FEDERALIST No. 51
The Structure of the Government Must Furnish the Proper Checks
and Balances Between the Different Departments
For the Independent Journal.
Wednesday, February 6, 1788.
MADISON
To the People of the State of New York:
TO WHAT expedient, then, shall we finally resort, for maintaining in
practice the necessary partition of power among the several departments,
as laid down in the Constitution? The only answer that can be given is,
that as all these exterior provisions are found to be inadequate, the
defect must be supplied, by so contriving the interior structure of the
government as that its several constituent parts may, by their mutual
relations, be the means of keeping each other in their proper places.
Without presuming to undertake a full development of this important
idea, I will hazard a few general observations, which may perhaps place
it in a clearer light, and enable us to form a more correct judgment of
the principles and structure of the government planned by the
convention.
In order to lay a due foundation for that separate and distinct exercise
of the different powers of government, which to a certain extent is
admitted on all hands to be essential to the preservation of liberty, it
is evident that each department should have a will of its own; and
consequently should be so constituted that the members of each should
have as little agency as possible in the appointment of the members of
the others. Were this principle rigorously adhered to, it would require
that all the appointments for the supreme executive, legislative, and
judiciary magistracies should be drawn from the same fountain of
authority, the people, through channels having no communication whatever
with one another. Perhaps such a plan of constructing the several
departments would be less difficult in practice than it may in
contemplation appear. Some difficulties, however, and some additional
expense would attend the execution of it. Some deviations, therefore,
from the principle must be admitted. In the constitution of the
judiciary department in particular, it might be inexpedient to insist
rigorously on the principle: first, because peculiar qualifications
being essential in the members, the primary consideration ought to be to
select that mode of choice which best secures these qualifications;
secondly, because the permanent tenure by which the appointments are
held in that department, must soon destroy all sense of dependence on
the authority conferring them.
It is equally evident, that the members of each department should be as
little dependent as possible on those of the others, for the emoluments
annexed to their offices. Were the executive magistrate, or the judges,
not independent of the legislature in this particular, their
independence in every other would be merely nominal.
But the great security against a gradual concentration of the several
powers in the same department, consists in giving to those who
administer each department the necessary constitutional means and
personal motives to resist encroachments of the others. The provision
for defense must in this, as in all other cases, be made commensurate to
the danger of attack. Ambition must be made to counteract ambition. The
interest of the man must be connected with the constitutional rights of
the place. It may be a reflection on human nature, that such devices
should be necessary to control the abuses of government. But what is
government itself, but the greatest of all reflections on human nature?
If men were angels, no government would be necessary. If angels were to
govern men, neither external nor internal controls on government would
be necessary. In framing a government which is to be administered by men
over men, the great difficulty lies in this: you must first enable the
government to control the governed; and in the next place oblige it to
control itself. A dependence on the people is, no doubt, the primary
control on the government; but experience has taught mankind the
necessity of auxiliary precautions.
This policy of supplying, by opposite and rival interests, the defect of
better motives, might be traced through the whole system of human
affairs, private as well as public. We see it particularly displayed in
all the subordinate distributions of power, where the constant aim is to
divide and arrange the several offices in such a manner as that each may
be a check on the other -- that the private interest of every individual
may be a sentinel over the public rights. These inventions of prudence
cannot be less requisite in the distribution of the supreme powers of
the State.
But it is not possible to give to each department an equal power of
self-defense. In republican government, the legislative authority
necessarily predominates. The remedy for this inconveniency is to divide
the legislature into different branches; and to render them, by
different modes of election and different principles of action, as
little connected with each other as the nature of their common functions
and their common dependence on the society will admit. It may even be
necessary to guard against dangerous encroachments by still further
precautions. As the weight of the legislative authority requires that it
should be thus divided, the weakness of the executive may require, on
the other hand, that it should be fortified. An absolute negative on the
legislature appears, at first view, to be the natural defense with which
the executive magistrate should be armed. But perhaps it would be
neither altogether safe nor alone sufficient. On ordinary occasions it
might not be exerted with the requisite firmness, and on extraordinary
occasions it might be perfidiously abused. May not this defect of an
absolute negative be supplied by some qualified connection between this
weaker department and the weaker branch of the stronger department, by
which the latter may be led to support the constitutional rights of the
former, without being too much detached from the rights of its own
department?
If the principles on which these observations are founded be just, as I
persuade myself they are, and they be applied as a criterion to the
several State constitutions, and to the federal Constitution it will be
found that if the latter does not perfectly correspond with them, the
former are infinitely less able to bear such a test.
There are, moreover, two considerations particularly applicable to the
federal system of America, which place that system in a very interesting
point of view.
First. In a single republic, all the power surrendered by the people is
submitted to the administration of a single government; and the
usurpations are guarded against by a division of the government into
distinct and separate departments. In the compound republic of America,
the power surrendered by the people is first divided between two
distinct governments, and then the portion allotted to each subdivided
among distinct and separate departments. Hence a double security arises
to the rights of the people. The different governments will control each
other, at the same time that each will be controlled by itself.
Second. It is of great importance in a republic not only to guard the
society against the oppression of its rulers, but to guard one part of
the society against the injustice of the other part. Different interests
necessarily exist in different classes of citizens. If a majority be
united by a common interest, the rights of the minority will be
insecure. There are but two methods of providing against this evil: the
one by creating a will in the community independent of the majority --
that is, of the society itself; the other, by comprehending in the
society so many separate descriptions of citizens as will render an
unjust combination of a majority of the whole very improbable, if not
impracticable. The first method prevails in all governments possessing
an hereditary or self-appointed authority. This, at best, is but a
precarious security; because a power independent of the society may as
well espouse the unjust views of the major, as the rightful interests of
the minor party, and may possibly be turned against both parties. The
second method will be exemplified in the federal republic of the United
States. Whilst all authority in it will be derived from and dependent on
the society, the society itself will be broken into so many parts,
interests, and classes of citizens, that the rights of individuals, or
of the minority, will be in little danger from interested combinations
of the majority. In a free government the security for civil rights must
be the same as that for religious rights. It consists in the one case in
the multiplicity of interests, and in the other in the multiplicity of
sects. The degree of security in both cases will depend on the number of
interests and sects; and this may be presumed to depend on the extent of
country and number of people comprehended under the same government.
This view of the subject must particularly recommend a proper federal
system to all the sincere and considerate friends of republican
government, since it shows that in exact proportion as the territory of
the Union may be formed into more circumscribed Confederacies, or States
oppressive combinations of a majority will be facilitated: the best
security, under the republican forms, for the rights of every class of
citizens, will be diminished: and consequently the stability and
independence of some member of the government, the only other security,
must be proportionately increased. Justice is the end of government. It
is the end of civil society. It ever has been and ever will be pursued
until it be obtained, or until liberty be lost in the pursuit. In a
society under the forms of which the stronger faction can readily unite
and oppress the weaker, anarchy may as truly be said to reign as in a
state of nature, where the weaker individual is not secured against the
violence of the stronger; and as, in the latter state, even the stronger
individuals are prompted, by the uncertainty of their condition, to
submit to a government which may protect the weak as well as themselves;
so, in the former state, will the more powerful factions or parties be
gradnally induced, by a like motive, to wish for a government which will
protect all parties, the weaker as well as the more powerful. It can be
little doubted that if the State of Rhode Island was separated from the
Confederacy and left to itself, the insecurity of rights under the
popular form of government within such narrow limits would be displayed
by such reiterated oppressions of factious majorities that some power
altogether independent of the people would soon be called for by the
voice of the very factions whose misrule had proved the necessity of it.
In the extended republic of the United States, and among the great
variety of interests, parties, and sects which it embraces, a coalition
of a majority of the whole society could seldom take place on any other
principles than those of justice and the general good; whilst there
being thus less danger to a minor from the will of a major party, there
must be less pretext, also, to provide for the security of the former,
by introducing into the government a will not dependent on the latter,
or, in other words, a will independent of the society itself. It is no
less certain than it is important, notwithstanding the contrary opinions
which have been entertained, that the larger the society, provided it
lie within a practical sphere, the more duly capable it will be of
self-government. And happily for the REPUBLICAN CAUSE, the practicable
sphere may be carried to a very great extent, by a judicious
modification and mixture of the FEDERAL PRINCIPLE.
PUBLIUS
FEDERALIST No. 52
The House of Representatives
From the New York Packet.
Friday, February 8, 1788.
MADISON
To the People of the State of New York:
FROM the more general inquiries pursued in the four last papers, I pass
on to a more particular examination of the several parts of the
government. I shall begin with the House of Representatives.
The first view to be taken of this part of the government relates to the
qualifications of the electors and the elected. Those of the former are
to be the same with those of the electors of the most numerous branch of
the State legislatures. The definition of the right of suffrage is very
justly regarded as a fundamental article of republican government. It
was incumbent on the convention, therefore, to define and establish this
right in the Constitution. To have left it open for the occasional
regulation of the Congress, would have been improper for the reason just
mentioned. To have submitted it to the legislative discretion of the
States, would have been improper for the same reason; and for the
additional reason that it would have rendered too dependent on the State
governments that branch of the federal government which ought to be
dependent on the people alone. To have reduced the different
qualifications in the different States to one uniform rule, would
probably have been as dissatisfactory to some of the States as it would
have been difficult to the convention. The provision made by the
convention appears, therefore, to be the best that lay within their
option. It must be satisfactory to every State, because it is
conformable to the standard already established, or which may be
established, by the State itself. It will be safe to the United States,
because, being fixed by the State constitutions, it is not alterable by
the State governments, and it cannot be feared that the people of the
States will alter this part of their constitutions in such a manner as
to abridge the rights secured to them by the federal Constitution.
The qualifications of the elected, being less carefully and properly
defined by the State constitutions, and being at the same time more
susceptible of uniformity, have been very properly considered and
regulated by the convention. A representative of the United States must
be of the age of twenty-five years; must have been seven years a citizen
of the United States; must, at the time of his election, be an
inhabitant of the State he is to represent; and, during the time of his
service, must be in no office under the United States. Under these
reasonable limitations, the door of this part of the federal government
is open to merit of every description, whether native or adoptive,
whether young or old, and without regard to poverty or wealth, or to any
particular profession of religious faith.
The term for which the representatives are to be elected falls under a
second view which may be taken of this branch. In order to decide on the
propriety of this article, two questions must be considered: first,
whether biennial elections will, in this case, be safe; secondly,
whether they be necessary or useful.
First. As it is essential to liberty that the government in general
should have a common interest with the people, so it is particularly
essential that the branch of it under consideration should have an
immediate dependence on, and an intimate sympathy with, the people.
Frequent elections are unquestionably the only policy by which this
dependence and sympathy can be effectually secured. But what particular
degree of frequency may be absolutely necessary for the purpose, does
not appear to be susceptible of any precise calculation, and must depend
on a variety of circumstances with which it may be connected. Let us
consult experience, the guide that ought always to be followed whenever
it can be found.
The scheme of representation, as a substitute for a meeting of the
citizens in person, being at most but very imperfectly known to ancient
polity, it is in more modern times only that we are to expect
instructive examples. And even here, in order to avoid a research too
vague and diffusive, it will be proper to confine ourselves to the few
examples which are best known, and which bear the greatest analogy to
our particular case. The first to which this character ought to be
applied, is the House of Commons in Great Britain. The history of this
branch of the English Constitution, anterior to the date of Magna
Charta, is too obscure to yield instruction. The very existence of it
has been made a question among political antiquaries. The earliest
records of subsequent date prove that parliaments were to SIT only every
year; not that they were to be ELECTED every year. And even these annual
sessions were left so much at the discretion of the monarch, that, under
various pretexts, very long and dangerous intermissions were often
contrived by royal ambition. To remedy this grievance, it was provided
by a statute in the reign of Charles II, that the intermissions should
not be protracted beyond a period of three years. On the accession of
William III, when a revolution took place in the government, the
subject was still more seriously resumed, and it was declared to be
among the fundamental rights of the people that parliaments ought to be
held FREQUENTLY. By another statute, which passed a few years later in
the same reign, the term "frequently," which had alluded to the
triennial period settled in the time of Charles II, is reduced to a
precise meaning, it being expressly enacted that a new parliament shall
be called within three years after the termination of the former. The
last change, from three to seven years, is well known to have been
introduced pretty early in the present century, under on alarm for the
Hanoverian succession. From these facts it appears that the greatest
frequency of elections which has been deemed necessary in that kingdom,
for binding the representatives to their constituents, does not exceed a
triennial return of them. And if we may argue from the degree of liberty
retained even under septennial elections, and all the other vicious
ingredients in the parliamentary constitution, we cannot doubt that a
reduction of the period from seven to three years, with the other
necessary reforms, would so far extend the influence of the people over
their representatives as to satisfy us that biennial elections, under
the federal system, cannot possibly be dangerous to the requisite
dependence of the House of Representatives on their constituents.
Elections in Ireland, till of late, were regulated entirely by the
discretion of the crown, and were seldom repeated, except on the
accession of a new prince, or some other contingent event. The
parliament which commenced with George II. was continued throughout his
whole reign, a period of about thirty-five years. The only dependence of
the representatives on the people consisted in the right of the latter
to supply occasional vacancies by the election of new members, and in
the chance of some event which might produce a general new election. The
ability also of the Irish parliament to maintain the rights of their
constituents, so far as the disposition might exist, was extremely
shackled by the control of the crown over the subjects of their
deliberation. Of late these shackles, if I mistake not, have been
broken; and octennial parliaments have besides been established. What
effect may be produced by this partial reform, must be left to further
experience. The example of Ireland, from this view of it, can throw but
little light on the subject. As far as we can draw any conclusion from
it, it must be that if the people of that country have been able under
all these disadvantages to retain any liberty whatever, the advantage of
biennial elections would secure to them every degree of liberty, which
might depend on a due connection between their representatives and
themselves.
Let us bring our inquiries nearer home. The example of these States,
when British colonies, claims particular attention, at the same time
that it is so well known as to require little to be said on it. The
principle of representation, in one branch of the legislature at least,
was established in all of them. But the periods of election were
different. They varied from one to seven years. Have we any reason to
infer, from the spirit and conduct of the representatives of the people,
prior to the Revolution, that biennial elections would have been
dangerous to the public liberties? The spirit which everywhere displayed
itself at the commencement of the struggle, and which vanquished the
obstacles to independence, is the best of proofs that a sufficient
portion of liberty had been everywhere enjoyed to inspire both a sense
of its worth and a zeal for its proper enlargement This remark holds
good, as well with regard to the then colonies whose elections were
least frequent, as to those whose elections were most frequent Virginia
was the colony which stood first in resisting the parliamentary
usurpations of Great Britain; it was the first also in espousing, by
public act, the resolution of independence. In Virginia, nevertheless,
if I have not been misinformed, elections under the former government
were septennial. This particular example is brought into view, not as a
proof of any peculiar merit, for the priority in those instances was
probably accidental; and still less of any advantage in SEPTENNIAL
elections, for when compared with a greater frequency they are
inadmissible; but merely as a proof, and I conceive it to be a very
substantial proof, that the liberties of the people can be in no danger
from BIENNIAL elections.
The conclusion resulting from these examples will be not a little
strengthened by recollecting three circumstances. The first is, that the
federal legislature will possess a part only of that supreme legislative
authority which is vested completely in the British Parliament; and
which, with a few exceptions, was exercised by the colonial assemblies
and the Irish legislature. It is a received and well-founded maxim, that
where no other circumstances affect the case, the greater the power is,
the shorter ought to be its duration; and, conversely, the smaller the
power, the more safely may its duration be protracted. In the second
place, it has, on another occasion, been shown that the federal
legislature will not only be restrained by its dependence on its people,
as other legislative bodies are, but that it will be, moreover, watched
and controlled by the several collateral legislatures, which other
legislative bodies are not. And in the third place, no comparison can be
made between the means that will be possessed by the more permanent
branches of the federal government for seducing, if they should be
disposed to seduce, the House of Representatives from their duty to the
people, and the means of influence over the popular branch possessed by
the other branches of the government above cited. With less power,
therefore, to abuse, the federal representatives can be less tempted on
one side, and will be doubly watched on the other.
PUBLIUS
FEDERALIST No. 53
The Same Subject Continued (The House of Representatives)
For the Independent Journal.
Saturday, February 9, 1788.
MADISON
To the People of the State of New York:
I SHALL here, perhaps, be reminded of a current observation, "that where
annual elections end, tyranny begins." If it be true, as has often been
remarked, that sayings which become proverbial are generally founded in
reason, it is not less true, that when once established, they are often
applied to cases to which the reason of them does not extend. I need not
look for a proof beyond the case before us. What is the reason on which
this proverbial observation is founded? No man will subject himself to
the ridicule of pretending that any natural connection subsists between
the sun or the seasons, and the period within which human virtue can
bear the temptations of power. Happily for mankind, liberty is not, in
this respect, confined to any single point of time; but lies within
extremes, which afford sufficient latitude for all the variations which
may be required by the various situations and circumstances of civil
society. The election of magistrates might be, if it were found
expedient, as in some instances it actually has been, daily, weekly, or
monthly, as well as annual; and if circumstances may require a deviation
from the rule on one side, why not also on the other side? Turning our
attention to the periods established among ourselves, for the election
of the most numerous branches of the State legislatures, we find them by
no means coinciding any more in this instance, than in the elections of
other civil magistrates. In Connecticut and Rhode Island, the periods
are half-yearly. In the other States, South Carolina excepted, they are
annual. In South Carolina they are biennial -- as is proposed in the
federal government. Here is a difference, as four to one, between the
longest and shortest periods; and yet it would be not easy to show, that
Connecticut or Rhode Island is better governed, or enjoys a greater
share of rational liberty, than South Carolina; or that either the one
or the other of these States is distinguished in these respects, and by
these causes, from the States whose elections are different from both.
In searching for the grounds of this doctrine, I can discover but one,
and that is wholly inapplicable to our case. The important distinction
so well understood in America, between a Constitution established by the
people and unalterable by the government, and a law established by the
government and alterable by the government, seems to have been little
understood and less observed in any other country. Wherever the supreme
power of legislation has resided, has been supposed to reside also a
full power to change the form of the government. Even in Great Britain,
where the principles of political and civil liberty have been most
discussed, and where we hear most of the rights of the Constitution, it
is maintained that the authority of the Parliament is transcendent and
uncontrollable, as well with regard to the Constitution, as the ordinary
objects of legislative provision. They have accordingly, in several
instances, actually changed, by legislative acts, some of the most
fundamental articles of the government. They have in particular, on
several occasions, changed the period of election; and, on the last
occasion, not only introduced septennial in place of triennial
elections, but by the same act, continued themselves in place four years
beyond the term for which they were elected by the people. An attention
to these dangerous practices has produced a very natural alarm in the
votaries of free government, of which frequency of elections is the
corner-stone; and has led them to seek for some security to liberty,
against the danger to which it is exposed. Where no Constitution,
paramount to the government, either existed or could be obtained, no
constitutional security, similar to that established in the United
States, was to be attempted. Some other security, therefore, was to be
sought for; and what better security would the case admit, than that of
selecting and appealing to some simple and familiar portion of time, as
a standard for measuring the danger of innovations, for fixing the
national sentiment, and for uniting the patriotic exertions? The most
simple and familiar portion of time, applicable to the subject was that
of a year; and hence the doctrine has been inculcated by a laudable
zeal, to erect some barrier against the gradual innovations of an
unlimited government, that the advance towards tyranny was to be
calculated by the distance of departure from the fixed point of annual
elections. But what necessity can there be of applying this expedient to
a government limited, as the federal government will be, by the
authority of a paramount Constitution? Or who will pretend that the
liberties of the people of America will not be more secure under
biennial elections, unalterably fixed by such a Constitution, than those
of any other nation would be, where elections were annual, or even more
frequent, but subject to alterations by the ordinary power of the
government?
The second question stated is, whether biennial elections be necessary
or useful. The propriety of answering this question in the affirmative
will appear from several very obvious considerations.
No man can be a competent legislator who does not add to an upright
intention and a sound judgment a certain degree of knowledge of the
subjects on which he is to legislate. A part of this knowledge may be
acquired by means of information which lie within the compass of men in
private as well as public stations. Another part can only be attained,
or at least thoroughly attained, by actual experience in the station
which requires the use of it. The period of service, ought, therefore,
in all such cases, to bear some proportion to the extent of practical
knowledge requisite to the due performance of the service. The period of
legislative service established in most of the States for the more
numerous branch is, as we have seen, one year. The question then may be
put into this simple form: does the period of two years bear no greater
proportion to the knowledge requisite for federal legislation than one
year does to the knowledge requisite for State legislation? The very
statement of the question, in this form, suggests the answer that ought
to be given to it.
In a single State, the requisite knowledge relates to the existing laws
which are uniform throughout the State, and with which all the citizens
are more or less conversant; and to the general affairs of the State,
which lie within a small compass, are not very diversified, and occupy
much of the attention and conversation of every class of people. The
great theatre of the United States presents a very different scene. The
laws are so far from being uniform, that they vary in every State;
whilst the public affairs of the Union are spread throughout a very
extensive region, and are extremely diversified by the local affairs
connected with them, and can with difficulty be correctly learnt in any
other place than in the central councils to which a knowledge of them
will be brought by the representatives of every part of the empire. Yet
some knowledge of the affairs, and even of the laws, of all the States,
ought to be possessed by the members from each of the States. How can
foreign trade be properly regulated by uniform laws, without some
acquaintance with the commerce, the ports, the usages, and the
regulatious of the different States? How can the trade between the
different States be duly regulated, without some knowledge of their
relative situations in these and other respects? How can taxes be
judiciously imposed and effectually collected, if they be not
accommodated to the different laws and local circumstances relating to
these objects in the different States? How can uniform regulations for
the militia be duly provided, without a similar knowledge of many
internal circumstances by which the States are distinguished from each
other? These are the principal objects of federal legislation, and
suggest most forcibly the extensive information which the
representatives ought to acquire. The other interior objects will
require a proportional degree of information with regard to them.
It is true that all these difficulties will, by degrees, be very much
diminished. The most laborious task will be the proper inauguration of
the government and the primeval formation of a federal code.
Improvements on the first draughts will every year become both easier
and fewer. Past transactions of the government will be a ready and
accurate source of information to new members. The affairs of the Union
will become more and more objects of curiosity and conversation among
the citizens at large. And the increased intercourse among those of
different States will contribute not a little to diffuse a mutual
knowledge of their affairs, as this again will contribute to a general
assimilation of their manners and laws. But with all these abatements,
the business of federal legislation must continue so far to exceed, both
in novelty and difficulty, the legislative business of a single State,
as to justify the longer period of service assigned to those who are to
transact it.
A branch of knowledge which belongs to the acquirements of a federal
representative, and which has not been mentioned is that of foreign
affairs. In regulating our own commerce he ought to be not only
acquainted with the treaties between the United States and other
nations, but also with the commercial policy and laws of other nations.
He ought not to be altogether ignorant of the law of nations; for that,
as far as it is a proper object of municipal legislation, is submitted
to the federal government. And although the House of Representatives is
not immediately to participate in foreign negotiations and arrangements,
yet from the necessary connection between the several branches of public
affairs, those particular branches will frequently deserve attention in
the ordinary course of legislation, and will sometimes demand particular
legislative sanction and co-operation. Some portion of this knowledge
may, no doubt, be acquired in a man's closet; but some of it also can
only be derived from the public sources of information; and all of it
will be acquired to best effect by a practical attention to the subject
during the period of actual service in the legislature.
There are other considerations, of less importance, perhaps, but which
are not unworthy of notice. The distance which many of the
representatives will be obliged to travel, and the arrangements rendered
necessary by that circumstance, might be much more serious objections
with fit men to this service, if limited to a single year, than if
extended to two years. No argument can be drawn on this subject, from
the case of the delegates to the existing Congress. They are elected
annually, it is true; but their re-election is considered by the
legislative assemblies almost as a matter of course. The election of the
representatives by the people would not be governed by the same
principle.
A few of the members, as happens in all such assemblies, will possess
superior talents; will, by frequent reelections, become members of long
standing; will be thoroughly masters of the public business, and perhaps
not unwilling to avail themselves of those advantages. The greater the
proportion of new members, and the less the information of the bulk of
the members the more apt will they be to fall into the snares that may
be laid for them. This remark is no less applicable to the relation
which will subsist between the House of Representatives and the Senate.
It is an inconvenience mingled with the advantages of our frequent
elections even in single States, where they are large, and hold but one
legislative session in a year, that spurious elections cannot be
investigated and annulled in time for the decision to have its due
effect. If a return can be obtained, no matter by what unlawful means,
the irregular member, who takes his seat of course, is sure of holding
it a sufficient time to answer his purposes. Hence, a very pernicious
encouragement is given to the use of unlawful means, for obtaining
irregular returns. Were elections for the federal legislature to be
annual, this practice might become a very serious abuse, particularly in
the more distant States. Each house is, as it necessarily must be, the
judge of the elections, qualifications, and returns of its members; and
whatever improvements may be suggested by experience, for simplifying
and accelerating the process in disputed cases, so great a portion of a
year would unavoidably elapse, before an illegitimate member could be
dispossessed of his seat, that the prospect of such an event would be
little check to unfair and illicit means of obtaining a seat.
All these considerations taken together warrant us in affirming, that
biennial elections will be as useful to the affairs of the public as we
have seen that they will be safe to the liberty of the people.
PUBLIUS
FEDERALIST No. 54
The Apportionment of Members Among the States
From the New York Packet.
Tuesday, February 12, 1788.
MADISON
To the People of the State of New York:
THE next view which I shall take of the House of Representatives relates
to the appointment of its members to the several States which is to be
determined by the same rule with that of direct taxes.
It is not contended that the number of people in each State ought not to
be the standard for regulating the proportion of those who are to
represent the people of each State. The establishment of the same rule
for the appointment of taxes, will probably be as little contested;
though the rule itself in this case, is by no means founded on the same
principle. In the former case, the rule is understood to refer to the
personal rights of the people, with which it has a natural and universal
connection. In the latter, it has reference to the proportion of wealth,
of which it is in no case a precise measure, and in ordinary cases a
very unfit one. But notwithstanding the imperfection of the rule as
applied to the relative wealth and contributions of the States, it is
evidently the least objectionable among the practicable rules, and had
too recently obtained the general sanction of America, not to have found
a ready preference with the convention.
All this is admitted, it will perhaps be said; but does it follow, from
an admission of numbers for the measure of representation, or of slaves
combined with free citizens as a ratio of taxation, that slaves ought to
be included in the numerical rule of representation? Slaves are
considered as property, not as persons. They ought therefore to be
comprehended in estimates of taxation which are founded on property, and
to be excluded from representation which is regulated by a census of
persons. This is the objection, as I understand it, stated in its full
force. I shall be equally candid in stating the reasoning which may be
offered on the opposite side.
"We subscribe to the doctrine," might one of our Southern brethren
observe, "that representation relates more immediately to persons, and
taxation more immediately to property, and we join in the application of
this distinction to the case of our slaves. But we must deny the fact,
that slaves are considered merely as property, and in no respect
whatever as persons. The true state of the case is, that they partake of
both these qualities: being considered by our laws, in some respects, as
persons, and in other respects as property. In being compelled to labor,
not for himself, but for a master; in being vendible by one master to
another master; and in being subject at all times to be restrained in
his liberty and chastised in his body, by the capricious will of
another -- the slave may appear to be degraded from the human rank, and
classed with those irrational animals which fall under the legal
denomination of property. In being protected, on the other hand, in his
life and in his limbs, against the violence of all others, even the
master of his labor and his liberty; and in being punishable himself for
all violence committed against others -- the slave is no less evidently
regarded by the law as a member of the society, not as a part of the
irrational creation; as a moral person, not as a mere article of
property. The federal Constitution, therefore, decides with great
propriety on the case of our slaves, when it views them in the mixed
character of persons and of property. This is in fact their true
character. It is the character bestowed on them by the laws under which
they live; and it will not be denied, that these are the proper
criterion; because it is only under the pretext that the laws have
transformed the negroes into subjects of property, that a place is
disputed them in the computation of numbers; and it is admitted, that if
the laws were to restore the rights which have been taken away, the
negroes could no longer be refused an equal share of representation with
the other inhabitants.
"This question may be placed in another light. It is agreed on all sides,
that numbers are the best scale of wealth and taxation, as they are the
only proper scale of representation. Would the convention have been
impartial or consistent, if they had rejected the slaves from the list
of inhabitants, when the shares of representation were to be calculated,
and inserted them on the lists when the tariff of contributions was to
be adjusted? Could it be reasonably expected, that the Southern States
would concur in a system, which considered their slaves in some degree
as men, when burdens were to be imposed, but refused to consider them in
the same light, when advantages were to be conferred? Might not some
surprise also be expressed, that those who reproach the Southern States
with the barbarous policy of considering as property a part of their
human brethren, should themselves contend, that the government to which
all the States are to be parties, ought to consider this unfortunate
race more completely in the unnatural light of property, than the very
laws of which they complain?
"It may be replied, perhaps, that slaves are not included in the estimate
of representatives in any of the States possessing them. They neither
vote themselves nor increase the votes of their masters. Upon what
principle, then, ought they to be taken into the federal estimate of
representation? In rejecting them altogether, the Constitution would, in
this respect, have followed the very laws which have been appealed to as
the proper guide.
"This objection is repelled by a single observation. It is a fundamental
principle of the proposed Constitution, that as the aggregate number of
representatives allotted to the several States is to be determined by a
federal rule, founded on the aggregate number of inhabitants, so the
right of choosing this allotted number in each State is to be exercised
by such part of the inhabitants as the State itself may designate. The
qualifications on which the right of suffrage depend are not, perhaps,
the same in any two States. In some of the States the difference is very
material. In every State, a certain proportion of inhabitants are
deprived of this right by the constitution of the State, who will be
included in the census by which the federal Constitution apportions the
representatives. In this point of view the Southern States might retort
the complaint, by insisting that the principle laid down by the
convention required that no regard should be had to the policy of
particular States towards their own inhabitants; and consequently, that
the slaves, as inhabitants, should have been admitted into the census
according to their full number, in like manner with other inhabitants,
who, by the policy of other States, are not admitted to all the rights
of citizens. A rigorous adherence, however, to this principle, is waived
by those who would be gainers by it. All that they ask is that equal
moderation be shown on the other side. Let the case of the slaves be
considered, as it is in truth, a peculiar one. Let the compromising
expedient of the Constitution be mutually adopted, which regards them as
inhabitants, but as debased by servitude below the equal level of free
inhabitants, which regards the SLAVE as divested of two fifths of the
MAN.
"After all, may not another ground be taken on which this article of the
Constitution will admit of a still more ready defense? We have hitherto
proceeded on the idea that representation related to persons only, and
not at all to property. But is it a just idea? Government is instituted
no less for protection of the property, than of the persons, of
individuals. The one as well as the other, therefore, may be considered
as represented by those who are charged with the government. Upon this
principle it is, that in several of the States, and particularly in the
State of New York, one branch of the government is intended more
especially to be the guardian of property, and is accordingly elected by
that part of the society which is most interested in this object of
government. In the federal Constitution, this policy does not prevail.
The rights of property are committed into the same hands with the
personal rights. Some attention ought, therefore, to be paid to property
in the choice of those hands.
"For another reason, the votes allowed in the federal legislature to the
people of each State, ought to bear some proportion to the comparative
wealth of the States. States have not, like individuals, an influence
over each other, arising from superior advantages of fortune. If the law
allows an opulent citizen but a single vote in the choice of his
representative, the respect and consequence which he derives from his
fortunate situation very frequently guide the votes of others to the
objects of his choice; and through this imperceptible channel the rights
of property are conveyed into the public representation. A State
possesses no such influence over other States. It is not probable that
the richest State in the Confederacy will ever influence the choice of a
single representative in any other State. Nor will the representatives
of the larger and richer States possess any other advantage in the
federal legislature, over the representatives of other States, than what
may result from their superior number alone. As far, therefore, as their
superior wealth and weight may justly entitle them to any advantage, it
ought to be secured to them by a superior share of representation. The
new Constitution is, in this respect, materially different from the
existing Confederation, as well as from that of the United Netherlands,
and other similar confederacies. In each of the latter, the efficacy of
the federal resolutions depends on the subsequent and voluntary
resolutions of the states composing the union. Hence the states, though
possessing an equal vote in the public councils, have an unequal
influence, corresponding with the unequal importance of these subsequent
and voluntary resolutions. Under the proposed Constitution, the federal
acts will take effect without the necessary intervention of the
individual States. They will depend merely on the majority of votes in
the federal legislature, and consequently each vote, whether proceeding
from a larger or smaller State, or a State more or less wealthy or
powerful, will have an equal weight and efficacy: in the same manner as
the votes individually given in a State legislature, by the
representatives of unequal counties or other districts, have each a
precise equality of value and effect; or if there be any difference in
the case, it proceeds from the difference in the personal character of
the individual representative, rather than from any regard to the extent
of the district from which he comes."
Such is the reasoning which an advocate for the Southern interests might
employ on this subject; and although it may appear to be a little
strained in some points, yet, on the whole, I must confess that it fully
reconciles me to the scale of representation which the convention have
established.
In one respect, the establishment of a common measure for representation
and taxation will have a very salutary effect. As the accuracy of the
census to be obtained by the Congress will necessarily depend, in a
considerable degree on the disposition, if not on the co-operation, of
the States, it is of great importance that the States should feel as
little bias as possible, to swell or to reduce the amount of their
numbers. Were their share of representation alone to be governed by this
rule, they would have an interest in exaggerating their inhabitants.
Were the rule to decide their share of taxation alone, a contrary
temptation would prevail. By extending the rule to both objects, the
States will have opposite interests, which will control and balance each
other, and produce the requisite impartiality.
PUBLIUS
FEDERALIST No. 55
The Total Number of the House of Representatives
For the Independent Journal.
Wednesday, February 13, 1788.
MADISON
To the People of the State of New York:
THE number of which the House of Representatives is to consist, forms
another and a very interesting point of view, under which this branch of
the federal legislature may be contemplated. Scarce any article, indeed,
in the whole Constitution seems to be rendered more worthy of attention,
by the weight of character and the apparent force of argument with which
it has been assailed. The charges exhibited against it are, first, that
so small a number of representatives will be an unsafe depositary of the
public interests; secondly, that they will not possess a proper
knowledge of the local circumstances of their numerous constituents;
thirdly, that they will be taken from that class of citizens which will
sympathize least with the feelings of the mass of the people, and be
most likely to aim at a permanent elevation of the few on the depression
of the many; fourthly, that defective as the number will be in the first
instance, it will be more and more disproportionate, by the increase of
the people, and the obstacles which will prevent a correspondent
increase of the representatives.
In general it may be remarked on this subject, that no political problem
is less susceptible of a precise solution than that which relates to the
number most convenient for a representative legislature; nor is there
any point on which the policy of the several States is more at variance,
whether we compare their legislative assemblies directly with each
other, or consider the proportions which they respectively bear to the
number of their constituents. Passing over the difference between the
smallest and largest States, as Delaware, whose most numerous branch
consists of twenty-one representatives, and Massachusetts, where it
amounts to between three and four hundred, a very considerable
difference is observable among States nearly equal in population. The
number of representatives in Pennsylvania is not more than one fifth of
that in the State last mentioned. New York, whose population is to that
of South Carolina as six to five, has little more than one third of the
number of representatives. As great a disparity prevails between the
States of Georgia and Delaware or Rhode Island. In Pennsylvania, the
representatives do not bear a greater proportion to their constituents
than of one for every four or five thousand. In Rhode Island, they bear
a proportion of at least one for every thousand. And according to the
constitution of Georgia, the proportion may be carried to one to every
ten electors; and must unavoidably far exceed the proportion in any of
the other States.
Another general remark to be made is, that the ratio between the
representatives and the people ought not to be the same where the latter
are very numerous as where they are very few. Were the representatives
in Virginia to be regulated by the standard in Rhode Island, they would,
at this time, amount to between four and five hundred; and twenty or
thirty years hence, to a thousand. On the other hand, the ratio of
Pennsylvania, if applied to the State of Delaware, would reduce the
representative assembly of the latter to seven or eight members. Nothing
can be more fallacious than to found our political calculations on
arithmetical principles. Sixty or seventy men may be more properly
trusted with a given degree of power than six or seven. But it does not
follow that six or seven hundred would be proportionably a better
depositary. And if we carry on the supposition to six or seven thousand,
the whole reasoning ought to be reversed. The truth is, that in all
cases a certain number at least seems to be necessary to secure the
benefits of free consultation and discussion, and to guard against too
easy a combination for improper purposes; as, on the other hand, the
number ought at most to be kept within a certain limit, in order to
avoid the confusion and intemperance of a multitude. In all very
numerous assemblies, of whatever character composed, passion never fails
to wrest the sceptre from reason. Had every Athenian citizen been a
Socrates, every Athenian assembly would still have been a mob.
It is necessary also to recollect here the observations which were
applied to the case of biennial elections. For the same reason that the
limited powers of the Congress, and the control of the State
legislatures, justify less frequent elections than the public safely
might otherwise require, the members of the Congress need be less
numerous than if they possessed the whole power of legislation, and were
under no other than the ordinary restraints of other legislative bodies.
With these general ideas in our mind, let us weigh the objections which
have been stated against the number of members proposed for the House of
Representatives. It is said, in the first place, that so small a number
cannot be safely trusted with so much power.
The number of which this branch of the legislature is to consist, at the
outset of the government, will be sixtyfive. Within three years a census
is to be taken, when the number may be augmented to one for every thirty
thousand inhabitants; and within every successive period of ten years
the census is to be renewed, and augmentations may continue to be made
under the above limitation. It will not be thought an extravagant
conjecture that the first census will, at the rate of one for every
thirty thousand, raise the number of representatives to at least one
hundred. Estimating the negroes in the proportion of three fifths, it
can scarcely be doubted that the population of the United States will by
that time, if it does not already, amount to three millions. At the
expiration of twenty-five years, according to the computed rate of
increase, the number of representatives will amount to two hundred, and
of fifty years, to four hundred. This is a number which, I presume, will
put an end to all fears arising from the smallness of the body. I take
for granted here what I shall, in answering the fourth objection,
hereafter show, that the number of representatives will be augmented
from time to time in the manner provided by the Constitution. On a
contrary supposition, I should admit the objection to have very great
weight indeed.
The true question to be decided then is, whether the smallness of the
number, as a temporary regulation, be dangerous to the public liberty?
Whether sixty-five members for a few years, and a hundred or two hundred
for a few more, be a safe depositary for a limited and well-guarded
power of legislating for the United States? I must own that I could not
give a negative answer to this question, without first obliterating
every impression which I have received with regard to the present genius
of the people of America, the spirit which actuates the State
legislatures, and the principles which are incorporated with the
political character of every class of citizens I am unable to conceive
that the people of America, in their present temper, or under any
circumstances which can speedily happen, will choose, and every second
year repeat the choice of, sixty-five or a hundred men who would be
disposed to form and pursue a scheme of tyranny or treachery. I am
unable to conceive that the State legislatures, which must feel so many
motives to watch, and which possess so many means of counteracting, the
federal legislature, would fail either to detect or to defeat a
conspiracy of the latter against the liberties of their common
constituents. I am equally unable to conceive that there are at this
time, or can be in any short time, in the United States, any sixty-five
or a hundred men capable of recommending themselves to the choice of the
people at large, who would either desire or dare, within the short space
of two years, to betray the solemn trust committed to them. What change
of circumstances, time, and a fuller population of our country may
produce, requires a prophetic spirit to declare, which makes no part of
my pretensions. But judging from the circumstances now before us, and
from the probable state of them within a moderate period of time, I must
pronounce that the liberties of America cannot be unsafe in the number
of hands proposed by the federal Constitution.
From what quarter can the danger proceed? Are we afraid of foreign gold?
If foreign gold could so easily corrupt our federal rulers and enable
them to ensnare and betray their constituents, how has it happened that
we are at this time a free and independent nation? The Congress which
conducted us through the Revolution was a less numerous body than their
successors will be; they were not chosen by, nor responsible to, their
fellow citizens at large; though appointed from year to year, and
recallable at pleasure, they were generally continued for three years,
and prior to the ratification of the federal articles, for a still
longer term. They held their consultations always under the veil of
secrecy; they had the sole transaction of our affairs with foreign
nations; through the whole course of the war they had the fate of their
country more in their hands than it is to be hoped will ever be the case
with our future representatives; and from the greatness of the prize at
stake, and the eagerness of the party which lost it, it may well be
supposed that the use of other means than force would not have been
scrupled. Yet we know by happy experience that the public trust was not
betrayed; nor has the purity of our public councils in this particular
ever suffered, even from the whispers of calumny.
Is the danger apprehended from the other branches of the federal
government? But where are the means to be found by the President, or the
Senate, or both? Their emoluments of office, it is to be presumed, will
not, and without a previous corruption of the House of Representatives
cannot, more than suffice for very different purposes; their private
fortunes, as they must all be American citizens, cannot possibly be
sources of danger. The only means, then, which they can possess, will be
in the dispensation of appointments. Is it here that suspicion rests her
charge? Sometimes we are told that this fund of corruption is to be
exhausted by the President in subduing the virtue of the Senate. Now,
the fidelity of the other House is to be the victim. The improbability
of such a mercenary and perfidious combination of the several members of
government, standing on as different foundations as republican
principles will well admit, and at the same time accountable to the
society over which they are placed, ought alone to quiet this
apprehension. But, fortunately, the Constitution has provided a still
further safeguard. The members of the Congress are rendered ineligible
to any civil offices that may be created, or of which the emoluments may
be increased, during the term of their election. No offices therefore
can be dealt out to the existing members but such as may become vacant
by ordinary casualties: and to suppose that these would be sufficient to
purchase the guardians of the people, selected by the people themselves,
is to renounce every rule by which events ought to be calculated, and to
substitute an indiscriminate and unbounded jealousy, with which all
reasoning must be vain. The sincere friends of liberty, who give
themselves up to the extravagances of this passion, are not aware of
the injury they do their own cause. As there is a degree of depravity in
mankind which requires a certain degree of circumspection and distrust,
so there are other qualities in human nature which justify a certain
portion of esteem and confidence. Republican government presupposes the
existence of these qualities in a higher degree than any other form.
Were the pictures which have been drawn by the political jealousy of
some among us faithful likenesses of the human character, the inference
would be, that there is not sufficient virtue among men for
self-government; and that nothing less than the chains of despotism can
restrain them from destroying and devouring one another.
PUBLIUS
FEDERALIST No. 56
The Same Subject Continued (The Total Number of the House of
Representatives)
For the Independent Journal.
Saturday, February 16, 1788.
MADISON
To the People of the State of New York:
THE SECOND charge against the House of Representatives is, that it will
be too small to possess a due knowledge of the interests of its
constituents.
As this objection evidently proceeds from a comparison of the proposed
number of representatives with the great extent of the United States,
the number of their inhabitants, and the diversity of their interests,
without taking into view at the same time the circumstances which will
distinguish the Congress from other legislative bodies, the best answer
that can be given to it will be a brief explanation of these
peculiarities.
It is a sound and important principle that the representative ought to
be acquainted with the interests and circumstances of his constituents.
But this principle can extend no further than to those circumstances and
interests to which the authority and care of the representative relate.
An ignorance of a variety of minute and particular objects, which do not
lie within the compass of legislation, is consistent with every
attribute necessary to a due performance of the legislative trust. In
determining the extent of information required in the exercise of a
particular authority, recourse then must be had to the objects within
the purview of that authority.
What are to be the objects of federal legislation? Those which are of
most importance, and which seem most to require local knowledge, are
commerce, taxation, and the militia.
A proper regulation of commerce requires much information, as has been
elsewhere remarked; but as far as this information relates to the laws
and local situation of each individual State, a very few representatives
would be very sufficient vehicles of it to the federal councils.
Taxation will consist, in a great measure, of duties which will be
involved in the regulation of commerce. So far the preceding remark is
applicable to this object. As far as it may consist of internal
collections, a more diffusive knowledge of the circumstances of the
State may be necessary. But will not this also be possessed in
sufficient degree by a very few intelligent men, diffusively elected
within the State? Divide the largest State into ten or twelve districts,
and it will be found that there will be no peculiar local interests in
either, which will not be within the knowledge of the representative of
the district. Besides this source of information, the laws of the State,
framed by representatives from every part of it, will be almost of
themselves a sufficient guide. In every State there have been made, and
must continue to be made, regulations on this subject which will, in
many cases, leave little more to be done by the federal legislature,
than to review the different laws, and reduce them in one general act. A
skillful individual in his closet with all the local codes before him,
might compile a law on some subjects of taxation for the whole union,
without any aid from oral information, and it may be expected that
whenever internal taxes may be necessary, and particularly in cases
requiring uniformity throughout the States, the more simple objects will
be preferred. To be fully sensible of the facility which will be given
to this branch of federal legislation by the assistance of the State
codes, we need only suppose for a moment that this or any other State
were divided into a number of parts, each having and exercising within
itself a power of local legislation. Is it not evident that a degree of
local information and preparatory labor would be found in the several
volumes of their proceedings, which would very much shorten the labors
of the general legislature, and render a much smaller number of members
sufficient for it? The federal councils will derive great advantage from
another circumstance. The representatives of each State will not only
bring with them a considerable knowledge of its laws, and a local
knowledge of their respective districts, but will probably in all cases
have been members, and may even at the very time be members, of the
State legislature, where all the local information and interests of the
State are assembled, and from whence they may easily be conveyed by a
very few hands into the legislature of the United States.
[The observations made on the subject of taxation apply with greater
force to the case of the militia. For however different the rules of
discipline may be in different States, they are the same throughout each
particular State; and depend on circumstances which can differ but
little in different parts of the same State.][E1]
[With regard to the regulation of the militia, there are scarcely any
circumstances in reference to which local knowledge can be said to be
necessary. The general face of the country, whether mountainous or level,
most fit for the operations of infantry or cavalry, is almost the only
consideration of this nature that can occur. The art of war teaches
general principles of organization, movement, and discipline, which
apply universally.][E1]
The attentive reader will discern that the reasoning here used, to prove
the sufficiency of a moderate number of representatives, does not in any
respect contradict what was urged on another occasion with regard to the
extensive information which the representatives ought to possess, and
the time that might be necessary for acquiring it. This information, so
far as it may relate to local objects, is rendered necessary and
difficult, not by a difference of laws and local circumstances within a
single State, but of those among different States. Taking each State by
itself, its laws are the same, and its interests but little diversified.
A few men, therefore, will possess all the knowledge requisite for a
proper representation of them. Were the interests and affairs of each
individual State perfectly simple and uniform, a knowledge of them in
one part would involve a knowledge of them in every other, and the whole
State might be competently represented by a single member taken from any
part of it. On a comparison of the different States together, we find a
great dissimilarity in their laws, and in many other circumstances
connected with the objects of federal legislation, with all of which the
federal representatives ought to have some acquaintance. Whilst a few
representatives, therefore, from each State, may bring with them a due
knowledge of their own State, every representative will have much
information to acquire concerning all the other States. The changes of
time, as was formerly remarked, on the comparative situation of the
different States, will have an assimilating effect. The effect of time
on the internal affairs of the States, taken singly, will be just the
contrary. At present some of the States are little more than a society
of husbandmen. Few of them have made much progress in those branches of
industry which give a variety and complexity to the affairs of a nation.
These, however, will in all of them be the fruits of a more advanced
population, and will require, on the part of each State, a fuller
representation. The foresight of the convention has accordingly taken
care that the progress of population may be accompanied with a proper
increase of the representative branch of the government.
The experience of Great Britain, which presents to mankind so many
political lessons, both of the monitory and exemplary kind, and which
has been frequently consulted in the course of these inquiries,
corroborates the result of the reflections which we have just made. The
number of inhabitants in the two kingdoms of England and Scotland cannot
be stated at less than eight millions. The representatives of these
eight millions in the House of Commons amount to five hundred and
fifty-eight. Of this number, one ninth are elected by three hundred and
sixty-four persons, and one half, by five thousand seven hundred and
twenty-three persons.[1] It cannot be supposed that the half thus
elected, and who do not even reside among the people at large, can add
any thing either to the security of the people against the government,
or to the knowledge of their circumstances and interests in the
legislative councils. On the contrary, it is notorious, that they are
more frequently the representatives and instruments of the executive
magistrate, than the guardians and advocates of the popular rights. They
might therefore, with great propriety, be considered as something more
than a mere deduction from the real representatives of the nation. We
will, however, consider them in this light alone, and will not extend
the deduction to a considerable number of others, who do not reside
among their constitutents, are very faintly connected with them, and
have very little particular knowledge of their affairs. With all these
concessions, two hundred and seventy-nine persons only will be the
depository of the safety, interest, and happiness of eight millions that
is to say, there will be one representative only to maintain the rights
and explain the situation of TWENTY-EIGHT THOUSAND SIX HUNDRED AND
SEVENTY constitutents, in an assembly exposed to the whole force of
executive influence, and extending its authority to every object of
legislation within a nation whose affairs are in the highest degree
diversified and complicated. Yet it is very certain, not only that a
valuable portion of freedom has been preserved under all these
circumstances, but that the defects in the British code are chargeable,
in a very small proportion, on the ignorance of the legislature
concerning the circumstances of the people. Allowing to this case the
weight which is due to it, and comparing it with that of the House of
Representatives as above explained it seems to give the fullest
assurance, that a representative for every THIRTY THOUSAND INHABITANTS
will render the latter both a safe and competent guardian of the
interests which will be confided to it.
PUBLIUS
1. Burgh's "Political Disquisitions."
E1. Two versions of this paragraph appear in different editions.
FEDERALIST No. 57
The Alleged Tendency of the New Plan to Elevate the Few at the
Expense of the Many Considered in Connection with Representation
From the New York Packet.
Tuesday, February 19, 1788.
MADISON
To the People of the State of New York:
THE THIRD charge against the House of Representatives is, that it will
be taken from that class of citizens which will have least sympathy with
the mass of the people, and be most likely to aim at an ambitious
sacrifice of the many to the aggrandizement of the few.
Of all the objections which have been framed against the federal
Constitution, this is perhaps the most extraordinary. Whilst the
objection itself is leveled against a pretended oligarchy, the
principle of it strikes at the very root of republican government.
The aim of every political constitution is, or ought to be, first to
obtain for rulers men who possess most wisdom to discern, and most
virtue to pursue, the common good of the society; and in the next place,
to take the most effectual precautions for keeping them virtuous whilst
they continue to hold their public trust. The elective mode of obtaining
rulers is the characteristic policy of republican government. The means
relied on in this form of government for preventing their degeneracy are
numerous and various. The most effectual one, is such a limitation of
the term of appointments as will maintain a proper responsibility to the
people.
Let me now ask what circumstance there is in the constitution of the
House of Representatives that violates the principles of republican
government, or favors the elevation of the few on the ruins of the many?
Let me ask whether every circumstance is not, on the contrary, strictly
conformable to these principles, and scrupulously impartial to the
rights and pretensions of every class and description of citizens?
Who are to be the electors of the federal representatives? Not the rich,
more than the poor; not the learned, more than the ignorant; not the
haughty heirs of distinguished names, more than the humble sons of
obscurity and unpropitious fortune. The electors are to be the great
body of the people of the United States. They are to be the same who
exercise the right in every State of electing the corresponding branch
of the legislature of the State.
Who are to be the objects of popular choice? Every citizen whose merit
may recommend him to the esteem and confidence of his country. No
qualification of wealth, of birth, of religious faith, or of civil
profession is permitted to fetter the judgment or disappoint the
inclination of the people.
If we consider the situation of the men on whom the free suffrages of
their fellow-citizens may confer the representative trust, we shall find
it involving every security which can be devised or desired for their
fidelity to their constituents.
In the first place, as they will have been distinguished by the
preference of their fellow-citizens, we are to presume that in general
they will be somewhat distinguished also by those qualities which
entitle them to it, and which promise a sincere and scrupulous regard to
the nature of their engagements.
In the second place, they will enter into the public service under
circumstances which cannot fail to produce a temporary affection at
least to their constituents. There is in every breast a sensibility to
marks of honor, of favor, of esteem, and of confidence, which, apart
from all considerations of interest, is some pledge for grateful and
benevolent returns. Ingratitude is a common topic of declamation against
human nature; and it must be confessed that instances of it are but too
frequent and flagrant, both in public and in private life. But the
universal and extreme indignation which it inspires is itself a proof of
the energy and prevalence of the contrary sentiment.
In the third place, those ties which bind the representative to his
constituents are strengthened by motives of a more selfish nature. His
pride and vanity attach him to a form of government which favors his
pretensions and gives him a share in its honors and distinctions.
Whatever hopes or projects might be entertained by a few aspiring
characters, it must generally happen that a great proportion of the men
deriving their advancement from their influence with the people, would
have more to hope from a preservation of the favor, than from
innovations in the government subversive of the authority of the people.
All these securities, however, would be found very insufficient without
the restraint of frequent elections. Hence, in the fourth place, the
House of Representatives is so constituted as to support in the members
an habitual recollection of their dependence on the people. Before the
sentiments impressed on their minds by the mode of their elevation can
be effaced by the exercise of power, they will be compelled to
anticipate the moment when their power is to cease, when their exercise
of it is to be reviewed, and when they must descend to the level from
which they were raised; there forever to remain unless a faithful
discharge of their trust shall have established their title to a renewal
of it.
I will add, as a fifth circumstance in the situation of the House of
Representatives, restraining them from oppressive measures, that they
can make no law which will not have its full operation on themselves and
their friends, as well as on the great mass of the society. This has
always been deemed one of the strongest bonds by which human policy can
connect the rulers and the people together. It creates between them that
communion of interests and sympathy of sentiments, of which few
governments have furnished examples; but without which every government
degenerates into tyranny. If it be asked, what is to restrain the House
of Representatives from making legal discriminations in favor of
themselves and a particular class of the society? I answer: the genius
of the whole system; the nature of just and constitutional laws; and
above all, the vigilant and manly spirit which actuates the people of
America -- a spirit which nourishes freedom, and in return is nourished
by it.
If this spirit shall ever be so far debased as to tolerate a law not
obligatory on the legislature, as well as on the people, the people will
be prepared to tolerate any thing but liberty.
Such will be the relation between the House of Representatives and their
constituents. Duty, gratitude, interest, ambition itself, are the chords
by which they will be bound to fidelity and sympathy with the great mass
of the people. It is possible that these may all be insufficient to
control the caprice and wickedness of man. But are they not all that
government will admit, and that human prudence can devise? Are they not
the genuine and the characteristic means by which republican government
provides for the liberty and happiness of the people? Are they not the
identical means on which every State government in the Union relies for
the attainment of these important ends? What then are we to understand
by the objection which this paper has combated? What are we to say to
the men who profess the most flaming zeal for republican government, yet
boldly impeach the fundamental principle of it; who pretend to be
champions for the right and the capacity of the people to choose their
own rulers, yet maintain that they will prefer those only who will
immediately and infallibly betray the trust committed to them?
Were the objection to be read by one who had not seen the mode
prescribed by the Constitution for the choice of representatives, he
could suppose nothing less than that some unreasonable qualification of
property was annexed to the right of suffrage; or that the right of
eligibility was limited to persons of particular families or fortunes;
or at least that the mode prescribed by the State constitutions was in
some respect or other, very grossly departed from. We have seen how far
such a supposition would err, as to the two first points. Nor would it,
in fact, be less erroneous as to the last. The only difference
discoverable between the two cases is, that each representative of the
United States will be elected by five or six thousand citizens; whilst
in the individual States, the election of a representative is left to
about as many hundreds. Will it be pretended that this difference is
sufficient to justify an attachment to the State governments, and an
abhorrence to the federal government? If this be the point on which the
objection turns, it deserves to be examined.
Is it supported by REASON? This cannot be said, without maintaining that
five or six thousand citizens are less capable of choosing a fit
representative, or more liable to be corrupted by an unfit one, than
five or six hundred. Reason, on the contrary, assures us, that as in so
great a number a fit representative would be most likely to be found, so
the choice would be less likely to be diverted from him by the intrigues
of the ambitious or the ambitious or the bribes of the rich.
Is the CONSEQUENCE from this doctrine admissible? If we say that five or
six hundred citizens are as many as can jointly exercise their right of
suffrage, must we not deprive the people of the immediate choice of
their public servants, in every instance where the administration of the
government does not require as many of them as will amount to one for
that number of citizens?
Is the doctrine warranted by FACTS? It was shown in the last paper, that
the real representation in the British House of Commons very little
exceeds the proportion of one for every thirty thousand inhabitants.
Besides a variety of powerful causes not existing here, and which favor
in that country the pretensions of rank and wealth, no person is
eligible as a representative of a county, unless he possess real estate
of the clear value of six hundred pounds sterling per year; nor of a
city or borough, unless he possess a like estate of half that annual
value. To this qualification on the part of the county representatives
is added another on the part of the county electors, which restrains the
right of suffrage to persons having a freehold estate of the annual
value of more than twenty pounds sterling, according to the present rate
of money. Notwithstanding these unfavorable circumstances, and
notwithstanding some very unequal laws in the British code, it cannot be
said that the representatives of the nation have elevated the few on the
ruins of the many.
But we need not resort to foreign experience on this subject. Our own is
explicit and decisive. The districts in New Hampshire in which the
senators are chosen immediately by the people, are nearly as large as
will be necessary for her representatives in the Congress. Those of
Massachusetts are larger than will be necessary for that purpose; and
those of New York still more so. In the last State the members of
Assembly for the cities and counties of New York and Albany are elected
by very nearly as many voters as will be entitled to a representative in
the Congress, calculating on the number of sixty-five representatives
only. It makes no difference that in these senatorial districts and
counties a number of representatives are voted for by each elector at
the same time. If the same electors at the same time are capable of
choosing four or five representatives, they cannot be incapable of
choosing one. Pennsylvania is an additional example. Some of her
counties, which elect her State representatives, are almost as large as
her districts will be by which her federal representatives will be
elected. The city of Philadelphia is supposed to contain between fifty
and sixty thousand souls. It will therefore form nearly two districts
for the choice of federal representatives. It forms, however, but one
county, in which every elector votes for each of its representatives in
the State legislature. And what may appear to be still more directly to
our purpose, the whole city actually elects a SINGLE MEMBER for the
executive council. This is the case in all the other counties of the
State.
Are not these facts the most satisfactory proofs of the fallacy which
has been employed against the branch of the federal government under
consideration? Has it appeared on trial that the senators of New
Hampshire, Massachusetts, and New York, or the executive council of
Pennsylvania, or the members of the Assembly in the two last States,
have betrayed any peculiar disposition to sacrifice the many to the few,
or are in any respect less worthy of their places than the
representatives and magistrates appointed in other States by very small
divisions of the people?
But there are cases of a stronger complexion than any which I have yet
quoted. One branch of the legislature of Connecticut is so constituted
that each member of it is elected by the whole State. So is the governor
of that State, of Massachusetts, and of this State, and the president of
New Hampshire. I leave every man to decide whether the result of any one
of these experiments can be said to countenance a suspicion, that a
diffusive mode of choosing representatives of the people tends to
elevate traitors and to undermine the public liberty.
PUBLIUS
FEDERALIST No. 58
Objection That The Number of Members Will Not Be Augmented as the
Progress of Population Demands Considered
For the Independent Journal
Wednesday, February 20, 1788
MADISON
To the People of the State of New York:
THE remaining charge against the House of Representatives, which I am to
examine, is grounded on a supposition that the number of members will
not be augmented from time to time, as the progress of population may
demand.
It has been admitted, that this objection, if well supported, would have
great weight. The following observations will show that, like most other
objections against the Constitution, it can only proceed from a partial
view of the subject, or from a jealousy which discolors and disfigures
every object which is beheld.
1. Those who urge the objection seem not to have recollected that the
federal Constitution will not suffer by a comparison with the State
constitutions, in the security provided for a gradual augmentation of
the number of representatives. The number which is to prevail in the
first instance is declared to be temporary. Its duration is limited to
the short term of three years.
Within every successive term of ten years a census of inhabitants is to
be repeated. The unequivocal objects of these regulations are, first, to
readjust, from time to time, the apportionment of representatives to the
number of inhabitants, under the single exception that each State shall
have one representative at least; secondly, to augment the number of
representatives at the same periods, under the sole limitation that the
whole number shall not exceed one for every thirty thousand inhabitants.
If we review the constitutions of the several States, we shall find that
some of them contain no determinate regulations on this subject, that
others correspond pretty much on this point with the federal
Constitution, and that the most effectual security in any of them is
resolvable into a mere directory provision.
2. As far as experience has taken place on this subject, a gradual
increase of representatives under the State constitutions has at least
kept pace with that of the constituents, and it appears that the former
have been as ready to concur in such measures as the latter have been to
call for them.
3. There is a peculiarity in the federal Constitution which insures a
watchful attention in a majority both of the people and of their
representatives to a constitutional augmentation of the latter. The
peculiarity lies in this, that one branch of the legislature is a
representation of citizens, the other of the States: in the former,
consequently, the larger States will have most weight; in the latter,
the advantage will be in favor of the smaller States. From this
circumstance it may with certainty be inferred that the larger States
will be strenuous advocates for increasing the number and weight of that
part of the legislature in which their influence predominates. And it so
happens that four only of the largest will have a majority of the whole
votes in the House of Representatives. Should the representatives or
people, therefore, of the smaller States oppose at any time a reasonable
addition of members, a coalition of a very few States will be sufficient
to overrule the opposition; a coalition which, notwithstanding the
rivalship and local prejudices which might prevent it on ordinary
occasions, would not fail to take place, when not merely prompted by
common interest, but justified by equity and the principles of the
Constitution.
It may be alleged, perhaps, that the Senate would be prompted by like
motives to an adverse coalition; and as their concurrence would be
indispensable, the just and constitutional views of the other branch
might be defeated. This is the difficulty which has probably created the
most serious apprehensions in the jealous friends of a numerous
representation. Fortunately it is among the difficulties which, existing
only in appearance, vanish on a close and accurate inspection. The
following reflections will, if I mistake not, be admitted to be
conclusive and satisfactory on this point.
Notwithstanding the equal authority which will subsist between the two
houses on all legislative subjects, except the originating of money
bills, it cannot be doubted that the House, composed of the greater
number of members, when supported by the more powerful States, and
speaking the known and determined sense of a majority of the people,
will have no small advantage in a question depending on the comparative
firmness of the two houses.
This advantage must be increased by the consciousness, felt by the same
side of being supported in its demands by right, by reason, and by the
Constitution; and the consciousness, on the opposite side, of contending
against the force of all these solemn considerations.
It is farther to be considered, that in the gradation between the
smallest and largest States, there are several, which, though most
likely in general to arrange themselves among the former are too little
removed in extent and population from the latter, to second an
opposition to their just and legitimate pretensions. Hence it is by no
means certain that a majority of votes, even in the Senate, would be
unfriendly to proper augmentations in the number of representatives.
It will not be looking too far to add, that the senators from all the
new States may be gained over to the just views of the House of
Representatives, by an expedient too obvious to be overlooked. As these
States will, for a great length of time, advance in population with
peculiar rapidity, they will be interested in frequent reapportionments
of the representatives to the number of inhabitants. The large States,
therefore, who will prevail in the House of Representatives, will have
nothing to do but to make reapportionments and augmentations mutually
conditions of each other; and the senators from all the most growing
States will be bound to contend for the latter, by the interest which
their States will feel in the former.
These considerations seem to afford ample security on this subject, and
ought alone to satisfy all the doubts and fears which have been indulged
with regard to it. Admitting, however, that they should all be
insufficient to subdue the unjust policy of the smaller States, or their
predominant influence in the councils of the Senate, a constitutional
and infallible resource still remains with the larger States, by which
they will be able at all times to accomplish their just purposes. The
House of Representatives cannot only refuse, but they alone can propose,
the supplies requisite for the support of government. They, in a word,
hold the purse -- that powerful instrument by which we behold, in the
history of the British Constitution, an infant and humble representation
of the people gradually enlarging the sphere of its activity and
importance, and finally reducing, as far as it seems to have wished, all
the overgrown prerogatives of the other branches of the government. This
power over the purse may, in fact, be regarded as the most complete and
effectual weapon with which any constitution can arm the immediate
representatives of the people, for obtaining a redress of every
grievance, and for carrying into effect every just and salutary measure.
But will not the House of Representatives be as much interested as the
Senate in maintaining the government in its proper functions, and will
they not therefore be unwilling to stake its existence or its reputation
on the pliancy of the Senate? Or, if such a trial of firmness between
the two branches were hazarded, would not the one be as likely first to
yield as the other? These questions will create no difficulty with those
who reflect that in all cases the smaller the number, and the more
permanent and conspicuous the station, of men in power, the stronger
must be the interest which they will individually feel in whatever
concerns the government. Those who represent the dignity of their
country in the eyes of other nations, will be particularly sensible to
every prospect of public danger, or of dishonorable stagnation in public
affairs. To those causes we are to ascribe the continual triumph of the
British House of Commons over the other branches of the government,
whenever the engine of a money bill has been employed. An absolute
inflexibility on the side of the latter, although it could not have
failed to involve every department of the state in the general
confusion, has neither been apprehended nor experienced. The utmost
degree of firmness that can be displayed by the federal Senate or
President, will not be more than equal to a resistance in which they
will be supported by constitutional and patriotic principles.
In this review of the Constitution of the House of Representatives, I
have passed over the circumstances of economy, which, in the present
state of affairs, might have had some effect in lessening the temporary
number of representatives, and a disregard of which would probably have
been as rich a theme of declamation against the Constitution as has been
shown by the smallness of the number proposed. I omit also any remarks
on the difficulty which might be found, under present circumstances, in
engaging in the federal service a large number of such characters as the
people will probably elect. One observation, however, I must be
permitted to add on this subject as claiming, in my judgment, a very
serious attention. It is, that in all legislative assemblies the greater
the number composing them may be, the fewer will be the men who will in
fact direct their proceedings. In the first place, the more numerous an
assembly may be, of whatever characters composed, the greater is known
to be the ascendency of passion over reason. In the next place, the
larger the number, the greater will be the proportion of members of
limited information and of weak capacities. Now, it is precisely on
characters of this description that the eloquence and address of the few
are known to act with all their force. In the ancient republics, where
the whole body of the people assembled in person, a single orator, or an
artful statesman, was generally seen to rule with as complete a sway as
if a sceptre had been placed in his single hand. On the same principle,
the more multitudinous a representative assembly may be rendered, the
more it will partake of the infirmities incident to collective meetings
of the people. Ignorance will be the dupe of cunning, and passion the
slave of sophistry and declamation. The people can never err more than
in supposing that by multiplying their representatives beyond a certain
limit, they strengthen the barrier against the government of a few.
Experience will forever admonish them that, on the contrary, AFTER
SECURING A SUFFICIENT NUMBER FOR THE PURPOSES OF SAFETY, OF LOCAL
INFORMATION, AND OF DIFFUSIVE SYMPATHY WITH THE WHOLE SOCIETY, they will
counteract their own views by every addition to their representatives.
The countenance of the government may become more democratic, but the
soul that animates it will be more oligarchic. The machine will be
enlarged, but the fewer, and often the more secret, will be the springs
by which its motions are directed.
As connected with the objection against the number of representatives,
may properly be here noticed, that which has been suggested against the
number made competent for legislative business. It has been said that
more than a majority ought to have been required for a quorum; and in
particular cases, if not in all, more than a majority of a quorum for a
decision. That some advantages might have resulted from such a
precaution, cannot be denied. It might have been an additional shield to
some particular interests, and another obstacle generally to hasty and
partial measures. But these considerations are outweighed by the
inconveniences in the opposite scale. In all cases where justice or the
general good might require new laws to be passed, or active measures to
be pursued, the fundamental principle of free government would be
reversed. It would be no longer the majority that would rule: the power
would be transferred to the minority. Were the defensive privilege
limited to particular cases, an interested minority might take advantage
of it to screen themselves from equitable sacrifices to the general
weal, or, in particular emergencies, to extort unreasonable indulgences.
Lastly, it would facilitate and foster the baneful practice of
secessions; a practice which has shown itself even in States where a
majority only is required; a practice subversive of all the principles
of order and regular government; a practice which leads more directly to
public convulsions, and the ruin of popular governments, than any other
which has yet been displayed among us.
PUBLIUS
FEDERALIST No. 59
Concerning the Power of Congress to Regulate the Election of Members
From the New York Packet.
Friday, February 22, 1788.
HAMILTON
To the People of the State of New York:
THE natural order of the subject leads us to consider, in this place,
that provision of the Constitution which authorizes the national
legislature to regulate, in the last resort, the election of its own
members. It is in these words: "The TIMES, PLACES, and MANNER of holding
elections for senators and representatives shall be prescribed in each
State by the legislature thereof; but the Congress may, at any time, by
law, make or alter SUCH REGULATIONS, except as to the PLACES of choosing
senators."[1] This provision has not only been declaimed against by
those who condemn the Constitution in the gross, but it has been
censured by those who have objected with less latitude and greater
moderation; and, in one instance it has been thought exceptionable by a
gentleman who has declared himself the advocate of every other part of
the system.
I am greatly mistaken, notwithstanding, if there be any article in the
whole plan more completely defensible than this. Its propriety rests
upon the evidence of this plain proposition, that EVERY GOVERNMENT OUGHT
TO CONTAIN IN ITSELF THE MEANS OF ITS OWN PRESERVATION. Every just
reasoner will, at first sight, approve an adherence to this rule, in the
work of the convention; and will disapprove every deviation from it
which may not appear to have been dictated by the necessity of
incorporating into the work some particular ingredient, with which a
rigid conformity to the rule was incompatible. Even in this case, though
he may acquiesce in the necessity, yet he will not cease to regard and
to regret a departure from so fundamental a principle, as a portion of
imperfection in the system which may prove the seed of future weakness,
and perhaps anarchy.
It will not be alleged, that an election law could have been framed and
inserted in the Constitution, which would have been always applicable to
every probable change in the situation of the country; and it will
therefore not be denied, that a discretionary power over elections ought
to exist somewhere. It will, I presume, be as readily conceded, that
there were only three ways in which this power could have been
reasonably modified and disposed: that it must either have been lodged
wholly in the national legislature, or wholly in the State legislatures,
or primarily in the latter and ultimately in the former. The last mode
has, with reason, been preferred by the convention. They have submitted
the regulation of elections for the federal government, in the first
instance, to the local administrations; which, in ordinary cases, and
when no improper views prevail, may be both more convenient and more
satisfactory; but they have reserved to the national authority a right
to interpose, whenever extraordinary circumstances might render that
interposition necessary to its safety.
Nothing can be more evident, than that an exclusive power of regulating
elections for the national government, in the hands of the State
legislatures, would leave the existence of the Union entirely at their
mercy. They could at any moment annihilate it, by neglecting to provide
for the choice of persons to administer its affairs. It is to little
purpose to say, that a neglect or omission of this kind would not be
likely to take place. The constitutional possibility of the thing,
without an equivalent for the risk, is an unanswerable objection. Nor
has any satisfactory reason been yet assigned for incurring that risk.
The extravagant surmises of a distempered jealousy can never be
dignified with that character. If we are in a humor to presume abuses of
power, it is as fair to presume them on the part of the State
governments as on the part of the general government. And as it is more
consonant to the rules of a just theory, to trust the Union with the
care of its own existence, than to transfer that care to any other
hands, if abuses of power are to be hazarded on the one side or on the
other, it is more rational to hazard them where the power would
naturally be placed, than where it would unnaturally be placed.
Suppose an article had been introduced into the Constitution, empowering
the United States to regulate the elections for the particular States,
would any man have hesitated to condemn it, both as an unwarrantable
transposition of power, and as a premeditated engine for the destruction
of the State governments? The violation of principle, in this case,
would have required no comment; and, to an unbiased observer, it will
not be less apparent in the project of subjecting the existence of the
national government, in a similar respect, to the pleasure of the State
governments. An impartial view of the matter cannot fail to result in a
conviction, that each, as far as possible, ought to depend on itself for
its own preservation.
As an objection to this position, it may be remarked that the
constitution of the national Senate would involve, in its full extent,
the danger which it is suggested might flow from an exclusive power in
the State legislatures to regulate the federal elections. It may be
alleged, that by declining the appointment of Senators, they might at
any time give a fatal blow to the Union; and from this it may be
inferred, that as its existence would be thus rendered dependent upon
them in so essential a point, there can be no objection to intrusting
them with it in the particular case under consideration. The interest of
each State, it may be added, to maintain its representation in the
national councils, would be a complete security against an abuse of the
trust.
This argument, though specious, will not, upon examination, be found
solid. It is certainly true that the State legislatures, by forbearing
the appointment of senators, may destroy the national government. But it
will not follow that, because they have a power to do this in one
instance, they ought to have it in every other. There are cases in which
the pernicious tendency of such a power may be far more decisive,
without any motive equally cogent with that which must have regulated
the conduct of the convention in respect to the formation of the Senate,
to recommend their admission into the system. So far as that
construction may expose the Union to the possibility of injury from the
State legislatures, it is an evil; but it is an evil which could not
have been avoided without excluding the States, in their political
capacities, wholly from a place in the organization of the national
government. If this had been done, it would doubtless have been
interpreted into an entire dereliction of the federal principle; and
would certainly have deprived the State governments of that absolute
safeguard which they will enjoy under this provision. But however wise
it may have been to have submitted in this instance to an inconvenience,
for the attainment of a necessary advantage or a greater good, no
inference can be drawn from thence to favor an accumulation of the evil,
where no necessity urges, nor any greater good invites.
It may be easily discerned also that the national government would run a
much greater risk from a power in the State legislatures over the
elections of its House of Representatives, than from their power of
appointing the members of its Senate. The senators are to be chosen for
the period of six years; there is to be a rotation, by which the seats
of a third part of them are to be vacated and replenished every two
years; and no State is to be entitled to more than two senators; a
quorum of the body is to consist of sixteen members. The joint result of
these circumstances would be, that a temporary combination of a few
States to intermit the appointment of senators, could neither annul the
existence nor impair the activity of the body; and it is not from a
general and permanent combination of the States that we can have any
thing to fear. The first might proceed from sinister designs in the
leading members of a few of the State legislatures; the last would
suppose a fixed and rooted disaffection in the great body of the people,
which will either never exist at all, or will, in all probability,
proceed from an experience of the inaptitude of the general government
to the advancement of their happiness in which event no good citizen
could desire its continuance.
But with regard to the federal House of Representatives, there is
intended to be a general election of members once in two years. If the
State legislatures were to be invested with an exclusive power of
regulating these elections, every period of making them would be a
delicate crisis in the national situation, which might issue in a
dissolution of the Union, if the leaders of a few of the most important
States should have entered into a previous conspiracy to prevent an
election.
I shall not deny, that there is a degree of weight in the observation,
that the interests of each State, to be represented in the federal
councils, will be a security against the abuse of a power over its
elections in the hands of the State legislatures. But the security will
not be considered as complete, by those who attend to the force of an
obvious distinction between the interest of the people in the public
felicity, and the interest of their local rulers in the power and
consequence of their offices. The people of America may be warmly
attached to the government of the Union, at times when the particular
rulers of particular States, stimulated by the natural rivalship of
power, and by the hopes of personal aggrandizement, and supported by a
strong faction in each of those States, may be in a very opposite
temper. This diversity of sentiment between a majority of the people,
and the individuals who have the greatest credit in their councils, is
exemplified in some of the States at the present moment, on the present
question. The scheme of separate confederacies, which will always
nultiply the chances of ambition, will be a never failing bait to all
such influential characters in the State administrations as are capable
of preferring their own emolument and advancement to the public weal.
With so effectual a weapon in their hands as the exclusive power of
regulating elections for the national government, a combination of a few
such men, in a few of the most considerable States, where the temptation
will always be the strongest, might accomplish the destruction of the
Union, by seizing the opportunity of some casual dissatisfaction among
the people (and which perhaps they may themselves have excited), to
discontinue the choice of members for the federal House of
Representatives. It ought never to be forgotten, that a firm union of
this country, under an efficient government, will probably be an
increasing object of jealousy to more than one nation of Europe; and
that enterprises to subvert it will sometimes originate in the intrigues
of foreign powers, and will seldom fail to be patronized and abetted by
some of them. Its preservation, therefore ought in no case that can be
avoided, to be committed to the guardianship of any but those whose
situation will uniformly beget an immediate interest in the faithful and
vigilant performance of the trust.
PUBLIUS
1. 1st clause, 4th section, of the 1st article.
FEDERALIST No. 60
The Same Subject Continued
(Concerning the Power of Congress to Regulate the Election of Members)
From the Independent Journal.
Saturday, February 23, 1788.
HAMILTON
To the People of the State of New York:
WE HAVE seen, that an uncontrollable power over the elections to the
federal government could not, without hazard, be committed to the State
legislatures. Let us now see, what would be the danger on the other
side; that is, from confiding the ultimate right of regulating its own
elections to the Union itself. It is not pretended, that this right
would ever be used for the exclusion of any State from its share in the
representation. The interest of all would, in this respect at least, be
the security of all. But it is alleged, that it might be employed in
such a manner as to promote the election of some favorite class of men
in exclusion of others, by confining the places of election to
particular districts, and rendering it impracticable to the citizens at
large to partake in the choice. Of all chimerical suppositions, this
seems to be the most chimerical. On the one hand, no rational
calculation of probabilities would lead us to imagine that the
disposition which a conduct so violent and extraordinary would imply,
could ever find its way into the national councils; and on the other, it
may be concluded with certainty, that if so improper a spirit should
ever gain admittance into them, it would display itself in a form
altogether different and far more decisive.
The improbability of the attempt may be satisfactorily inferred from
this single reflection, that it could never be made without causing an
immediate revolt of the great body of the people, headed and directed by
the State governments. It is not difficult to conceive that this
characteristic right of freedom may, in certain turbulent and factious
seasons, be violated, in respect to a particular class of citizens, by a
victorious and overbearing majority; but that so fundamental a
privilege, in a country so situated and enlightened, should be invaded
to the prejudice of the great mass of the people, by the deliberate
policy of the government, without occasioning a popular revolution, is
altogether inconceivable and incredible.
In addition to this general reflection, there are considerations of a
more precise nature, which forbid all apprehension on the subject. The
dissimilarity in the ingredients which will compose the national
government, and Õstill more in the manner in which they will be brought
into action in its various branches, must form a powerful obstacle to a
concert of views in any partial scheme of elections. There is sufficient
diversity in the state of property, in the genius, manners, and habits
of the people of the different parts of the Union, to occasion a
material diversity of disposition in their representatives towards the
different ranks and conditions in society. And though an intimate
intercourse under the same government will promote a gradual
assimilation in some of these respects, yet there are causes, as well
physical as moral, which may, in a greater or less degree, permanently
nourish different propensities and inclinations in this respect. But the
circumstance which will be likely to have the greatest influence in the
matter, will be the dissimilar modes of constituting the several
component parts of the government. The House of Representatives being to
be elected immediately by the people, the Senate by the State
legislatures, the President by electors chosen for that purpose by the
people, there would be little probability of a common interest to cement
these different branches in a predilection for any particular class of
electors.
As to the Senate, it is impossible that any regulation of "time and
manner," which is all that is proposed to be submitted to the national
government in respect to that body, can affect the spirit which will
direct the choice of its members. The collective sense of the State
legislatures can never be influenced by extraneous circumstances of that
sort; a consideration which alone ought to satisfy us that the
discrimination apprehended would never be attempted. For what inducement
could the Senate have to concur in a preference in which itself would
not be included? Or to what purpose would it be established, in
reference to one branch of the legislature, if it could not be extended
to the other? The composition of the one would in this case counteract
that of the other. And we can never suppose that it would embrace the
appointments to the Senate, unless we can at the same time suppose the
voluntary co-operation of the State legislatures. If we make the latter
supposition, it then becomes immaterial where the power in question is
placed -- whether in their hands or in those of the Union.
But what is to be the object of this capricious partiality in the
national councils? Is it to be exercised in a discrimination between the
different departments of industry, or between the different kinds of
property, or between the different degrees of property? Will it lean in
favor of the landed interest, or the moneyed interest, or the mercantile
interest, or the manufacturing interest? Or, to speak in the fashionable
language of the adversaries to the Constitution, will it court the
elevation of "the wealthy and the well-born," to the exclusion and
debasement of all the rest of the society?
If this partiality is to be exerted in favor of those who are concerned
in any particular description of industry or property, I presume it will
readily be admitted, that the competition for it will lie between landed
men and merchants. And I scruple not to affirm, that it is infinitely
less likely that either of them should gain an ascendant in the national
councils, than that the one or the other of them should predominate in
all the local councils. The inference will be, that a conduct tending to
give an undue preference to either is much less to be dreaded from the
former than from the latter.
The several States are in various degrees addicted to agriculture and
commerce. In most, if not all of them, agriculture is predominant. In a
few of them, however, commerce nearly divides its empire, and in most of
them has a considerable share of influence. In proportion as either
prevails, it will be conveyed into the national representation; and for
the very reason, that this will be an emanation from a greater variety
of interests, and in much more various proportions, than are to be found
in any single State, it will be much less apt to espouse either of them
with a decided partiality, than the representation of any single State.
In a country consisting chiefly of the cultivators of land, where the
rules of an equal representation obtain, the landed interest must, upon
the whole, preponderate in the government. As long as this interest
prevails in most of the State legislatures, so long it must maintain a
correspondent superiority in the national Senate, which will generally
be a faithful copy of the majorities of those assemblies. It cannot
therefore be presumed, that a sacrifice of the landed to the mercantile
class will ever be a favorite object of this branch of the federal
legislature. In applying thus particularly to the Senate a general
observation suggested by the situation of the country, I am governed by
the consideration, that the credulous votaries of State power cannot,
upon their own principles, suspect, that the State legislatures would be
warped from their duty by any external influence. But in reality the
same situation must have the same effect, in the primative composition
at least of the federal House of Representatives: an improper bias
towards the mercantile class is as little to be expected from this
quarter as from the other.
In order, perhaps, to give countenance to the objection at any rate, it
may be asked, is there not danger of an opposite bias in the national
government, which may dispose it to endeavor to secure a monopoly of the
federal administration to the landed class? As there is little
likelihood that the supposition of such a bias will have any terrors for
those who would be immediately injured by it, a labored answer to this
question will be dispensed with. It will be sufficient to remark, first,
that for the reasons elsewhere assigned, it is less likely that any
decided partiality should prevail in the councils of the Union than in
those of any of its members. Secondly, that there would be no temptation
to violate the Constitution in favor of the landed class, because that
class would, in the natural course of things, enjoy as great a
preponderancy as itself could desire. And thirdly, that men accustomed
to investigate the sources of public prosperity upon a large scale, must
be too well convinced of the utility of commerce, to be inclined to
inflict upon it so deep a wound as would result from the entire
exclusion of those who would best understand its interest from a share
in the management of them. The importance of commerce, in the view of
revenue alone, must effectually guard it against the enmity of a body
which would be continually importuned in its favor, by the urgent calls
of public necessity.
I the rather consult brevity in discussing the probability of a
preference founded upon a discrimination between the different kinds of
industry and property, because, as far as I understand the meaning of
the objectors, they contemplate a discrimination of another kind. They
appear to have in view, as the objects of the preference with which they
endeavor to alarm us, those whom they designate by the description of
"the wealthy and the well-born." These, it seems, are to be exalted to
an odious pre-eminence over the rest of their fellow-citizens. At one
time, however, their elevation is to be a necessary consequence of the
smallness of the representative body; at another time it is to be
effected by depriving the people at large of the opportunity of
exercising their right of suffrage in the choice of that body.
But upon what principle is the discrimination of the places of election
to be made, in order to answer the purpose of the meditated preference?
Are "the wealthy and the well-born," as they are called, confined to
particular spots in the several States? Have they, by some miraculous
instinct or foresight, set apart in each of them a common place of
residence? Are they only to be met with in the towns or cities? Or are
they, on the contrary, scattered over the face of the country as avarice
or chance may have happened to cast their own lot or that of their
predecessors? If the latter is the case, (as every intelligent man knows
it to be,[1]) is it not evident that the policy of confining the places
of election to particular districts would be as subversive of its own
aim as it would be exceptionable on every other account? The truth is,
that there is no method of securing to the rich the preference
apprehended, but by prescribing qualifications of property either for
those who may elect or be elected. But this forms no part of the power
to be conferred upon the national government. Its authority would be
expressly restricted to the regulation of the TIMES, the PLACES, the
MANNER of elections. The qualifications of the persons who may choose or
be chosen, as has been remarked upon other occasions, are defined and
fixed in the Constitution, and are unalterable by the legislature.
Let it, however, be admitted, for argument sake, that the expedient
suggested might be successful; and let it at the same time be equally
taken for granted that all the scruples which a sense of duty or an
apprehension of the danger of the experiment might inspire, were
overcome in the breasts of the national rulers, still I imagine it will
hardly be pretended that they could ever hope to carry such an
enterprise into execution without the aid of a military force sufficient
to subdue the resistance of the great body of the people. The
improbability of the existence of a force equal to that object has been
discussed and demonstrated in different parts of these papers; but that
the futility of the objection under consideration may appear in the
strongest light, it shall be conceded for a moment that such a force
might exist, and the national government shall be supposed to be in the
actual possession of it. What will be the conclusion? With a disposition
to invade the essential rights of the community, and with the means of
gratifying that disposition, is it presumable that the persons who were
actuated by it would amuse themselves in the ridiculous task of
fabricating election laws for securing a preference to a favorite class
of men? Would they not be likely to prefer a conduct better adapted to
their own immediate aggrandizement? Would they not rather boldly resolve
to perpetuate themselves in office by one decisive act of usurpation,
than to trust to precarious expedients which, in spite of all the
precautions that might accompany them, might terminate in the
dismission, disgrace, and ruin of their authors? Would they not fear
that citizens, not less tenacious than conscious of their rights, would
flock from the remote extremes of their respective States to the places
of election, to voerthrow their tyrants, and to substitute men who would
be disposed to avenge the violated majesty of the people?
PUBLIUS
1. Particularly in the Southern States and in this State.