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