident that a portion of the
year will suffice for the session of both the Senate and the House of
Representatives; we may suppose about a fourth for the latter and a third, or
perhaps half, for the former. The extra business of treaties and appointments
may give this extra occupation to the Senate. From this circumstance we may
infer that, until the House of Representatives shall be increased greatly
beyond its present number, there will be a considerable saving of expense from
the difference between the constant session of the present and the temporary
session of the future Congress.
22 But there is another circumstance of great importance
in the view of economy. The business of the United States has hitherto
occupied the State legislatures, as well as Congress. The latter has made
requisitions which the former have had to provide for. Hence it has happened
that the sessions of the State legislatures have been protracted greatly
beyond what was necessary for the execution of the mere local business of the
States. More than half their time has been frequently employed in matters
which related to the United States. Now the members who compose the
legislatures of the several States amount to two thousand and upwards, which
number has hitherto performed what under the new system will be done in the
first instance by sixty-five persons, and probably at no future period by
above a fourth or fifth of that number. The Congress under the proposed
government will do all the business of the United States themselves, without
the intervention of the State legislatures, who thenceforth will have only to
attend to the affairs of their particular States, and will not have to sit in
any proportion as long as they have heretofore done. This difference in the
time of the sessions of the State legislatures will be clear gain, and will
alone form an article of saving, which may be regarded as an equivalent for
any additional objects of expense that may be occasioned by the adoption of
the new system.
23 The result from these observations is that the
sources of additional expense from the establishment of the proposed
Constitution are much fewer than may have been imagined; that they are
counterbalanced by considerable objects of saving; and that while it is
questionable on which side the scale will preponderate, it is certain that a
government less expensive would be incompetent to the purposes of the Union.
PUBLIUS
1. Vide Blackstone's Commentaries, Vol. 1, p. 136.
2. Idem, Vol. 4, p. 438.
3. To show that there is a power in the Constitution
by which the liberty of the press may be affected, recourse has been had to
the power of taxation. It is said that duties may be laid upon the
publications so high as to amount to a prohibition. I know not by what logic
it could be maintained, that the declarations in the State constitutions, in
favor of the freedom of the press, would be a constitutional impediment to the
imposition of duties upon publications by the State legislatures. It cannot
certainly be pretended that any degree of duties, however low, would be an
abridgment of the liberty of the press. We know that newspapers are taxed in
Great Britain, and yet it is notorious that the press nowhere enjoys greater
liberty than in that country. And if duties of any kind may be laid without a
violation of that liberty, it is evident that the extent must depend on
legislative discretion, respecting the liberty of the press, will give it no
greater security than it will have without them. The same invasions of it may
be effected under the State constitutions which contain those declarations
through the means of taxation, as under the proposed Constitution, which has
nothing of the kind. It would be quite as significant to declare that
government ought to be free, that taxes ought not to be excessive, etc., as
that the liberty of the press ought not to be restrained.
4. Vide Rutherford's Institutes, Vol. 2, Book II,
Chapter X, Sections XIV and XV. Vide also Grotius, Book II, Chapter IX,
Sections VIII and IX.
FEDERALIST No. 85
Concluding Remarks From MCLEAN's
Edition, New York.
Wednesday, May 28, 1788
HAMILTON
To the People of the State of New York:
ACCORDING to the formal division of the subject of
these papers, announced in my first number, there would appear still to remain
for discussion two points: "the analogy of the proposed government to
your own State constitution," and "the additional security which its
adoption will afford to republican government, to liberty, and to
property." But these heads have been so fully anticipated and exhausted
in the progress of the work, that it would now scarcely be possible to do any
thing more than repeat, in a more dilated form, what has been heretofore said,
which the advanced stage of the question, and the time already spent upon it,
conspire to forbid.
2 It is remarkable, that the resemblance of the plan of
the convention to the act which organizes the government of this State holds,
not less with regard to many of the supposed defects, than to the real
excellences of the former. Among the pretended defects are the re-eligibility
of the Executive, the want of a council, the omission of a formal bill of
rights, the omission of a provision respecting the liberty of the press. These
and several others which have been noted in the course of our inquiries are as
much chargeable on the existing constitution of this State, as on the one
proposed for the Union; and a man must have slender pretensions to
consistency, who can rail at the latter for imperfections which he finds no
difficulty in excusing in the former. Nor indeed can there be a better proof
of the insincerity and affectation of some of the zealous adversaries of the
plan of the convention among us, who profess to be the devoted admirers of the
government under which they live, than the fury with which they have attacked
that plan, for matters in regard to which our own constitution is equally or
perhaps more vulnerable.
3 The additional securities to republican government,
to liberty and to property, to be derived from the adoption of the plan under
consideration, consist chiefly in the restraints which the preservation of the
Union will impose on local factions and insurrections, and on the ambition of
powerful individuals in single States, who may acquire credit and influence
enough, from leaders and favorites, to become the despots of the people; in
the diminution of the opportunities to foreign intrigue, which the dissolution
of the Confederacy would invite and facilitate; in the prevention of extensive
military establishments, which could not fail to grow out of wars between the
States in a disunited situation; in the express guaranty of a republican form
of government to each; in the absolute and universal exclusion of titles of
nobility; and in the precautions against the repetition of those practices on
the part of the State governments which have undermined the foundations of
property and credit, have planted mutual distrust in the breasts of all
classes of citizens, and have occasioned an almost universal prostration of
morals.
4 Thus have I, fellow-citizens, executed the task I had
assigned to myself; with what success, your conduct must determine. I trust at
least you will admit that I have not failed in the assurance I gave you
respecting the spirit with which my endeavors should be conducted. I have
addressed myself purely to your judgments, and have studiously avoided those
asperities which are too apt to disgrace political disputants of all parties,
and which have been not a little provoked by the language and conduct of the
opponents of the Constitution. The charge of a conspiracy against the
liberties of the people, which has been indiscriminately brought against the
advocates of the plan, has something in it too wanton and too malignant, not
to excite the indignation of every man who feels in his own bosom a refutation
of the calumny. The perpetual changes which have been rung upon the wealthy,
the well-born, and the great, have been such as to inspire the disgust of all
sensible men. And the unwarrantable concealments and misrepresentations which
have been in various ways practiced to keep the truth from the public eye,
have been of a nature to demand the reprobation of all honest men. It is not
impossible that these circumstances may have occasionally betrayed me into
intemperances of expression which I did not intend; it is certain that I have
frequently felt a struggle between sensibility and moderation; and if the
former has in some instances prevailed, it must be my excuse that it has been
neither often nor much.
5 Let us now pause and ask ourselves whether, in the
course of these papers, the proposed Constitution has not been satisfactorily
vindicated from the aspersions thrown upon it; and whether it has not been
shown to be worthy of the public approbation, and necessary to the public
safety and prosperity. Every man is bound to answer these questions to
himself, according to the best of his conscience and understanding, and to act
agreeably to the genuine and sober dictates of his judgment. This is a duty
from which nothing can give him a dispensation. 'T is one that he is called
upon, nay, constrained by all the obligations that form the bands of society,
to discharge sincerely and honestly. No partial motive, no particular
interest, no pride of opinion, no temporary passion or prejudice, will justify
to himself, to his country, or to his posterity, an improper election of the
part he is to act. Let him beware of an obstinate adherence to party; let him
reflect that the object upon which he is to decide is not a particular
interest of the community, but the very existence of the nation; and let him
remember that a majority of America has already given its sanction to the plan
which he is to approve or reject.
6 I shall not dissemble that I feel an entire
confidence in the arguments which recommend the proposed system to your
adoption, and that I am unable to discern any real force in those by which it
has been opposed. I am persuaded that it is the best which our political
situation, habits, and opinions will admit, and superior to any the revolution
has produced.
7 Concessions on the part of the friends of the plan,
that it has not a claim to absolute perfection, have afforded matter of no
small triumph to its enemies. "Why," say they, "should we adopt
an imperfect thing? Why not amend it and make it perfect before it is
irrevocably established?" This may be plausible enough, but it is only
plausible. In the first place I remark, that the extent of these concessions
has been greatly exaggerated. They have been stated as amounting to an
admission that the plan is radically defective, and that without material
alterations the rights and the interests of the community cannot be safely
confided to it. This, as far as I have understood the meaning of those who
make the concessions, is an entire perversion of their sense. No advocate of
the measure can be found, who will not declare as his sentiment, that the
system, though it may not be perfect in every part, is, upon the whole, a good
one; is the best that the present views and circumstances of the country will
permit; and is such an one as promises every species of security which a
reasonable people can desire.
8 I answer in the next place, that I should esteem it
the extreme of imprudence to prolong the precarious state of our national
affairs, and to expose the Union to the jeopardy of successive experiments, in
the chimerical pursuit of a perfect plan. I never expect to see a perfect work
from imperfect man. The result of the deliberations of all collective bodies
must necessarily be a compound, as well of the errors and prejudices, as of
the good sense and wisdom, of the individuals of whom they are composed. The
compacts which are to embrace thirteen distinct States in a common bond of
amity and union, must as necessarily be a compromise of as many dissimilar
interests and inclinations. How can perfection spring from such materials?
9 The reasons assigned in an excellent little pamphlet
lately published in this city,[1] are unanswerable to show the utter
improbability of assembling a new convention, under circumstances in any
degree so favorable to a happy issue, as those in which the late convention
met, deliberated, and concluded. I will not repeat the arguments there used,
as I presume the production itself has had an extensive circulation. It is
certainly well worthy the perusal of every friend to his country. There is,
however, one point of light in which the subject of amendments still remains
to be considered, and in which it has not yet been exhibited to public view. I
cannot resolve to conclude without first taking a survey of it in this aspect.
10 It appears to me susceptible of absolute
demonstration, that it will be far more easy to obtain subsequent than
previous amendments to the Constitution. The moment an alteration is made in
the present plan, it becomes, to the purpose of adoption, a new one, and must
undergo a new decision of each State. To its complete establishment throughout
the Union, it will therefore require the concurrence of thirteen States. If,
on the contrary, the Constitution proposed should once be ratified by all the
States as it stands, alterations in it may at any time be effected by nine
States. Here, then, the chances are as thirteen to nine[2] in favor of
subsequent amendment, rather than of the original adoption of an entire
system.
11 This is not all. Every Constitution for the United
States must inevitably consist of a great variety of particulars, in which
thirteen independent States are to be accommodated in their interests or
opinions of interest. We may of course expect to see, in any body of men
charged with its original formation, very different combinations of the parts
upon different points. Many of those who form a majority on one question, may
become the minority on a second, and an association dissimilar to either may
constitute the majority on a third. Hence the necessity of moulding and
arranging all the particulars which are to compose the whole, in such a manner
as to satisfy all the parties to the compact; and hence, also, an immense
multiplication of difficulties and casualties in obtaining the collective
assent to a final act. The degree of that multiplication must evidently be in
a ratio to the number of particulars and the number of parties.
12 But every amendment to the Constitution, if once
established, would be a single proposition, and might be brought forward
singly. There would then be no necessity for management or compromise, in
relation to any other point -- no giving nor taking. The will of the requisite
number would at once bring the matter to a decisive issue. And consequently,
whenever nine, or rather ten States, were united in the desire of a particular
amendment, that amendment must infallibly take place. There can, therefore, be
no comparison between the facility of affecting an amendment, and that of
establishing in the first instance a complete Constitution.
13 In opposition to the probability of subsequent
amendments, it has been urged that the persons delegated to the administration
of the national government will always be disinclined to yield up any portion
of the authority of which they were once possessed. For my own part I
acknowledge a thorough conviction that any amendments which may, upon mature
consideration, be thought useful, will be applicable to the organization of
the government, not to the mass of its powers; and on this account alone, I
think there is no weight in the observation just stated. I also think there is
little weight in it on another account. The intrinsic difficulty of governing
THIRTEEN STATES at any rate, independent of calculations upon an ordinary
degree of public spirit and integrity, will, in my opinion constantly impose
on the national rulers the necessity of a spirit of accommodation to the
reasonable expectations of their constituents. But there is yet a further
consideration, which proves beyond the possibility of a doubt, that the
observation is futile. It is this that the national rulers, whenever nine
States concur, will have no option upon the subject. By the fifth article of
the plan, the Congres will be obliged "on the application of the
legislatures of two thirds of the States [which at present amount to nine], to
call a convention for proposing amendments, which shall be valid, to all
intents and purposes, as part of the Constitution, when ratified by the
legislatures of three fourths of the States, or by conventions in three
fourths thereof." The words of this article are peremptory. The Congress
"shall call a convention." Nothing in this particular is left to the
discretion of that body. And of consequence, all the declamation about the
disinclination to a change vanishes in air. Nor however difficult it may be
supposed to unite two thirds or three fourths of the State legislatures, in
amendments which may affect local interests, can there be any room to
apprehend any such difficulty in a union on points which are merely relative
to the general liberty or security of the people. We may safely rely on the
disposition of the State legislatures to erect barriers against the
encroachments of the national authority.
14 If the foregoing argument is a fallacy, certain it is
that I am myself deceived by it, for it is, in my conception, one of those
rare instances in which a political truth can be brought to the test of a
mathematical demonstration. Those who see the matter in the same light with
me, however zealous they may be for amendments, must agree in the propriety of
a previous adoption, as the most direct road to their own object.
15 The zeal for attempts to amend, prior to the
establishment of the Constitution, must abate in every man who is ready to
accede to the truth of the following observations of a writer equally solid
and ingenious: "To balance a large state or society [says he], whether
monarchical or republican, on general laws, is a work of so great difficulty,
that no human genius, however comprehensive, is able, by the mere dint of
reason and reflection, to effect it. The judgments of many must unite in the
work; EXPERIENCE must guide their labor; TIME must bring it to perfection, and
the FEELING of inconveniences must correct the mistakes which they inevitably
fall into in their first trials and experiments."[3] These judicious
reflections contain a lesson of moderation to all the sincere lovers of the
Union, and ought to put them upon their guard against hazarding anarchy, civil
war, a perpetual alienation of the States from each other, and perhaps the
military despotism of a victorious demagogue, in the pursuit of what they are
not likely to obtain, but from TIME and EXPERIENCE. It may be in me a defect
of political fortitude, but I acknowledge that I cannot entertain an equal
tranquillity with those who affect to treat the dangers of a longer
continuance in our present situation as imaginary. A NATION, without a
NATIONAL GOVERNMENT, is, in my view, an awful spectacle. The establishment of
a Constitution, in time of profound peace, by the voluntary ocnsent of a whole
people, is a PRODIGY, to the completion of which I look forward with trembling
anxiety. I can reconcile it to no rules of prudence to let go the hold we now
have, in so arduous an enterprise, upon seven out of the thirteen States, and
after having passed over so considerable a part of the ground, to recommence
the course. I dread the more the consequences of new attempts, because I know
that POWERFUL INDIVIDUALS, in this and in other States, are enemies to a
general national government in every possible shape.
PUBLIUS
1. Entitled "An Address to the People of the
State of New York."
2. It may rather be said TEN, for though two thirds
may set on foot the measure, three fourths must ratify.
3. Hume's Essays, Vol. I, p. 128: "The Rise of
Arts and Sciences." |
