PUBLIUS
____
FEDERALIST No. 44
Restrictions on the Authority of the Several States
From the New York Packet.
Friday, January 25, 1788.
MADISON
To the People of the State of New York:
A FIFTH class of provisions in favor of the federal authority consists
of the following restrictions on the authority of the several States:
1. "No State shall enter into any treaty, alliance, or confederation;
grant letters of marque and reprisal; coin money; emit bills of credit;
make any thing but gold and silver a legal tender in payment of debts;
pass any bill of attainder, ex post facto law, or law impairing the
obligation of contracts; or grant any title of nobility."
The prohibition against treaties, alliances, and confederations makes a
part of the existing articles of Union; and for reasons which need no
explanation, is copied into the new Constitution. The prohibition of
letters of marque is another part of the old system, but is somewhat
extended in the new. According to the former, letters of marque could be
granted by the States after a declaration of war; according to the
latter, these licenses must be obtained, as well during war as previous
to its declaration, from the government of the United States. This
alteration is fully justified by the advantage of uniformity in all
points which relate to foreign powers; and of immediate responsibility
to the nation in all those for whose conduct the nation itself is to be
responsible.
The right of coining money, which is here taken from the States, was
left in their hands by the Confederation, as a concurrent right with
that of Congress, under an exception in favor of the exclusive right of
Congress to regulate the alloy and value. In this instance, also, the
new provision is an improvement on the old. Whilst the alloy and value
depended on the general authority, a right of coinage in the particular
States could have no other effect than to multiply expensive mints and
diversify the forms and weights of the circulating pieces. The latter
inconveniency defeats one purpose for which the power was originally
submitted to the federal head; and as far as the former might prevent an
inconvenient remittance of gold and silver to the central mint for
recoinage, the end can be as well attained by local mints established
under the general authority.
The extension of the prohibition to bills of credit must give pleasure
to every citizen, in proportion to his love of justice and his knowledge
of the true springs of public prosperity. The loss which America has
sustained since the peace, from the pestilent effects of paper money on
the necessary confidence between man and man, on the necessary
confidence in the public councils, on the industry and morals of the
people, and on the character of republican government, constitutes an
enormous debt against the States chargeable with this unadvised measure,
which must long remain unsatisfied; or rather an accumulation of guilt,
which can be expiated no otherwise than by a voluntary sacrifice on the
altar of justice, of the power which has been the instrument of it. In
addition to these persuasive considerations, it may be observed, that
the same reasons which show the necessity of denying to the States the
power of regulating coin, prove with equal force that they ought not to
be at liberty to substitute a paper medium in the place of coin. Had
every State a right to regulate the value of its coin, there might be as
many different currencies as States, and thus the intercourse among them
would be impeded; retrospective alterations in its value might be made,
and thus the citizens of other States be injured, and animosities be
kindled among the States themselves. The subjects of foreign powers
might suffer from the same cause, and hence the Union be discredited and
embroiled by the indiscretion of a single member. No one of these
mischiefs is less incident to a power in the States to emit paper money,
than to coin gold or silver. The power to make any thing but gold and
silver a tender in payment of debts, is withdrawn from the States, on
the same principle with that of issuing a paper currency.
Bills of attainder, ex post facto laws, and laws impairing the
obligation of contracts, are contrary to the first principles of the
social compact, and to every principle of sound legislation. The two
former are expressly prohibited by the declarations prefixed to some of
the State constitutions, and all of them are prohibited by the spirit
and scope of these fundamental charters. Our own experience has taught
us, nevertheless, that additional fences against these dangers ought not
to be omitted. Very properly, therefore, have the convention added this
constitutional bulwark in favor of personal security and private rights;
and I am much deceived if they have not, in so doing, as faithfully
consulted the genuine sentiments as the undoubted interests of their
constituents. The sober people of America are weary of the fluctuating
policy which has directed the public councils. They have seen with
regret and indignation that sudden changes and legislative
interferences, in cases affecting personal rights, become jobs in the
hands of enterprising and influential speculators, and snares to the
more-industrious and lessinformed part of the community. They have seen,
too, that one legislative interference is but the first link of a long
chain of repetitions, every subsequent interference being naturally
produced by the effects of the preceding. They very rightly infer,
therefore, that some thorough reform is wanting, which will banish
speculations on public measures, inspire a general prudence and
industry, and give a regular course to the business of society. The
prohibition with respect to titles of nobility is copied from the
articles of Confederation and needs no comment.
2. "No State shall, without the consent of the Congress, lay any imposts
or duties on imports or exports, except what may be absolutely necessary
for executing its inspection laws, and the net produce of all duties and
imposts laid by any State on imports or exports, shall be for the use of
the treasury of the United States; and all such laws shall be subject to
the revision and control of the Congress. No State shall, without the
consent of Congress, lay any duty on tonnage, keep troops or ships of
war in time of peace, enter into any agreement or compact with another
State, or with a foreign power, or engage in war unless actually
invaded, or in such imminent danger as will not admit of delay."
The restraint on the power of the States over imports and exports is
enforced by all the arguments which prove the necessity of submitting
the regulation of trade to the federal councils. It is needless,
therefore, to remark further on this head, than that the manner in which
the restraint is qualified seems well calculated at once to secure to
the States a reasonable discretion in providing for the conveniency of
their imports and exports, and to the United States a reasonable check
against the abuse of this discretion. The remaining particulars of this
clause fall within reasonings which are either so obvious, or have been
so fully developed, that they may be passed over without remark.
The SIXTH and last class consists of the several powers and provisions
by which efficacy is given to all the rest.
1. Of these the first is, the "power to make all laws which shall be
necessary and proper for carrying into execution the foregoing powers,
and all other powers vested by this Constitution in the government of
the United States, or in any department or officer thereof."
Few parts of the Constitution have been assailed with more intemperance
than this; yet on a fair investigation of it, no part can appear more
completely invulnerable. Without the SUBSTANCE of this power, the whole
Constitution would be a dead letter. Those who object to the article,
therefore, as a part of the Constitution, can only mean that the FORM of
the provision is improper. But have they considered whether a better
form could have been substituted?
There are four other possible methods which the Constitution might have
taken on this subject. They might have copied the second article of the
existing Confederation, which would have prohibited the exercise of any
power not EXPRESSLY delegated; they might have attempted a positive
enumeration of the powers comprehended under the general terms
"necessary and proper"; they might have attempted a negative enumeration
of them, by specifying the powers excepted from the general definition;
they might have been altogether silent on the subject, leaving these
necessary and proper powers to construction and inference.
Had the convention taken the first method of adopting the second article
of Confederation, it is evident that the new Congress would be
continually exposed, as their predecessors have been, to the alternative
of construing the term "EXPRESSLY" with so much rigor, as to disarm the
government of all real authority whatever, or with so much latitude as
to destroy altogether the force of the restriction. It would be easy to
show, if it were necessary, that no important power, delegated by the
articles of Confederation, has been or can be executed by Congress,
without recurring more or less to the doctrine of CONSTRUCTION or
IMPLICATION. As the powers delegated under the new system are more
extensive, the government which is to administer it would find itself
still more distressed with the alternative of betraying the public
interests by doing nothing, or of violating the Constitution by
exercising powers indispensably necessary and proper, but, at the same
time, not EXPRESSLY granted.
Had the convention attempted a positive enumeration of the powers
necessary and proper for carrying their other powers into effect, the
attempt would have involved a complete digest of laws on every subject
to which the Constitution relates; accommodated too, not only to the
existing state of things, but to all the possible changes which futurity
may produce; for in every new application of a general power, the
PARTICULAR POWERS, which are the means of attaining the OBJECT of the
general power, must always necessarily vary with that object, and be
often properly varied whilst the object remains the same.
Had they attempted to enumerate the particular powers or means not
necessary or proper for carrying the general powers into execution, the
task would have been no less chimerical; and would have been liable to
this further objection, that every defect in the enumeration would have
been equivalent to a positive grant of authority. If, to avoid this
consequence, they had attempted a partial enumeration of the exceptions,
and described the residue by the general terms, NOT NECESSARY OR PROPER,
it must have happened that the enumeration would comprehend a few of the
excepted powers only; that these would be such as would be least likely
to be assumed or tolerated, because the enumeration would of course
select such as would be least necessary or proper; and that the
unnecessary and improper powers included in the residuum, would be less
forcibly excepted, than if no partial enumeration had been made.
Had the Constitution been silent on this head, there can be no doubt
that all the particular powers requisite as means of executing the
general powers would have resulted to the government, by unavoidable
implication. No axiom is more clearly established in law, or in reason,
than that wherever the end is required, the means are authorized;
wherever a general power to do a thing is given, every particular power
necessary for doing it is included. Had this last method, therefore,
been pursued by the convention, every objection now urged against their
plan would remain in all its plausibility; and the real inconveniency
would be incurred of not removing a pretext which may be seized on
critical occasions for drawing into question the essential powers of the
Union.
If it be asked what is to be the consequence, in case the Congress shall
misconstrue this part of the Constitution, and exercise powers not
warranted by its true meaning, I answer, the same as if they should
misconstrue or enlarge any other power vested in them; as if the general
power had been reduced to particulars, and any one of these were to be
violated; the same, in short, as if the State legislatures should
violate the irrespective constitutional authorities. In the first
instance, the success of the usurpation will depend on the executive and
judiciary departments, which are to expound and give effect to the
legislative acts; and in the last resort a remedy must be obtained from
the people who can, by the election of more faithful representatives,
annul the acts of the usurpers. The truth is, that this ultimate redress
may be more confided in against unconstitutional acts of the federal
than of the State legislatures, for this plain reason, that as every
such act of the former will be an invasion of the rights of the latter,
these will be ever ready to mark the innovation, to sound the alarm to
the people, and to exert their local influence in effecting a change of
federal representatives. There being no such intermediate body between
the State legislatures and the people interested in watching the conduct
of the former, violations of the State constitutions are more likely to
remain unnoticed and unredressed.
2. "This Constitution and the laws of the United States which shall be
made in pursuance thereof, and all treaties made, or which shall be
made, under the authority of the United States, shall be the supreme law
of the land, and the judges in every State shall be bound thereby, any
thing in the constitution or laws of any State to the contrary
notwithstanding."
The indiscreet zeal of the adversaries to the Constitution has betrayed
them into an attack on this part of it also, without which it would have
been evidently and radically defective. To be fully sensible of this, we
need only suppose for a moment that the supremacy of the State
constitutions had been left complete by a saving clause in their favor.
In the first place, as these constitutions invest the State legislatures
with absolute sovereignty, in all cases not excepted by the existing
articles of Confederation, all the authorities contained in the proposed
Constitution, so far as they exceed those enumerated in the
Confederation, would have been annulled, and the new Congress would have
been reduced to the same impotent condition with their predecessors.
In the next place, as the constitutions of some of the States do not
even expressly and fully recognize the existing powers of the
Confederacy, an express saving of the supremacy of the former would, in
such States, have brought into question every power contained in the
proposed Constitution.
In the third place, as the constitutions of the States differ much from
each other, it might happen that a treaty or national law, of great and
equal importance to the States, would interfere with some and not with
other constitutions, and would consequently be valid in some of the
States, at the same time that it would have no effect in others.
In fine, the world would have seen, for the first time, a system of
government founded on an inversion of the fundamental principles of all
government; it would have seen the authority of the whole society every
where subordinate to the authority of the parts; it would have seen a
monster, in which the head was under the direction of the members.
3. "The Senators and Representatives, and the members of the several
State legislatures, and all executive and judicial officers, both of the
United States and the several States, shall be bound by oath or
affirmation to support this Constitution."
It has been asked why it was thought necessary, that the State
magistracy should be bound to support the federal Constitution, and
unnecessary that a like oath should be imposed on the officers of the
United States, in favor of the State constitutions.
Several reasons might be assigned for the distinction. I content myself
with one, which is obvious and conclusive. The members of the federal
government will have no agency in carrying the State constitutions into
effect. The members and officers of the State governments, on the
contrary, will have an essential agency in giving effect to the federal
Constitution. The election of the President and Senate will depend, in
all cases, on the legislatures of the several States. And the election
of the House of Representatives will equally depend on the same
authority in the first instance; and will, probably, forever be
conducted by the officers, and according to the laws, of the States.
4. Among the provisions for giving efficacy to the federal powers might
be added those which belong to the executive and judiciary departments:
but as these are reserved for particular examination in another place, I
pass them over in this.
We have now reviewed, in detail, all the articles composing the sum or
quantity of power delegated by the proposed Constitution to the federal
government, and are brought to this undeniable conclusion, that no part
of the power is unnecessary or improper for accomplishing the necessary
objects of the Union. The question, therefore, whether this amount of
power shall be granted or not, resolves itself into another question,
whether or not a government commensurate to the exigencies of the Union
shall be established; or, in other words, whether the Union itself shall
be preserved.
PUBLIUS
____
FEDERALIST No. 45
The Alleged Danger From the Powers of the Union to the State
Governments Considered
For the Independent Fournal.
Saturday, January 26, 1788
MADISON
To the People of the State of New York:
HAVING shown that no one of the powers transferred to the federal
government is unnecessary or improper, the next question to be
considered is, whether the whole mass of them will be dangerous to the
portion of authority left in the several States.
The adversaries to the plan of the convention, instead of considering in
the first place what degree of power was absolutely necessary for the
purposes of the federal government, have exhausted themselves in a
secondary inquiry into the possible consequences of the proposed degree
of power to the governments of the particular States. But if the Union,
as has been shown, be essential to the security of the people of America
against foreign danger; if it be essential to their security against
contentions and wars among the different States; if it be essential to
guard them against those violent and oppressive factions which embitter
the blessings of liberty, and against those military establishments
which must gradually poison its very fountain; if, in a word, the Union
be essential to the happiness of the people of America, is it not
preposterous, to urge as an objection to a government, without which the
objects of the Union cannot be attained, that such a government may
derogate from the importance of the governments of the individual
States? Was, then, the American Revolution effected, was the American
Confederacy formed, was the precious blood of thousands spilt, and the
hard-earned substance of millions lavished, not that the people of
America should enjoy peace, liberty, and safety, but that the government
of the individual States, that particular municipal establishments,
might enjoy a certain extent of power, and be arrayed with certain
dignities and attributes of sovereignty? We have heard of the impious
doctrine in the Old World, that the people were made for kings, not
kings for the people. Is the same doctrine to be revived in the New, in
another shape that the solid happiness of the people is to be sacrificed
to the views of political institutions of a different form? It is too
early for politicians to presume on our forgetting that the public good,
the real welfare of the great body of the people, is the supreme object
to be pursued; and that no form of government whatever has any other
value than as it may be fitted for the attainment of this object. Were
the plan of the convention adverse to the public happiness, my voice
would be, Reject the plan. Were the Union itself inconsistent with the
public happiness, it would be, Abolish the Union. In like manner, as far
as the sovereignty of the States cannot be reconciled to the happiness
of the people, the voice of every good citizen must be, Let the former
be sacrificed to the latter. How far the sacrifice is necessary, has
been shown. How far the unsacrificed residue will be endangered, is the
question before us.
Several important considerations have been touched in the course of
these papers, which discountenance the supposition that the operation of
the federal government will by degrees prove fatal to the State
governments. The more I revolve the subject, the more fully I am
persuaded that the balance is much more likely to be disturbed by the
preponderancy of the last than of the first scale.
We have seen, in all the examples of ancient and modern confederacies,
the strongest tendency continually betraying itself in the members, to
despoil the general government of its authorities, with a very
ineffectual capacity in the latter to defend itself against the
encroachments. Although, in most of these examples, the system has been
so dissimilar from that under consideration as greatly to weaken any
inference concerning the latter from the fate of the former, yet, as the
States will retain, under the proposed Constitution, a very extensive
portion of active sovereignty, the inference ought not to be wholly
disregarded. In the Achaean league it is probable that the federal head
had a degree and species of power, which gave it a considerable likeness
to the government framed by the convention. The Lycian Confederacy, as
far as its principles and form are transmitted, must have borne a still
greater analogy to it. Yet history does not inform us that either of
them ever degenerated, or tended to degenerate, into one consolidated
government. On the contrary, we know that the ruin of one of them
proceeded from the incapacity of the federal authority to prevent the
dissensions, and finally the disunion, of the subordinate authorities.
These cases are the more worthy of our attention, as the external causes
by which the component parts were pressed together were much more
numerous and powerful than in our case; and consequently less powerful
ligaments within would be sufficient to bind the members to the head,
and to each other.
In the feudal system, we have seen a similar propensity exemplified.
Notwithstanding the want of proper sympathy in every instance between
the local sovereigns and the people, and the sympathy in some instances
between the general sovereign and the latter, it usually happened that
the local sovereigns prevailed in the rivalship for encroachments. Had
no external dangers enforced internal harmony and subordination, and
particularly, had the local sovereigns possessed the affections of the
people, the great kingdoms in Europe would at this time consist of as
many independent princes as there were formerly feudatory barons.
The State governments will have the advantage of the Federal government,
whether we compare them in respect to the immediate dependence of the
one on the other; to the weight of personal influence which each side
will possess; to the powers respectively vested in them; to the
predilection and probable support of the people; to the disposition and
faculty of resisting and frustrating the measures of each other.
The State governments may be regarded as constituent and essential parts
of the federal government; whilst the latter is nowise essential to the
operation or organization of the former. Without the intervention of the
State legislatures, the President of the United States cannot be elected
at all. They must in all cases have a great share in his appointment,
and will, perhaps, in most cases, of themselves determine it. The Senate
will be elected absolutely and exclusively by the State legislatures.
Even the House of Representatives, though drawn immediately from the
people, will be chosen very much under the influence of that class of
men, whose influence over the people obtains for themselves an election
into the State legislatures. Thus, each of the principal branches of the
federal government will owe its existence more or less to the favor of
the State governments, and must consequently feel a dependence, which is
much more likely to beget a disposition too obsequious than too
overbearing towards them. On the other side, the component parts of the
State governments will in no instance be indebted for their appointment
to the direct agency of the federal government, and very little, if at
all, to the local influence of its members.
The number of individuals employed under the Constitution of the United
States will be much smaller than the number employed under the
particular States. There will consequently be less of personal influence
on the side of the former than of the latter. The members of the
legislative, executive, and judiciary departments of thirteen and more
States, the justices of peace, officers of militia, ministerial officers
of justice, with all the county, corporation, and town officers, for
three millions and more of people, intermixed, and having particular
acquaintance with every class and circle of people, must exceed, beyond
all proportion, both in number and influence, those of every description
who will be employed in the administration of the federal system.
Compare the members of the three great departments of the thirteen
States, excluding from the judiciary department the justices of peace,
with the members of the corresponding departments of the single
government of the Union; compare the militia officers of three millions
of people with the military and marine officers of any establishment
which is within the compass of probability, or, I may add, of
possibility, and in this view alone, we may pronounce the advantage of
the States to be decisive. If the federal government is to have
collectors of revenue, the State governments will have theirs also. And
as those of the former will be principally on the seacoast, and not very
numerous, whilst those of the latter will be spread over the face of the
country, and will be very numerous, the advantage in this view also lies
on the same side. It is true, that the Confederacy is to possess, and
may exercise, the power of collecting internal as well as external taxes
throughout the States; but it is probable that this power will not be
resorted to, except for supplemental purposes of revenue; that an option
will then be given to the States to supply their quotas by previous
collections of their own; and that the eventual collection, under the
immediate authority of the Union, will generally be made by the
officers, and according to the rules, appointed by the several States.
Indeed it is extremely probable, that in other instances, particularly
in the organization of the judicial power, the officers of the States
will be clothed with the correspondent authority of the Union. Should it
happen, however, that separate collectors of internal revenue should be
appointed under the federal government, the influence of the whole
number would not bear a comparison with that of the multitude of State
officers in the opposite scale. Within every district to which a federal
collector would be allotted, there would not be less than thirty or
forty, or even more, officers of different descriptions, and many of
them persons of character and weight, whose influence would lie on the
side of the State.
The powers delegated by the proposed Constitution to the federal
government, are few and defined. Those which are to remain in the State
governments are numerous and indefinite. The former will be exercised
principally on external objects, as war, peace, negotiation, and foreign
commerce; with which last the power of taxation will, for the most part,
be connected. The powers reserved to the several States will extend to
all the objects which, in the ordinary course of affairs, concern the
lives, liberties, and properties of the people, and the internal order,
improvement, and prosperity of the State.
The operations of the federal government will be most extensive and
important in times of war and danger; those of the State governments, in
times of peace and security. As the former periods will probably bear a
small proportion to the latter, the State governments will here enjoy
another advantage over the federal government. The more adequate,
indeed, the federal powers may be rendered to the national defense, the
less frequent will be those scenes of danger which might favor their
ascendancy over the governments of the particular States.
If the new Constitution be examined with accuracy and candor, it will be
found that the change which it proposes consists much less in the
addition of NEW POWERS to the Union, than in the invigoration of its
ORIGINAL POWERS. The regulation of commerce, it is true, is a new power;
but that seems to be an addition which few oppose, and from which no
apprehensions are entertained. The powers relating to war and peace,
armies and fleets, treaties and finance, with the other more
considerable powers, are all vested in the existing Congress by the
articles of Confederation. The proposed change does not enlarge these
powers; it only substitutes a more effectual mode of administering them.
The change relating to taxation may be regarded as the most important;
and yet the present Congress have as complete authority to REQUIRE of
the States indefinite supplies of money for the common defense and
general welfare, as the future Congress will have to require them of
individual citizens; and the latter will be no more bound than the
States themselves have been, to pay the quotas respectively taxed on
them. Had the States complied punctually with the articles of
Confederation, or could their compliance have been enforced by as
peaceable means as may be used with success towards single persons, our
past experience is very far from countenancing an opinion, that the
State governments would have lost their constitutional powers, and have
gradually undergone an entire consolidation. To maintain that such an
event would have ensued, would be to say at once, that the existence of
the State governments is incompatible with any system whatever that
accomplishes the essental purposes of the Union.
PUBLIUS
____
FEDERALIST No. 46
The Influence of the State and Federal Governments Compared
From the New York Packet.
Tuesday, January 29, 1788.
MADISON
To the People of the State of New York:
RESUMING the subject of the last paper, I proceed to inquire whether the
federal government or the State governments will have the advantage with
regard to the predilection and support of the people. Notwithstanding
the different modes in which they are appointed, we must consider both
of them as substantially dependent on the great body of the citizens of
the United States. I assume this position here as it respects the first,
reserving the proofs for another place. The federal and State
governments are in fact but different agents and trustees of the people,
constituted with different powers, and designed for different purposes.
The adversaries of the Constitution seem to have lost sight of the
people altogether in their reasonings on this subject; and to have
viewed these different establishments, not only as mutual rivals and
enemies, but as uncontrolled by any common superior in their efforts to
usurp the authorities of each other. These gentlemen must here be
reminded of their error. They must be told that the ultimate authority,
wherever the derivative may be found, resides in the people alone, and
that it will not depend merely on the comparative ambition or address of
the different governments, whether either, or which of them, will be
able to enlarge its sphere of jurisdiction at the expense of the other.
Truth, no less than decency, requires that the event in every case
should be supposed to depend on the sentiments and sanction of their
common constituents.
Many considerations, besides those suggested on a former occasion, seem
to place it beyond doubt that the first and most natural attachment of
the people will be to the governments of their respective States. Into
the administration of these a greater number of individuals will expect
to rise. From the gift of these a greater number of offices and
emoluments will flow. By the superintending care of these, all the more
domestic and personal interests of the people will be regulated and
provided for. With the affairs of these, the people will be more
familiarly and minutely conversant. And with the members of these, will
a greater proportion of the people have the ties of personal
acquaintance and friendship, and of family and party attachments; on the
side of these, therefore, the popular bias may well be expected most
strongly to incline.
Experience speaks the same language in this case. The federal
administration, though hitherto very defective in comparison with what
may be hoped under a better system, had, during the war, and
particularly whilst the independent fund of paper emissions was in
credit, an activity and importance as great as it can well have in any
future circumstances whatever. It was engaged, too, in a course of
measures which had for their object the protection of everything that
was dear, and the acquisition of everything that could be desirable to
the people at large. It was, nevertheless, invariably found, after the
transient enthusiasm for the early Congresses was over, that the
attention and attachment of the people were turned anew to their own
particular governments; that the federal council was at no time the idol
of popular favor; and that opposition to proposed enlargements of its
powers and importance was the side usually taken by the men who wished
to build their political consequence on the prepossessions of their
fellow-citizens.
If, therefore, as has been elsewhere remarked, the people should in
future become more partial to the federal than to the State governments,
the change can only result from such manifest and irresistible proofs of
a better administration, as will overcome all their antecedent
propensities. And in that case, the people ought not surely to be
precluded from giving most of their confidence where they may discover
it to be most due; but even in that case the State governments could
have little to apprehend, because it is only within a certain sphere
that the federal power can, in the nature of things, be advantageously
administered.
The remaining points on which I propose to compare the federal and State
governments, are the disposition and the faculty they may respectively
possess, to resist and frustrate the measures of each other.
It has been already proved that the members of the federal will be more
dependent on the members of the State governments, than the latter will
be on the former. It has appeared also, that the prepossessions of the
people, on whom both will depend, will be more on the side of the State
governments, than of the federal government. So far as the disposition
of each towards the other may be influenced by these causes, the State
governments must clearly have the advantage. But in a distinct and very
important point of view, the advantage will lie on the same side. The
prepossessions, which the members themselves will carry into the federal
government, will generally be favorable to the States; whilst it will
rarely happen, that the members of the State governments will carry into
the public councils a bias in favor of the general government. A local
spirit will infallibly prevail much more in the members of Congress,
than a national spirit will prevail in the legislatures of the
particular States. Every one knows that a great proportion of the errors
committed by the State legislatures proceeds from the disposition of the
members to sacrifice the comprehensive and permanent interest of the
State, to the particular and separate views of the counties or districts
in which they reside. And if they do not sufficiently enlarge their
policy to embrace the collective welfare of their particular State, how
can it be imagined that they will make the aggregate prosperity of the
Union, and the dignity and respectability of its government, the objects
of their affections and consultations? For the same reason that the
members of the State legislatures will be unlikely to attach themselves
sufficiently to national objects, the members of the federal legislature
will be likely to attach themselves too much to local objects. The
States will be to the latter what counties and towns are to the former.
Measures will too often be decided according to their probable effect,
not on the national prosperity and happiness, but on the prejudices,
interests, and pursuits of the governments and people of the individual
States. What is the spirit that has in general characterized the
proceedings of Congress? A perusal of their journals, as well as the
candid acknowledgments of such as have had a seat in that assembly, will
inform us, that the members have but too frequently displayed the
character, rather of partisans of their respective States, than of
impartial guardians of a common interest; that where on one occasion
improper sacrifices have been made of local considerations, to the
aggrandizement of the federal government, the great interests of the
nation have suffered on a hundred, from an undue attention to the local
prejudices, interests, and views of the particular States. I mean not by
these reflections to insinuate, that the new federal government will not
embrace a more enlarged plan of policy than the existing government may
have pursued; much less, that its views will be as confined as those of
the State legislatures; but only that it will partake sufficiently of
the spirit of both, to be disinclined to invade the rights of the
individual States, or the preorgatives of their governments. The motives
on the part of the State governments, to augment their prerogatives by
defalcations from the federal government, will be overruled by no
reciprocal predispositions in the members.
Were it admitted, however, that the Federal government may feel an equal
disposition with the State governments to extend its power beyond the
due limits, the latter would still have the advantage in the means of
defeating such encroachments. If an act of a particular State, though
unfriendly to the national government, be generally popular in that
State and should not too grossly violate the oaths of the State
officers, it is executed immediately and, of course, by means on the
spot and depending on the State alone. The opposition of the federal
government, or the interposition of federal officers, would but inflame
the zeal of all parties on the side of the State, and the evil could not
be prevented or repaired, if at all, without the employment of means
which must always be resorted to with reluctance and difficulty. On the
other hand, should an unwarrantable measure of the federal government be
unpopular in particular States, which would seldom fail to be the case,
or even a warrantable measure be so, which may sometimes be the case,
the means of opposition to it are powerful and at hand. The disquietude
of the people; their repugnance and, perhaps, refusal to co-operate with
the officers of the Union; the frowns of the executive magistracy of the
State; the embarrassments created by legislative devices, which would
often be added on such occasions, would oppose, in any State,
difficulties not to be despised; would form, in a large State, very
serious impediments; and where the sentiments of several adjoining
States happened to be in unison, would present obstructions which the
federal government would hardly be willing to encounter.
But ambitious encroachments of the federal government, on the authority
of the State governments, would not excite the opposition of a single
State, or of a few States only. They would be signals of general alarm.
Every government would espouse the common cause. A correspondence would
be opened. Plans of resistance would be concerted. One spirit would
animate and conduct the whole. The same combinations, in short, would
result from an apprehension of the federal, as was produced by the dread
of a foreign, yoke; and unless the projected innovations should be
voluntarily renounced, the same appeal to a trial of force would be made
in the one case as was made in the other. But what degree of madness
could ever drive the federal government to such an extremity. In the
contest with Great Britain, one part of the empire was employed against
the other. The more numerous part invaded the rights of the less
numerous part. The attempt was unjust and unwise; but it was not in
speculation absolutely chimerical. But what would be the contest in the
case we are supposing? Who would be the parties? A few representatives
of the people would be opposed to the people themselves; or rather one
set of representatives would be contending against thirteen sets of
representatives, with the whole body of their common constituents on the
side of the latter.
The only refuge left for those who prophesy the downfall of the State
governments is the visionary supposition that the federal government may
previously accumulate a military force for the projects of ambition. The
reasonings contained in these papers must have been employed to little
purpose indeed, if it could be necessary now to disprove the reality of
this danger. That the people and the States should, for a sufficient
period of time, elect an uninterupted succession of men ready to betray
both; that the traitors should, throughout this period, uniformly and
systematically pursue some fixed plan for the extension of the military
establishment; that the governments and the people of the States should
silently and patiently behold the gathering storm, and continue to
supply the materials, until it should be prepared to burst on their own
heads, must appear to every one more like the incoherent dreams of a
delirious jealousy, or the misjudged exaggerations of a counterfeit
zeal, than like the sober apprehensions of genuine patriotism.
Extravagant as the supposition is, let it however be made. Let a regular
army, fully equal to the resources of the country, be formed; and let it
be entirely at the devotion of the federal government; still it would
not be going too far to say, that the State governments, with the people
on their side, would be able to repel the danger. The highest number to
which, according to the best computation, a standing army can be carried
in any country, does not exceed one hundredth part of the whole number
of souls; or one twenty-fifth part of the number able to bear arms. This
proportion would not yield, in the United States, an army of more than
twenty-five or thirty thousand men. To these would be opposed a militia
amounting to near half a million of citizens with arms in their hands,
officered by men chosen from among themselves, fighting for their common
liberties, and united and conducted by governments possessing their
affections and confidence. It may well be doubted, whether a militia
thus circumstanced could ever be conquered by such a proportion of
regular troops. Those who are best acquainted with the last successful
resistance of this country against the British arms, will be most
inclined to deny the possibility of it. Besides the advantage of being
armed, which the Americans possess over the people of almost every other
nation, the existence of subordinate governments, to which the people
are attached, and by which the militia officers are appointed, forms a
barrier against the enterprises of ambition, more insurmountable than
any which a simple government of any form can admit of. Notwithstanding
the military establishments in the several kingdoms of Europe, which are
carried as far as the public resources will bear, the governments are
afraid to trust the people with arms. And it is not certain, that with
this aid alone they would not be able to shake off their yokes. But were
the people to possess the additional advantages of local governments
chosen by themselves, who could collect the national will and direct the
national force, and of officers appointed out of the militia, by these
governments, and attached both to them and to the militia, it may be
affirmed with the greatest assurance, that the throne of every tyranny
in Europe would be speedily overturned in spite of the legions which
surround it. Let us not insult the free and gallant citizens of America
with the suspicion, that they would be less able to defend the rights of
which they would be in actual possession, than the debased subjects of
arbitrary power would be to rescue theirs from the hands of their
oppressors. Let us rather no longer insult them with the supposition
that they can ever reduce themselves to the necessity of making the
experiment, by a blind and tame submission to the long train of
insidious measures which must precede and produce it.
The argument under the present head may be put into a very concise form,
which appears altogether conclusive. Either the mode in which the
federal government is to be constructed will render it sufficiently
dependent on the people, or it will not. On the first supposition, it
will be restrained by that dependence from forming schemes obnoxious to
their constituents. On the other supposition, it will not possess the
confidence of the people, and its schemes of usurpation will be easily
defeated by the State governments, who will be supported by the people.
On summing up the considerations stated in this and the last paper, they
seem to amount to the most convincing evidence, that the powers proposed
to be lodged in the federal government are as little formidable to those
reserved to the individual States, as they are indispensably necessary
to accomplish the purposes of the Union; and that all those alarms which
have been sounded, of a meditated and consequential annihilation of the
State governments, must, on the most favorable interpretation, be
ascribed to the chimerical fears of the authors of them.
PUBLIUS
____
FEDERALIST No. 47
The Particular Structure of the New Government and the
Distribution of Power Among Its Different Parts
For the Independent Journal.
Wednesday, January 30, 1788.
MADISON
To the People of the State of New York:
HAVING reviewed the general form of the proposed government and the
general mass of power allotted to it, I proceed to examine the
particular structure of this government, and the distribution of this
mass of power among its constituent parts.
One of the principal objections inculcated by the more respectable
adversaries to the Constitution, is its supposed violation of the
political maxim, that the legislative, executive, and judiciary
departments ought to be separate and distinct. In the structure of the
federal government, no regard, it is said, seems to have been paid to
this essential precaution in favor of liberty. The several departments
of power are distributed and blended in such a manner as at once to
destroy all symmetry and beauty of form, and to expose some of the
essential parts of the edifice to the danger of being crushed by the
disproportionate weight of other parts.
No political truth is certainly of greater intrinsic value, or is
stamped with the authority of more enlightened patrons of liberty, than
that on which the objection is founded. The accumulation of all powers,
legislative, executive, and judiciary, in the same hands, whether of
one, a few, or many, and whether hereditary, selfappointed, or elective,
may justly be pronounced the very definition of tyranny. Were the
federal Constitution, therefore, really chargeable with the accumulation
of power, or with a mixture of powers, having a dangerous tendency to
such an accumulation, no further arguments would be necessary to inspire
a universal reprobation of the system. I persuade myself, however, that
it will be made apparent to every one, that the charge cannot be
supported, and that the maxim on which it relies has been totally
misconceived and misapplied. In order to form correct ideas on this
important subject, it will be proper to investigate the sense in which
the preservation of liberty requires that the three great departments of
power should be separate and distinct.
The oracle who is always consulted and cited on this subject is the
celebrated Montesquieu. If he be not the author of this invaluable
precept in the science of politics, he has the merit at least of
displaying and recommending it most effectually to the attention of
mankind. Let us endeavor, in the first place, to ascertain his meaning
on this point.
The British Constitution was to Montesquieu what Homer has been to the
didactic writers on epic poetry. As the latter have considered the work
of the immortal bard as the perfect model from which the principles and
rules of the epic art were to be drawn, and by which all similar works
were to be judged, so this great political critic appears to have viewed
the Constitution of England as the standard, or to use his own
expression, as the mirror of political liberty; and to have delivered,
in the form of elementary truths, the several characteristic principles
of that particular system. That we may be sure, then, not to mistake his
meaning in this case, let us recur to the source from which the maxim
was drawn.
On the slightest view of the British Constitution, we must perceive that
the legislative, executive, and judiciary departments are by no means
totally separate and distinct from each other. The executive magistrate
forms an integral part of the legislative authority. He alone has the
prerogative of making treaties with foreign sovereigns, which, when
made, have, under certain limitations, the force of legislative acts.
All the members of the judiciary department are appointed by him, can be
removed by him on the address of the two Houses of Parliament, and form,
when he pleases to consult them, one of his constitutional councils. One
branch of the legislative department forms also a great constitutional
council to the executive chief, as, on another hand, it is the sole
depositary of judicial power in cases of impeachment, and is invested
with the supreme appellate jurisdiction in all other cases. The judges,
again, are so far connected with the legislative department as often to
attend and participate in its deliberations, though not admitted to a
legislative vote.
From these facts, by which Montesquieu was guided, it may clearly be
inferred that, in saying "There can be no liberty where the legislative
and executive powers are united in the same person, or body of
magistrates," or, "if the power of judging be not separated from the
legislative and executive powers," he did not mean that these
departments ought to have no PARTIAL AGENCY in, or no CONTROL over, the
acts of each other. His meaning, as his own words import, and still more
conclusively as illustrated by the example in his eye, can amount to no
more than this, that where the WHOLE power of one department is
exercised by the same hands which possess the WHOLE power of another
department, the fundamental principles of a free constitution are
subverted. This would have been the case in the constitution examined by
him, if the king, who is the sole executive magistrate, had possessed
also the complete legislative power, or the supreme administration of
justice; or if the entire legislative body had possessed the supreme
judiciary, or the supreme executive authority. This, however, is not
among the vices of that constitution. The magistrate in whom the whole
executive power resides cannot of himself make a law, though he can put
a negative on every law; nor administer justice in person, though he has
the appointment of those who do administer it. The judges can exercise
no executive prerogative, though they are shoots from the executive
stock; nor any legislative function, though they may be advised with by
the legislative councils. The entire legislature can perform no
judiciary act, though by the joint act of two of its branches the judges
may be removed from their offices, and though one of its branches is
possessed of the judicial power in the last resort. The entire
legislature, again, can exercise no executive prerogative, though one of
its branches constitutes the supreme executive magistracy, and another,
on the impeachment of a third, can try and condemn all the subordinate
officers in the executive department.
The reasons on which Montesquieu grounds his maxim are a further
demonstration of his meaning. "When the legislative and executive powers
are united in the same person or body," says he, "there can be no
liberty, because apprehensions may arise lest THE SAME monarch or senate
should ENACT tyrannical laws to EXECUTE them in a tyrannical manner."
Again: "Were the power of judging joined with the legislative, the life
and liberty of the subject would be exposed to arbitrary control, for
THE JUDGE would then be THE LEGISLATOR. Were it joined to the executive
power, THE JUDGE might behave with all the violence of AN OPPRESSOR."
Some of these reasons are more fully explained in other passages; but
briefly stated as they are here, they sufficiently establish the meaning
which we have put on this celebrated maxim of this celebrated author.
If we look into the constitutions of the several States, we find that,
notwithstanding the emphatical and, in some instances, the unqualified
terms in which this axiom has been laid down, there is not a single
instance in which the several departments of power have been kept
absolutely separate and distinct. New Hampshire, whose constitution was
the last formed, seems to have been fully aware of the impossibility and
inexpediency of avoiding any mixture whatever of these departments, and
has qualified the doctrine by declaring "that the legislative,
executive, and judiciary powers ought to be kept as separate from, and
independent of, each other AS THE NATURE OF A FREE GOVERNMENT WILL
ADMIT; OR AS IS CONSISTENT WITH THAT CHAIN OF CONNECTION THAT BINDS THE
WHOLE FABRIC OF THE CONSTITUTION IN ONE INDISSOLUBLE BOND OF UNITY AND
AMITY." Her constitution accordingly mixes these departments in several
respects. The Senate, which is a branch of the legislative department,
is also a judicial tribunal for the trial of impeachments. The
President, who is the head of the executive department, is the presiding
member also of the Senate; and, besides an equal vote in all cases, has
a casting vote in case of a tie. The executive head is himself
eventually elective every year by the legislative department, and his
council is every year chosen by and from the members of the same
department. Several of the officers of state are also appointed by the
legislature. And the members of the judiciary department are appointed
by the executive department.
The constitution of Massachusetts has observed a sufficient though less
pointed caution, in expressing this fundamental article of liberty. It
declares "that the legislative department shall never exercise the
executive and judicial powers, or either of them; the executive shall
never exercise the legislative and judicial powers, or either of them;
the judicial shall never exercise the legislative and executive powers,
or either of them." This declaration corresponds precisely with the
doctrine of Montesquieu, as it has been explained, and is not in a
single point violated by the plan of the convention. It goes no farther
than to prohibit any one of the entire departments from exercising the
powers of another department. In the very Constitution to which it is
prefixed, a partial mixture of powers has been admitted. The executive
magistrate has a qualified negative on the legislative body, and the
Senate, which is a part of the legislature, is a court of impeachment
for members both of the executive and judiciary departments. The members
of the judiciary department, again, are appointable by the executive
department, and removable by the same authority on the address of the
two legislative branches. Lastly, a number of the officers of government
are annually appointed by the legislative department. As the appointment
to offices, particularly executive offices, is in its nature an
executive function, the compilers of the Constitution have, in this last
point at least, violated the rule established by themselves.
I pass over the constitutions of Rhode Island and Connecticut, because
they were formed prior to the Revolution, and even before the principle
under examination had become an object of political attention.
The constitution of New York contains no declaration on this subject;
but appears very clearly to have been framed with an eye to the danger
of improperly blending the different departments. It gives,
nevertheless, to the executive magistrate, a partial control over the
legislative department; and, what is more, gives a like control to the
judiciary department; and even blends the executive and judiciary
departments in the exercise of this control. In its council of
appointment members of the legislative are associated with the executive
authority, in the appointment of officers, both executive and judiciary.
And its court for the trial of impeachments and correction of errors is
to consist of one branch of the legislature and the principal members of
the judiciary department.
The constitution of New Jersey has blended the different powers of
government more than any of the preceding. The governor, who is the
executive magistrate, is appointed by the legislature; is chancellor and
ordinary, or surrogate of the State; is a member of the Supreme Court of
Appeals, and president, with a casting vote, of one of the legislative
branches. The same legislative branch acts again as executive council of
the governor, and with him constitutes the Court of Appeals. The members
of the judiciary department are appointed by the legislative department
and removable by one branch of it, on the impeachment of the other.
According to the constitution of Pennsylvania, the president, who is the
head of the executive department, is annually elected by a vote in which
the legislative department predominates. In conjunction with an
executive council, he appoints the members of the judiciary department,
and forms a court of impeachment for trial of all officers, judiciary as
well as executive. The judges of the Supreme Court and justices of the
peace seem also to be removable by the legislature; and the executive
power of pardoning in certain cases, to be referred to the same
department. The members of the executive counoil are made EX-OFFICIO
justices of peace throughout the State.
In Delaware, the chief executive magistrate is annually elected by the
legislative department. The speakers of the two legislative branches are
vice-presidents in the executive department. The executive chief, with
six others, appointed, three by each of the legislative branches
constitutes the Supreme Court of Appeals; he is joined with the
legislative department in the appointment of the other judges.
Throughout the States, it appears that the members of the legislature
may at the same time be justices of the peace; in this State, the
members of one branch of it are EX-OFFICIO justices of the peace; as are
also the members of the executive council. The principal officers of the
executive department are appointed by the legislative; and one branch of
the latter forms a court of impeachments. All officers may be removed on
address of the legislature.
Maryland has adopted the maxim in the most unqualified terms; declaring
that the legislative, executive, and judicial powers of government ought
to be forever separate and distinct from each other. Her constitution,
notwithstanding, makes the executive magistrate appointable by the
legislative department; and the members of the judiciary by the
executive department.
The language of Virginia is still more pointed on this subject. Her
constitution declares, "that the legislative, executive, and judiciary
departments shall be separate and distinct; so that neither exercise the
powers properly belonging to the other; nor shall any person exercise
the powers of more than one of them at the same time, except that the
justices of county courts shall be eligible to either House of Assembly."
Yet we find not only this express exception, with respect to the
members of the irferior courts, but that the chief magistrate, with his
executive council, are appointable by the legislature; that two members
of the latter are triennially displaced at the pleasure of the
legislature; and that all the principal offices, both executive and
judiciary, are filled by the same department. The executive prerogative
of pardon, also, is in one case vested in the legislative department.
The constitution of North Carolina, which declares "that the
legislative, executive, and supreme judicial powers of government ought
to be forever separate and distinct from each other," refers, at the
same time, to the legislative department, the appointment not only of
the executive chief, but all the principal officers within both that and
the judiciary department.
In South Carolina, the constitution makes the executive magistracy
eligible by the legislative department. It gives to the latter, also,
the appointment of the members of the judiciary department, including
even justices of the peace and sheriffs; and the appointment of officers
in the executive department, down to captains in the army and navy of
the State.
In the constitution of Georgia, where it is declared "that the
legislative, executive, and judiciary departments shall be separate and
distinct, so that neither exercise the powers properly belonging to the
other," we find that the executive department is to be filled by
appointments of the legislature; and the executive prerogative of pardon
to be finally exercised by the same authority. Even justices of the
peace are to be appointed by the legislature.
In citing these cases, in which the legislative, executive, and
judiciary departments have not been kept totally separate and distinct,
I wish not to be regarded as an advocate for the particular
organizations of the several State governments. I am fully aware that
among the many excellent principles which they exemplify, they carry
strong marks of the haste, and still stronger of the inexperience, under
which they were framed. It is but too obvious that in some instances the
fundamental principle under consideration has been violated by too great
a mixture, and even an actual consolidation, of the different powers;
and that in no instance has a competent provision been made for
maintaining in practice the separation delineated on paper. What I have
wished to evince is, that the charge brought against the proposed
Constitution, of violating the sacred maxim of free government, is
warranted neither by the real meaning annexed to that maxim by its
author, nor by the sense in which it has hitherto been understood in
America. This interesting subject will be resumed in the ensuing paper.
PUBLIUS
____
FEDERALIST No. 48
These Departments Should Not Be So Far Separated as to Have No
Constitutional Control Over Each Other
From the New York Packet.
Friday, February 1, 1788.
MADISON
To the People of the State of New York:
IT WAS shown in the last paper that the political apothegm there
examined does not require that the legislative, executive, and judiciary
departments should be wholly unconnected with each other. I shall
undertake, in the next place, to show that unless these departments be
so far connected and blended as to give to each a constitutional control
over the others, the degree of separation which the maxim requires, as
essential to a free government, can never in practice be duly
maintained.
It is agreed on all sides, that the powers properly belonging to one of
the departments ought not to be directly and completely administered by
either of the other departments. It is equally evident, that none of
them ought to possess, directly or indirectly, an overruling influence
over the others, in the administration of their respective powers. It
will not be denied, that power is of an encroaching nature, and that it
ought to be effectually restrained from passing the limits assigned to
it. After discriminating, therefore, in theory, the several classes of
power, as they may in their nature be legislative, executive, or
judiciary, the next and most difficult task is to provide some practical
security for each, against the invasion of the others. What this
security ought to be, is the great problem to be solved.
Will it be sufficient to mark, with precision, the boundaries of these
departments, in the constitution of the government, and to trust to
these parchment barriers against the encroaching spirit of power? This
is the security which appears to have been principally relied on by the
compilers of most of the American constitutions. But experience assures
us, that the efficacy of the provision has been greatly overrated; and
that some more adequate defense is indispensably necessary for the more
feeble, against the more powerful, members of the government. The
legislative department is everywhere extending the sphere of its
activity, and drawing all power into its impetuous vortex.
The founders of our republics have so much merit for the wisdom which
they have displayed, that no task can be less pleasing than that of
pointing out the errors into which they have fallen. A respect for
truth, however, obliges us to remark, that they seem never for a moment
to have turned their eyes from the danger to liberty from the overgrown
and all-grasping prerogative of an hereditary magistrate, supported and
fortified by an hereditary branch of the legislative authority. They
seem never to have recollected the danger from legislative usurpations,
which, by assembling all power in the same hands, must lead to the same
tyranny as is threatened by executive usurpations.
In a government where numerous and extensive prerogatives are placed in
the hands of an hereditary monarch, the executive department is very
justly regarded as the source of danger, and watched with all the
jealousy which a zeal for liberty ought to inspire. In a democracy,
where a multitude of people exercise in person the legislative
functions, and are continually exposed, by their incapacity for regular
deliberation and concerted measures, to the ambitious intrigues of their
executive magistrates, tyranny may well be apprehended, on some
favorable emergency, to start up in the same quarter. But in a
representative republic, where the executive magistracy is carefully
limited; both in the extent and the duration of its power; and where the
legislative power is exercised by an assembly, which is inspired, by a
supposed influence over the people, with an intrepid confidence in its
own strength; which is sufficiently numerous to feel all the passions
which actuate a multitude, yet not so numerous as to be incapable of
pursuing the objects of its passions, by means which reason prescribes;
it is against the enterprising ambition of this department that the
people ought to indulge all their jealousy and exhaust all their
precautions.
The legislative department derives a superiority in our governments from
other circumstances. Its constitutional powers being at once more
extensive, and less susceptible of precise limits, it can, with the
greater facility, mask, under complicated and indirect measures, the
encroachments which it makes on the co-ordinate departments. It is not
unfrequently a question of real nicety in legislative bodies, whether
the operation of a particular measure will, or will not, extend beyond
the legislative sphere. On the other side, the executive power being
restrained within a narrower compass, and being more simple in its
nature, and the judiciary being described by landmarks still less
uncertain, projects of usurpation by either of these departments would
immediately betray and defeat themselves. Nor is this all: as the
legislative department alone has access to the pockets of the people,
and has in some constitutions full discretion, and in all a prevailing
influence, over the pecuniary rewards of those who fill the other
departments, a dependence is thus created in the latter, which gives
still greater facility to encroachments of the former.
I have appealed to our own experience for the truth of what I advance on
this subject. Were it necessary to verify this experience by particular
proofs, they might be multiplied without end. I might find a witness in
every citizen who has shared in, or been attentive to, the course of
public administrations. I might collect vouchers in abundance from the
records and archives of every State in the Union. But as a more concise,
and at the same time equally satisfactory, evidence, I will refer to the
example of two States, attested by two unexceptionable authorities.
The first example is that of Virginia, a State which, as we have seen,
has expressly declared in its constitution, that the three great
departments ought not to be intermixed. The authority in support of it
is Mr. Jefferson, who, besides his other advantages for remarking the
operation of the government, was himself the chief magistrate of it. In
order to convey fully the ideas with which his experience had impressed
him on this subject, it will be necessary to quote a passage of some
length from his very interesting Notes on the State of Virginia, p.
195. "All the powers of government, legislative, executive, and
judiciary, result to the legislative body. The concentrating these in
the same hands, is precisely the definition of despotic government. It
will be no alleviation, that these powers will be exercised by a
plurality of hands, and not by a single one. One hundred and
seventy-three despots would surely be as oppressive as one. Let those
who doubt it, turn their eyes on the republic of Venice. As little will
it avail us, that they are chosen by ourselves. An ELECTIVE DESPOTISM
was not the government we fought for; but one which should not only be
founded on free principles, but in which the powers of government should
be so divided and balanced among several bodies of magistracy, as that
no one could transcend their legal limits, without being effectually
checked and restrained by the others. For this reason, that convention
which passed the ordinance of government, laid its foundation on this
basis, that the legislative, executive, and judiciary departments should
be separate and distinct, so that no person should exercise the powers
of more than one of them at the same time. BUT NO BARRIER WAS PROVIDED
BETWEEN THESE SEVERAL POWERS. The judiciary and the executive members
were left dependent on the legislative for their subsistence in office,
and some of them for their continuance in it. If, therefore, the
legislature assumes executive and judiciary powers, no opposition is
likely to be made; nor, if made, can be effectual; because in that case
they may put their proceedings into the form of acts of Assembly, which
will render them obligatory on the other branches. They have
accordingly, IN MANY instances, DECIDED RIGHTS which should have been
left to JUDICIARY CONTROVERSY, and THE DIRECTION OF THE EXECUTIVE,
DURING THE WHOLE TIME OF THEIR SESSION, IS BECOMING HABITUAL AND
FAMILIAR."
The other State which I shall take for an example is Pennsylvania; and
the other authority, the Council of Censors, which assembled in the
years 1783 and 1784. A part of the duty of this body, as marked out by
the constitution, was "to inquire whether the constitution had been
preserved inviolate in every part; and whether the legislative and
executive branches of government had performed their duty as guardians
of the people, or assumed to themselves, or exercised, other or greater
powers than they are entitled to by the constitution. " In the execution
of this trust, the council were necessarily led to a comparison of both
the legislative and executive proceedings, with the constitutional
powers of these departments; and from the facts enumerated, and to the
truth of most of which both sides in the council subscribed, it appears
that the constitution had been flagrantly violated by the legislature in
a variety of important instances.
A great number of laws had been passed, violating, without any apparent
necessity, the rule requiring that all bills of a public nature shall be
previously printed for the consideration of the people; although this is
one of the precautions chiefly relied on by the constitution against
improper acts of legislature.
The constitutional trial by jury had been violated, and powers assumed
which had not been delegated by the constitution.
Executive powers had been usurped.
The salaries of the judges, which the constitution expressly requires to
be fixed, had been occasionally varied; and cases belonging to the
judiciary department frequently drawn within legislative cognizance and
determination.
Those who wish to see the several particulars falling under each of
these heads, may consult the journals of the council, which are in
print. Some of them, it will be found, may be imputable to peculiar
circumstances connected with the war; but the greater part of them may
be considered as the spontaneous shoots of an ill-constituted
government.
It appears, also, that the executive department had not been innocent of
frequent breaches of the constitution. There are three observations,
however, which ought to be made on this head: FIRST, a great proportion
of the instances were either immediately produced by the necessities of
the war, or recommended by Congress or the commander-in-chief; SECOND,
in most of the other instances, they conformed either to the declared or
the known sentiments of the legislative department; THIRD, the
executive department of Pennsylvania is distinguished from that of the
other States by the number of members composing it. In this respect, it
has as much affinity to a legislative assembly as to an executive
council. And being at once exempt from the restraint of an individual
responsibility for the acts of the body, and deriving confidence from
mutual example and joint influence, unauthorized measures would, of
course, be more freely hazarded, than where the executive department is
administered by a single hand, or by a few hands.
The conclusion which I am warranted in drawing from these observations
is, that a mere demarcation on parchment of the constitutional limits of
the several departments, is not a sufficient guard against those
encroachments which lead to a tyrannical concentration of all the powers
of government in the same hands.
PUBLIUS
____
FEDERALIST No. 49
Method of Guarding Against the Encroachments of Any One Department of
Government by Appealing to the People Through a Convention
For the Independent Journal.
Saturday, February 2, 1788.
MADISON
To the People of the State of New York:
THE author of the "Notes on the State of Virginia," quoted in the last
paper, has subjoined to that valuable work the draught of a
constitution, which had been prepared in order to be laid before a
convention, expected to be called in 1783, by the legislature, for the
establishment of a constitution for that commonwealth. The plan, like
every thing from the same pen, marks a turn of thinking, original,
comprehensive, and accurate; and is the more worthy of attention as it
equally displays a fervent attachment to republican government and an
enlightened view of the dangerous propensities against which it ought to
be guarded. One of the precautions which he proposes, and on which he
appears ultimately to rely as a palladium to the weaker departments of
power against the invasions of the stronger, is perhaps altogether his
own, and as it immediately relates to the subject of our present
inquiry, ought not to be overlooked.
His proposition is, "that whenever any two of the three branches of
government shall concur in opinion, each by the voices of two thirds of
their whole number, that a convention is necessary for altering the
constitution, or CORRECTING BREACHES OF IT, a convention shall be called
for the purpose."
As the people are the only legitimate fountain of power, and it is from
them that the constitutional charter, under which the several branches
of government hold their power, is derived, it seems strictly consonant
to the republican theory, to recur to the same original authority, not
only whenever it may be necessary to enlarge, diminish, or new-model the
powers of the government, but also whenever any one of the departments
may commit encroachments on the chartered authorities of the others. The
several departments being perfectly co-ordinate by the terms of their
common commission, none of them, it is evident, can pretend to an
exclusive or superior right of settling the boundaries between their
respective powers; and how are the encroachments of the stronger to be
prevented, or the wrongs of the weaker to be redressed, without an
appeal to the people themselves, who, as the grantors of the
commissions, can alone declare its true meaning, and enforce its
observance?
There is certainly great force in this reasoning, and it must be allowed
to prove that a constitutional road to the decision of the people ought
to be marked out and kept open, for certain great and extraordinary
occasions. But there appear to be insuperable objections against the
proposed recurrence to the people, as a provision in all cases for
keeping the several departments of power within their constitutional
limits.
In the first place, the provision does not reach the case of a
combination of two of the departments against the third. If the
legislative authority, which possesses so many means of operating on the
motives of the other departments, should be able to gain to its interest
either of the others, or even one third of its members, the remaining
department could derive no advantage from its remedial provision. I do
not dwell, however, on this objection, because it may be thought to be
rather against the modification of the principle, than against the
principle itself.
In the next place, it may be considered as an objection inherent in the
principle, that as every appeal to the people would carry an implication
of some defect in the government, frequent appeals would, in a great
measure, deprive the government of that veneration which time bestows on
every thing, and without which perhaps the wisest and freest governments
would not possess the requisite stability. If it be true that all
governments rest on opinion, it is no less true that the strength of
opinion in each individual, and its practical influence on his conduct,
depend much on the number which he supposes to have entertained the same
opinion. The reason of man, like man himself, is timid and cautious when
left alone, and acquires firmness and confidence in proportion to the
number with which it is associated. When the examples which fortify
opinion are ANCIENT as well as NUMEROUS, they are known to have a double
effect. In a nation of philosophers, this consideration ought to be
disregarded. A reverence for the laws would be sufficiently inculcated
by the voice of an enlightened reason. But a nation of philosophers is
as little to be expected as the philosophical race of kings wished for
by Plato. And in every other nation, the most rational government will
not find it a superfluous advantage to have the prejudices of the
community on its side.
The danger of disturbing the public tranquillity by interesting too
strongly the public passions, is a still more serious objection against
a frequent reference of constitutional questions to the decision of the
whole society. Notwithstanding the success which has attended the
revisions of our established forms of government, and which does so much
honor to the virtue and intelligence of the people of America, it must
be confessed that the experiments are of too ticklish a nature to be
unnecessarily multiplied. We are to recollect that all the existing
constitutions were formed in the midst of a danger which repressed the
passions most unfriendly to order and concord; of an enthusiastic
confidence of the people in their patriotic leaders, which stifled the
ordinary diversity of opinions on great national questions; of a
universal ardor for new and opposite forms, produced by a universal
resentment and indignation against the ancient government; and whilst no
spirit of party connected with the changes to be made, or the abuses to
be reformed, could mingle its leaven in the operation. The future
situations in which we must expect to be usually placed, do not present
any equivalent security against the danger which is apprehended.
But the greatest objection of all is, that the decisions which would
probably result from such appeals would not answer the purpose of
maintaining the constitutional equilibrium of the government. We have
seen that the tendency of republican governments is to an aggrandizement
of the legislative at the expense of the other departments. The appeals
to the people, therefore, would usually be made by the executive and
judiciary departments. But whether made by one side or the other, would
each side enjoy equal advantages on the trial? Let us view their
different situations. The members of the executive and judiciary
departments are few in number, and can be personally known to a small
part only of the people. The latter, by the mode of their appointment,
as well as by the nature and permanency of it, are too far removed from
the people to share much in their prepossessions. The former are
generally the objects of jealousy, and their administration is always
liable to be discolored and rendered unpopular. The members of the
legislative department, on the other hand, are numberous. They are
distributed and dwell among the people at large. Their connections of
blood, of friendship, and of acquaintance embrace a great proportion of
the most influential part of the society. The nature of their public
trust implies a personal influence among the people, and that they are
more immediately the confidential guardians of the rights and liberties
of the people. With these advantages, it can hardly be supposed that the
adverse party would have an equal chance for a favorable issue.
But the legislative party would not only be able to plead their cause
most successfully with the people. They would probably be constituted
themselves the judges. The same influence which had gained them an
election into the legislature, would gain them a seat in the convention.
If this should not be the case with all, it would probably be the case
with many, and pretty certainly with those leading characters, on whom
every thing depends in such bodies. The convention, in short, would be
composed chiefly of men who had been, who actually were, or who expected
to be, members of the department whose conduct was arraigned. They would
consequently be parties to the very question to be decided by them.
It might, however, sometimes happen, that appeals would be made under
circumstances less adverse to the executive and judiciary departments.
The usurpations of the legislature might be so flagrant and so sudden,
as to admit of no specious coloring. A strong party among themselves
might take side with the other branches. The executive power might be in
the hands of a peculiar favorite of the people. In such a posture of
things, the public decision might be less swayed by prepossessions in
favor of the legislative party. But still it could never be expected to
turn on the true merits of the question. It would inevitably be
connected with the spirit of pre-existing parties, or of parties
springing out of the question itself. It would be connected with persons
of distinguished character and extensive influence in the community. It
would be pronounced by the very men who had been agents in, or opponents
of, the measures to which the decision would relate. The PASSIONS,
therefore, not the REASON, of the public would sit in judgment. But it
is the reason, alone, of the public, that ought to control and regulate
the government. The passions ought to be controlled and regulated by the
government.
We found in the last paper, that mere declarations in the written
constitution are not sufficient to restrain the several departments
within their legal rights. It appears in this, that occasional appeals
to the people would be neither a proper nor an effectual provision for
that purpose. How far the provisions of a different nature contained in
the plan above quoted might be adequate, I do not examine. Some of them
are unquestionably founded on sound political principles, and all of
them are framed with singular ingenuity and precision.
PUBLIUS
____
FEDERALIST No. 50
Periodical Appeals to the People Considered
From the New York Packet.
Tuesday, February 5, 1788.
MADISON
To the People of the State of New York:
IT MAY be contended, perhaps, that instead of OCCASIONAL appeals to the
people, which are liable to the objections urged against them,
PERIODICAL appeals are the proper and adequate means of PREVENTING AND
CORRECTING INFRACTIONS OF THE CONSTITUTION.
It will be attended to, that in the examination of these expedients, I
confine myself to their aptitude for ENFORCING the Constitution, by
keeping the several departments of power within their due bounds,
without particularly considering them as provisions for ALTERING the
Constitution itself. In the first view, appeals to the people at fixed
periods appear to be nearly as ineligible as appeals on particular
occasions as they emerge. If the periods be separated by short
intervals, the measures to be reviewed and rectified will have been of
recent date, and will be connected with all the circumstances which tend
to vitiate and pervert the result of occasional revisions. If the
periods be distant from each other, the same remark will be applicable
to all recent measures; and in proportion as the remoteness of the
others may favor a dispassionate review of them, this advantage is
inseparable from inconveniences which seem to counterbalance it. In the
first place, a distant prospect of public censure would be a very feeble
restraint on power from those excesses to which it might be urged by the
force of present motives. Is it to be imagined that a legislative
assembly, consisting of a hundred or two hundred members, eagerly bent
on some favorite object, and breaking through the restraints of the
Constitution in pursuit of it, would be arrested in their career, by
considerations drawn from a censorial revision of their conduct at the
future distance of ten, fifteen, or twenty years? In the next place, the
abuses would often have completed their mischievous effects before the
remedial provision would be applied. And in the last place, where this
might not be the case, they would be of long standing, would have taken
deep root, and would not easily be extirpated.
The scheme of revising the constitution, in order to correct recent
breaches of it, as well as for other purposes, has been actually tried
in one of the States. One of the objects of the Council of Censors which
met in Pennsylvania in 1783 and 1784, was, as we have seen, to inquire,
"whether the constitution had been violated, and whether the legislative
and executive departments had encroached upon each other." This
important and novel experiment in politics merits, in several points of
view, very particular attention. In some of them it may, perhaps, as a
single experiment, made under circumstances somewhat peculiar, be
thought to be not absolutely conclusive. But as applied to the case
under consideration, it involves some facts, which I venture to remark,
as a complete and satisfactory illustration of the reasoning which I
have employed.
First. It appears, from the names of the gentlemen who composed the
council, that some, at least, of its most active members had also been
active and leading characters in the parties which pre-existed in the
State.
Second. It appears that the same active and leading members of the
council had been active and influential members of the legislative and
executive branches, within the period to be reviewed; and even patrons
or opponents of the very measures to be thus brought to the test of the
constitution. Two of the members had been vice-presidents of the State,
and several other members of the executive council, within the seven
preceding years. One of them had been speaker, and a number of others
distinguished members, of the legislative assembly within the same
period.
Third. Every page of their proceedings witnesses the effect of all these
circumstances on the temper of their deliberations. Throughout the
continuance of the council, it was split into two fixed and violent
parties. The fact is acknowledged and lamented by themselves. Had this
not been the case, the face of their proceedings exhibits a proof
equally satisfactory. In all questions, however unimportant in
themselves, or unconnected with each other, the same names stand
invariably contrasted on the opposite columns. Every unbiased observer
may infer, without danger of mistake, and at the same time without
meaning to reflect on either party, or any individuals of either party,
that, unfortunately, PASSION, not REASON, must have presided over their
decisions. When men exercise their reason coolly and freely on a variety
of distinct questions, they inevitably fall into different opinions on
some of them. When they are governed by a common passion, their
opinions, if they are so to be called, will be the same.
Fourth. It is at least problematical, whether the decisions of this body
do not, in several instances, misconstrue the limits prescribed for the
legislative and executive departments, instead of reducing and limiting
them within their constitutional places.
Fifth. I have never understood that the decisions of the council on
constitutional questions, whether rightly or erroneously formed, have
had any effect in varying the practice founded on legislative
constructions. It even appears, if I mistake not, that in one instance
the contemporary legislature denied the constructions of the council,
and actually prevailed in the contest.
This censorial body, therefore, proves at the same time, by its
researches, the existence of the disease, and by its example, the
inefficacy of the remedy.
This conclusion cannot be invalidated by alleging that the State in
which the experiment was made was at that crisis, and had been for a
long time before, violently heated and distracted by the rage of party.
Is it to be presumed, that at any future septennial epoch the same State
will be free from parties? Is it to be presumed that any other State, at
the same or any other given period, will be exempt from them? Such an
event ought to be neither presumed nor desired; because an extinction of
parties necessarily implies either a universal alarm for the public
safety, or an absolute extinction of liberty.
Were the precaution taken of excluding from the assemblies elected by
the people, to revise the preceding administration of the government,
all persons who should have been concerned with the government within
the given period, the difficulties would not be obviated. The important
task would probably devolve on men, who, with inferior capacities, would
in other respects be little better qualified. Although they might not
have been personally concerned in the administration, and therefore not
immediately agents in the measures to be examined, they would probably
have been involved in the parties connected with these measures, and
have been elected under their auspices.
PUBLIUS
____
FEDERALIST No. 51
The Structure of the Government Must Furnish the Proper Checks
and Balances Between the Different Departments
For the Independent Journal.
Wednesday, February 6, 1788.
MADISON
To the People of the State of New York:
TO WHAT expedient, then, shall we finally resort, for maintaining in
practice the necessary partition of power among the several departments,
as laid down in the Constitution? The only answer that can be given is,
that as all these exterior provisions are found to be inadequate, the
defect must be supplied, by so contriving the interior structure of the
government as that its several constituent parts may, by their mutual
relations, be the means of keeping each other in their proper places.
Without presuming to undertake a full development of this important
idea, I will hazard a few general observations, which may perhaps place
it in a clearer light, and enable us to form a more correct judgment of
the principles and structure of the government planned by the
convention.
In order to lay a due foundation for that separate and distinct exercise
of the different powers of government, which to a certain extent is
admitted on all hands to be essential to the preservation of liberty, it
is evident that each department should have a will of its own; and
consequently should be so constituted that the members of each should
have as little agency as possible in the appointment of the members of
the others. Were this principle rigorously adhered to, it would require
that all the appointments for the supreme executive, legislative, and
judiciary magistracies should be drawn from the same fountain of
authority, the people, through channels having no communication whatever
with one another. Perhaps such a plan of constructing the several
departments would be less difficult in practice than it may in
contemplation appear. Some difficulties, however, and some additional
expense would attend the execution of it. Some deviations, therefore,
from the principle must be admitted. In the constitution of the
judiciary department in particular, it might be inexpedient to insist
rigorously on the principle: first, because peculiar qualifications
being essential in the members, the primary consideration ought to be to
select that mode of choice which best secures these qualifications;
secondly, because the permanent tenure by which the appointments are
held in that department, must soon destroy all sense of dependence on
the authority conferring them.
It is equally evident, that the members of each department should be as
little dependent as possible on those of the others, for the emoluments
annexed to their offices. Were the executive magistrate, or the judges,
not independent of the legislature in this particular, their
independence in every other would be merely nominal.
But the great security against a gradual concentration of the several
powers in the same department, consists in giving to those who
administer each department the necessary constitutional means and
personal motives to resist encroachments of the others. The provision
for defense must in this, as in all other cases, be made commensurate to
the danger of attack. Ambition must be made to counteract ambition. The
interest of the man must be connected with the constitutional rights of
the place. It may be a reflection on human nature, that such devices
should be necessary to control the abuses of government. But what is
government itself, but the greatest of all reflections on human nature?
If men were angels, no government would be necessary. If angels were to
govern men, neither external nor internal controls on government would
be necessary. In framing a government which is to be administered by men
over men, the great difficulty lies in this: you must first enable the
government to control the governed; and in the next place oblige it to
control itself. A dependence on the people is, no doubt, the primary
control on the government; but experience has taught mankind the
necessity of auxiliary precautions.
This policy of supplying, by opposite and rival interests, the defect of
better motives, might be traced through the whole system of human
affairs, private as well as public. We see it particularly displayed in
all the subordinate distributions of power, where the constant aim is to
divide and arrange the several offices in such a manner as that each may
be a check on the other -- that the private interest of every individual
may be a sentinel over the public rights. These inventions of prudence
cannot be less requisite in the distribution of the supreme powers of
the State.
But it is not possible to give to each department an equal power of
self-defense. In republican government, the legislative authority
necessarily predominates. The remedy for this inconveniency is to divide
the legislature into different branches; and to render them, by
different modes of election and different principles of action, as
little connected with each other as the nature of their common functions
and their common dependence on the society will admit. It may even be
necessary to guard against dangerous encroachments by still further
precautions. As the weight of the legislative authority requires that it
should be thus divided, the weakness of the executive may require, on
the other hand, that it should be fortified. An absolute negative on the
legislature appears, at first view, to be the natural defense with which
the executive magistrate should be armed. But perhaps it would be
neither altogether safe nor alone sufficient. On ordinary occasions it
might not be exerted with the requisite firmness, and on extraordinary
occasions it might be perfidiously abused. May not this defect of an
absolute negative be supplied by some qualified connection between this
weaker department and the weaker branch of the stronger department, by
which the latter may be led to support the constitutional rights of the
former, without being too much detached from the rights of its own
department?
If the principles on which these observations are founded be just, as I
persuade myself they are, and they be applied as a criterion to the
several State constitutions, and to the federal Constitution it will be
found that if the latter does not perfectly correspond with them, the
former are infinitely less able to bear such a test.
There are, moreover, two considerations particularly applicable to the
federal system of America, which place that system in a very interesting
point of view.
First. In a single republic, all the power surrendered by the people is
submitted to the administration of a single government; and the
usurpations are guarded against by a division of the government into
distinct and separate departments. In the compound republic of America,
the power surrendered by the people is first divided between two
distinct governments, and then the portion allotted to each subdivided
among distinct and separate departments. Hence a double security arises
to the rights of the people. The different governments will control each
other, at the same time that each will be controlled by itself.
Second. It is of great importance in a republic not only to guard the
society against the oppression of its rulers, but to guard one part of
the society against the injustice of the other part. Different interests
necessarily exist in different classes of citizens. If a majority be
united by a common interest, the rights of the minority will be
insecure. There are but two methods of providing against this evil: the
one by creating a will in the community independent of the majority --
that is, of the society itself; the other, by comprehending in the
society so many separate descriptions of citizens as will render an
unjust combination of a majority of the whole very improbable, if not
impracticable. The first method prevails in all governments possessing
an hereditary or self-appointed authority. This, at best, is but a
precarious security; because a power independent of the society may as
well espouse the unjust views of the major, as the rightful interests of
the minor party, and may possibly be turned against both parties. The
second method will be exemplified in the federal republic of the United
States. Whilst all authority in it will be derived from and dependent on
the society, the society itself will be broken into so many parts,
interests, and classes of citizens, that the rights of individuals, or
of the minority, will be in little danger from interested combinations
of the majority. In a free government the security for civil rights must
be the same as that for religious rights. It consists in the one case in
the multiplicity of interests, and in the other in the multiplicity of
sects. The degree of security in both cases will depend on the number of
interests and sects; and this may be presumed to depend on the extent of
country and number of people comprehended under the same government.
This view of the subject must particularly recommend a proper federal
system to all the sincere and considerate friends of republican
government, since it shows that in exact proportion as the territory of
the Union may be formed into more circumscribed Confederacies, or States
oppressive combinations of a majority will be facilitated: the best
security, under the republican forms, for the rights of every class of
citizens, will be diminished: and consequently the stability and
independence of some member of the government, the only other security,
must be proportionately increased. Justice is the end of government. It
is the end of civil society. It ever has been and ever will be pursued
until it be obtained, or until liberty be lost in the pursuit. In a
society under the forms of which the stronger faction can readily unite
and oppress the weaker, anarchy may as truly be said to reign as in a
state of nature, where the weaker individual is not secured against the
violence of the stronger; and as, in the latter state, even the stronger
individuals are prompted, by the uncertainty of their condition, to
submit to a government which may protect the weak as well as themselves;
so, in the former state, will the more powerful factions or parties be
gradnally induced, by a like motive, to wish for a government which will
protect all parties, the weaker as well as the more powerful. It can be
little doubted that if the State of Rhode Island was separated from the
Confederacy and left to itself, the insecurity of rights under the
popular form of government within such narrow limits would be displayed
by such reiterated oppressions of factious majorities that some power
altogether independent of the people would soon be called for by the
voice of the very factions whose misrule had proved the necessity of it.
In the extended republic of the United States, and among the great
variety of interests, parties, and sects which it embraces, a coalition
of a majority of the whole society could seldom take place on any other
principles than those of justice and the general good; whilst there
being thus less danger to a minor from the will of a major party, there
must be less pretext, also, to provide for the security of the former,
by introducing into the government a will not dependent on the latter,
or, in other words, a will independent of the society itself. It is no
less certain than it is important, notwithstanding the contrary opinions
which have been entertained, that the larger the society, provided it
lie within a practical sphere, the more duly capable it will be of
self-government. And happily for the REPUBLICAN CAUSE, the practicable
sphere may be carried to a very great extent, by a judicious
modification and mixture of the FEDERAL PRINCIPLE.
PUBLIUS
____
FEDERALIST No. 52
The House of Representatives
From the New York Packet.
Friday, February 8, 1788.
MADISON
To the People of the State of New York:
FROM the more general inquiries pursued in the four last papers, I pass
on to a more particular examination of the several parts of the
government. I shall begin with the House of Representatives.
The first view to be taken of this part of the government relates to the
qualifications of the electors and the elected. Those of the former are
to be the same with those of the electors of the most numerous branch of
the State legislatures. The definition of the right of suffrage is very
justly regarded as a fundamental article of republican government. It
was incumbent on the convention, therefore, to define and establish this
right in the Constitution. To have left it open for the occasional
regulation of the Congress, would have been improper for the reason just
mentioned. To have submitted it to the legislative discretion of the
States, would have been improper for the same reason; and for the
additional reason that it would have rendered too dependent on the State
governments that branch of the federal government which ought to be
dependent on the people alone. To have reduced the different
qualifications in the different States to one uniform rule, would
probably have been as dissatisfactory to some of the States as it would
have been difficult to the convention. The provision made by the
convention appears, therefore, to be the best that lay within their
option. It must be satisfactory to every State, because it is
conformable to the standard already established, or which may be
established, by the State itself. It will be safe to the United States,
because, being fixed by the State constitutions, it is not alterable by
the State governments, and it cannot be feared that the people of the
States will alter this part of their constitutions in such a manner as
to abridge the rights secured to them by the federal Constitution.
The qualifications of the elected, being less carefully and properly
defined by the State constitutions, and being at the same time more
susceptible of uniformity, have been very properly considered and
regulated by the convention. A representative of the United States must
be of the age of twenty-five years; must have been seven years a citizen
of the United States; must, at the time of his election, be an
inhabitant of the State he is to represent; and, during the time of his
service, must be in no office under the United States. Under these
reasonable limitations, the door of this part of the federal government
is open to merit of every description, whether native or adoptive,
whether young or old, and without regard to poverty or wealth, or to any
particular profession of religious faith.
The term for which the representatives are to be elected falls under a
second view which may be taken of this branch. In order to decide on the
propriety of this article, two questions must be considered: first,
whether biennial elections will, in this case, be safe; secondly,
whether they be necessary or useful.
First. As it is essential to liberty that the government in general
should have a common interest with the people, so it is particularly
essential that the branch of it under consideration should have an
immediate dependence on, and an intimate sympathy with, the people.
Frequent elections are unquestionably the only policy by which this
dependence and sympathy can be effectually secured. But what particular
degree of frequency may be absolutely necessary for the purpose, does
not appear to be susceptible of any precise calculation, and must depend
on a variety of circumstances with which it may be connected. Let us
consult experience, the guide that ought always to be followed whenever
it can be found.
The scheme of representation, as a substitute for a meeting of the
citizens in person, being at most but very imperfectly known to ancient
polity, it is in more modern times only that we are to expect
instructive examples. And even here, in order to avoid a research too
vague and diffusive, it will be proper to confine ourselves to the few
examples which are best known, and which bear the greatest analogy to
our particular case. The first to which this character ought to be
applied, is the House of Commons in Great Britain. The history of this
branch of the English Constitution, anterior to the date of Magna
Charta, is too obscure to yield instruction. The very existence of it
has been made a question among political antiquaries. The earliest
records of subsequent date prove that parliaments were to SIT only every
year; not that they were to be ELECTED every year. And even these annual
sessions were left so much at the discretion of the monarch, that, under
various pretexts, very long and dangerous intermissions were often
contrived by royal ambition. To remedy this grievance, it was provided
by a statute in the reign of Charles II, that the intermissions should
not be protracted beyond a period of three years. On the accession of
William III, when a revolution took place in the government, the
subject was still more seriously resumed, and it was declared to be
among the fundamental rights of the people that parliaments ought to be
held FREQUENTLY. By another statute, which passed a few years later in
the same reign, the term "frequently," which had alluded to the
triennial period settled in the time of Charles II, is reduced to a
precise meaning, it being expressly enacted that a new parliament shall
be called within three years after the termination of the former. The
last change, from three to seven years, is well known to have been
introduced pretty early in the present century, under on alarm for the
Hanoverian succession. From these facts it appears that the greatest
frequency of elections which has been deemed necessary in that kingdom,
for binding the representatives to their constituents, does not exceed a
triennial return of them. And if we may argue from the degree of liberty
retained even under septennial elections, and all the other vicious
ingredients in the parliamentary constitution, we cannot doubt that a
reduction of the period from seven to three years, with the other
necessary reforms, would so far extend the influence of the people over
their representatives as to satisfy us that biennial elections, under
the federal system, cannot possibly be dangerous to the requisite
dependence of the House of Representatives on their constituents.
Elections in Ireland, till of late, were regulated entirely by the
discretion of the crown, and were seldom repeated, except on the
accession of a new prince, or some other contingent event. The
parliament which commenced with George II. was continued throughout his
whole reign, a period of about thirty-five years. The only dependence of
the representatives on the people consisted in the right of the latter
to supply occasional vacancies by the election of new members, and in
the chance of some event which might produce a general new election. The
ability also of the Irish parliament to maintain the rights of their
constituents, so far as the disposition might exist, was extremely
shackled by the control of the crown over the subjects of their
deliberation. Of late these shackles, if I mistake not, have been
broken; and octennial parliaments have besides been established. What
effect may be produced by this partial reform, must be left to further
experience. The example of Ireland, from this view of it, can throw but
little light on the subject. As far as we can draw any conclusion from
it, it must be that if the people of that country have been able under
all these disadvantages to retain any liberty whatever, the advantage of
biennial elections would secure to them every degree of liberty, which
might depend on a due connection between their representatives and
themselves.
Let us bring our inquiries nearer home. The example of these States,
when British colonies, claims particular attention, at the same time
that it is so well known as to require little to be said on it. The
principle of representation, in one branch of the legislature at least,
was established in all of them. But the periods of election were
different. They varied from one to seven years. Have we any reason to
infer, from the spirit and conduct of the representatives of the people,
prior to the Revolution, that biennial elections would have been
dangerous to the public liberties? The spirit which everywhere displayed
itself at the commencement of the struggle, and which vanquished the
obstacles to independence, is the best of proofs that a sufficient
portion of liberty had been everywhere enjoyed to inspire both a sense
of its worth and a zeal for its proper enlargement This remark holds
good, as well with regard to the then colonies whose elections were
least frequent, as to those whose elections were most frequent Virginia
was the colony which stood first in resisting the parliamentary
usurpations of Great Britain; it was the first also in espousing, by
public act, the resolution of independence. In Virginia, nevertheless,
if I have not been misinformed, elections under the former government
were septennial. This particular example is brought into view, not as a
proof of any peculiar merit, for the priority in those instances was
probably accidental; and still less of any advantage in SEPTENNIAL
elections, for when compared with a greater frequency they are
inadmissible; but merely as a proof, and I conceive it to be a very
substantial proof, that the liberties of the people can be in no danger
from BIENNIAL elections.
The conclusion resulting from these examples will be not a little
strengthened by recollecting three circumstances. The first is, that the
federal legislature will possess a part only of that supreme legislative
authority which is vested completely in the British Parliament; and
which, with a few exceptions, was exercised by the colonial assemblies
and the Irish legislature. It is a received and well-founded maxim, that
where no other circumstances affect the case, the greater the power is,
the shorter ought to be its duration; and, conversely, the smaller the
power, the more safely may its duration be protracted. In the second
place, it has, on another occasion, been shown that the federal
legislature will not only be restrained by its dependence on its people,
as other legislative bodies are, but that it will be, moreover, watched
and controlled by the several collateral legislatures, which other
legislative bodies are not. And in the third place, no comparison can be
made between the means that will be possessed by the more permanent
branches of the federal government for seducing, if they should be
disposed to seduce, the House of Representatives from their duty to the
people, and the means of influence over the popular branch possessed by
the other branches of the government above cited. With less power,
therefore, to abuse, the federal representatives can be less tempted on
one side, and will be doubly watched on the other.
PUBLIUS
____
FEDERALIST No. 53
The Same Subject Continued (The House of Representatives)
For the Independent Journal.
Saturday, February 9, 1788.
MADISON
To the People of the State of New York:
I SHALL here, perhaps, be reminded of a current observation, "that where
annual elections end, tyranny begins." If it be true, as has often been
remarked, that sayings which become proverbial are generally founded in
reason, it is not less true, that when once established, they are often
applied to cases to which the reason of them does not extend. I need not
look for a proof beyond the case before us. What is the reason on which
this proverbial observation is founded? No man will subject himself to
the ridicule of pretending that any natural connection subsists between
the sun or the seasons, and the period within which human virtue can
bear the temptations of power. Happily for mankind, liberty is not, in
this respect, confined to any single point of time; but lies within
extremes, which afford sufficient latitude for all the variations which
may be required by the various situations and circumstances of civil
society. The election of magistrates might be, if it were found
expedient, as in some instances it actually has been, daily, weekly, or
monthly, as well as annual; and if circumstances may require a deviation
from the rule on one side, why not also on the other side? Turning our
attention to the periods established among ourselves, for the election
of the most numerous branches of the State legislatures, we find them by
no means coinciding any more in this instance, than in the elections of
other civil magistrates. In Connecticut and Rhode Island, the periods
are half-yearly. In the other States, South Carolina excepted, they are
annual. In South Carolina they are biennial -- as is proposed in the
federal government. Here is a difference, as four to one, between the
longest and shortest periods; and yet it would be not easy to show, that
Connecticut or Rhode Island is better governed, or enjoys a greater
share of rational liberty, than South Carolina; or that either the one
or the other of these States is distinguished in these respects, and by
these causes, from the States whose elections are different from both.
In searching for the grounds of this doctrine, I can discover but one,
and that is wholly inapplicable to our case. The important distinction
so well understood in America, between a Constitution established by the
people and unalterable by the government, and a law established by the
government and alterable by the government, seems to have been little
understood and less observed in any other country. Wherever the supreme
power of legislation has resided, has been supposed to reside also a
full power to change the form of the government. Even in Great Britain,
where the principles of political and civil liberty have been most
discussed, and where we hear most of the rights of the Constitution, it
is maintained that the authority of the Parliament is transcendent and
uncontrollable, as well with regard to the Constitution, as the ordinary
objects of legislative provision. They have accordingly, in several
instances, actually changed, by legislative acts, some of the most
fundamental articles of the government. They have in particular, on
several occasions, changed the period of election; and, on the last
occasion, not only introduced septennial in place of triennial
elections, but by the same act, continued themselves in place four years
beyond the term for which they were elected by the people. An attention
to these dangerous practices has produced a very natural alarm in the
votaries of free government, of which frequency of elections is the
corner-stone; and has led them to seek for some security to liberty,
against the danger to which it is exposed. Where no Constitution,
paramount to the government, either existed or could be obtained, no
constitutional security, similar to that established in the United
States, was to be attempted. Some other security, therefore, was to be
sought for; and what better security would the case admit, than that of
selecting and appealing to some simple and familiar portion of time, as
a standard for measuring the danger of innovations, for fixing the
national sentiment, and for uniting the patriotic exertions? The most
simple and familiar portion of time, applicable to the subject was that
of a year; and hence the doctrine has been inculcated by a laudable
zeal, to erect some barrier against the gradual innovations of an
unlimited government, that the advance towards tyranny was to be
calculated by the distance of departure from the fixed point of annual
elections. But what necessity can there be of applying this expedient to
a government limited, as the federal government will be, by the
authority of a paramount Constitution? Or who will pretend that the
liberties of the people of America will not be more secure under
biennial elections, unalterably fixed by such a Constitution, than those
of any other nation would be, where elections were annual, or even more
frequent, but subject to alterations by the ordinary power of the
government?
The second question stated is, whether biennial elections be necessary
or useful. The propriety of answering this question in the affirmative
will appear from several very obvious considerations.
No man can be a competent legislator who does not add to an upright
intention and a sound judgment a certain degree of knowledge of the
subjects on which he is to legislate. A part of this knowledge may be
acquired by means of information which lie within the compass of men in
private as well as public stations. Another part can only be attained,
or at least thoroughly attained, by actual experience in the station
which requires the use of it. The period of service, ought, therefore,
in all such cases, to bear some proportion to the extent of practical
knowledge requisite to the due performance of the service. The period of
legislative service established in most of the States for the more
numerous branch is, as we have seen, one year. The question then may be
put into this simple form: does the period of two years bear no greater
proportion to the knowledge requisite for federal legislation than one
year does to the knowledge requisite for State legislation? The very
statement of the question, in this form, suggests the answer that ought
to be given to it.
In a single State, the requisite knowledge relates to the existing laws
which are uniform throughout the State, and with which all the citizens
are more or less conversant; and to the general affairs of the State,
which lie within a small compass, are not very diversified, and occupy
much of the attention and conversation of every class of people. The
great theatre of the United States presents a very different scene. The
laws are so far from being uniform, that they vary in every State;
whilst the public affairs of the Union are spread throughout a very
extensive region, and are extremely diversified by the local affairs
connected with them, and can with difficulty be correctly learnt in any
other place than in the central councils to which a knowledge of them
will be brought by the representatives of every part of the empire. Yet
some knowledge of the affairs, and even of the laws, of all the States,
ought to be possessed by the members from each of the States. How can
foreign trade be properly regulated by uniform laws, without some
acquaintance with the commerce, the ports, the usages, and the
regulatious of the different States? How can the trade between the
different States be duly regulated, without some knowledge of their
relative situations in these and other respects? How can taxes be
judiciously imposed and effectually collected, if they be not
accommodated to the different laws and local circumstances relating to
these objects in the different States? How can uniform regulations for
the militia be duly provided, without a similar knowledge of many
internal circumstances by which the States are distinguished from each
other? These are the principal objects of federal legislation, and
suggest most forcibly the extensive information which the
representatives ought to acquire. The other interior objects will
require a proportional degree of information with regard to them.
It is true that all these difficulties will, by degrees, be very much
diminished. The most laborious task will be the proper inauguration of
the government and the primeval formation of a federal code.
Improvements on the first draughts will every year become both easier
and fewer. Past transactions of the government will be a ready and
accurate source of information to new members. The affairs of the Union
will become more and more objects of curiosity and conversation among
the citizens at large. And the increased intercourse among those of
different States will contribute not a little to diffuse a mutual
knowledge of their affairs, as this again will contribute to a general
assimilation of their manners and laws. But with all these abatements,
the business of federal legislation must continue so far to exceed, both
in novelty and difficulty, the legislative business of a single State,
as to justify the longer period of service assigned to those who are to
transact it.
A branch of knowledge which belongs to the acquirements of a federal
representative, and which has not been mentioned is that of foreign
affairs. In regulating our own commerce he ought to be not only
acquainted with the treaties between the United States and other
nations, but also with the commercial policy and laws of other nations.
He ought not to be altogether ignorant of the law of nations; for that,
as far as it is a proper object of municipal legislation, is submitted
to the federal government. And although the House of Representatives is
not immediately to participate in foreign negotiations and arrangements,
yet from the necessary connection between the several branches of public
affairs, those particular branches will frequently deserve attention in
the ordinary course of legislation, and will sometimes demand particular
legislative sanction and co-operation. Some portion of this knowledge
may, no doubt, be acquired in a man's closet; but some of it also can
only be derived from the public sources of information; and all of it
will be acquired to best effect by a practical attention to the subject
during the period of actual service in the legislature.
There are other considerations, of less importance, perhaps, but which
are not unworthy of notice. The distance which many of the
representatives will be obliged to travel, and the arrangements rendered
necessary by that circumstance, might be much more serious objections
with fit men to this service, if limited to a single year, than if
extended to two years. No argument can be drawn on this subject, from
the case of the delegates to the existing Congress. They are elected
annually, it is true; but their re-election is considered by the
legislative assemblies almost as a matter of course. The election of the
representatives by the people would not be governed by the same
principle.
A few of the members, as happens in all such assemblies, will possess
superior talents; will, by frequent reelections, become members of long
standing; will be thoroughly masters of the public business, and perhaps
not unwilling to avail themselves of those advantages. The greater the
proportion of new members, and the less the information of the bulk of
the members the more apt will they be to fall into the snares that may
be laid for them. This remark is no less applicable to the relation
which will subsist between the House of Representatives and the Senate.
It is an inconvenience mingled with the advantages of our frequent
elections even in single States, where they are large, and hold but one
legislative session in a year, that spurious elections cannot be
investigated and annulled in time for the decision to have its due
effect. If a return can be obtained, no matter by what unlawful means,
the irregular member, who takes his seat of course, is sure of holding
it a sufficient time to answer his purposes. Hence, a very pernicious
encouragement is given to the use of unlawful means, for obtaining
irregular returns. Were elections for the federal legislature to be
annual, this practice might become a very serious abuse, particularly in
the more distant States. Each house is, as it necessarily must be, the
judge of the elections, qualifications, and returns of its members; and
whatever improvements may be suggested by experience, for simplifying
and accelerating the process in disputed cases, so great a portion of a
year would unavoidably elapse, before an illegitimate member could be
dispossessed of his seat, that the prospect of such an event would be
little check to unfair and illicit means of obtaining a seat.
All these considerations taken together warrant us in affirming, that
biennial elections will be as useful to the affairs of the public as we
have seen that they will be safe to the liberty of the people.
PUBLIUS
____
FEDERALIST No. 54
The Apportionment of Members Among the States
From the New York Packet.
Tuesday, February 12, 1788.
MADISON
To the People of the State of New York:
THE next view which I shall take of the House of Representatives relates
to the appointment of its members to the several States which is to be
determined by the same rule with that of direct taxes.
It is not contended that the number of people in each State ought not to
be the standard for regulating the proportion of those who are to
represent the people of each State. The establishment of the same rule
for the appointment of taxes, will probably be as little contested;
though the rule itself in this case, is by no means founded on the same
principle. In the former case, the rule is understood to refer to the
personal rights of the people, with which it has a natural and universal
connection. In the latter, it has reference to the proportion of wealth,
of which it is in no case a precise measure, and in ordinary cases a
very unfit one. But notwithstanding the imperfection of the rule as
applied to the relative wealth and contributions of the States, it is
evidently the least objectionable among the practicable rules, and had
too recently obtained the general sanction of America, not to have found
a ready preference with the convention.
All this is admitted, it will perhaps be said; but does it follow, from
an admission of numbers for the measure of representation, or of slaves
combined with free citizens as a ratio of taxation, that slaves ought to
be included in the numerical rule of representation? Slaves are
considered as property, not as persons. They ought therefore to be
comprehended in estimates of taxation which are founded on property, and
to be excluded from representation which is regulated by a census of
persons. This is the objection, as I understand it, stated in its full
force. I shall be equally candid in stating the reasoning which may be
offered on the opposite side.
"We subscribe to the doctrine," might one of our Southern brethren
observe, "that representation relates more immediately to persons, and
taxation more immediately to property, and we join in the application of
this distinction to the case of our slaves. But we must deny the fact,
that slaves are considered merely as property, and in no respect
whatever as persons. The true state of the case is, that they partake of
both these qualities: being considered by our laws, in some respects, as
persons, and in other respects as property. In being compelled to labor,
not for himself, but for a master; in being vendible by one master to
another master; and in being subject at all times to be restrained in
his liberty and chastised in his body, by the capricious will of
another -- the slave may appear to be degraded from the human rank, and
classed with those irrational animals which fall under the legal
denomination of property. In being protected, on the other hand, in his
life and in his limbs, against the violence of all others, even the
master of his labor and his liberty; and in being punishable himself for
all violence committed against others -- the slave is no less evidently
regarded by the law as a member of the society, not as a part of the
irrational creation; as a moral person, not as a mere article of
property. The federal Constitution, therefore, decides with great
propriety on the case of our slaves, when it views them in the mixed
character of persons and of property. This is in fact their true
character. It is the character bestowed on them by the laws under which
they live; and it will not be denied, that these are the proper
criterion; because it is only under the pretext that the laws have
transformed the negroes into subjects of property, that a place is
disputed them in the computation of numbers; and it is admitted, that if
the laws were to restore the rights which have been taken away, the
negroes could no longer be refused an equal share of representation with
the other inhabitants.
"This question may be placed in another light. It is agreed on all sides,
that numbers are the best scale of wealth and taxation, as they are the
only proper scale of representation. Would the convention have been
impartial or consistent, if they had rejected the slaves from the list
of inhabitants, when the shares of representation were to be calculated,
and inserted them on the lists when the tariff of contributions was to
be adjusted? Could it be reasonably expected, that the Southern States
would concur in a system, which considered their slaves in some degree
as men, when burdens were to be imposed, but refused to consider them in
the same light, when advantages were to be conferred? Might not some
surprise also be expressed, that those who reproach the Southern States
with the barbarous policy of considering as property a part of their
human brethren, should themselves contend, that the government to which
all the States are to be parties, ought to consider this unfortunate
race more completely in the unnatural light of property, than the very
laws of which they complain?
"It may be replied, perhaps, that slaves are not included in the estimate
of representatives in any of the States possessing them. They neither
vote themselves nor increase the votes of their masters. Upon what
principle, then, ought they to be taken into the federal estimate of
representation? In rejecting them altogether, the Constitution would, in
this respect, have followed the very laws which have been appealed to as
the proper guide.
"This objection is repelled by a single abservation. It is a fundamental
principle of the proposed Constitution, that as the aggregate number of
representatives allotted to the several States is to be determined by a
federal rule, founded on the aggregate number of inhabitants, so the
right of choosing this allotted number in each State is to be exercised
by such part of the inhabitants as the State itself may designate. The
qualifications on which the right of suffrage depend are not, perhaps,
the same in any two States. In some of the States the difference is very
material. In every State, a certain proportion of inhabitants are
deprived of this right by the constitution of the State, who will be
included in the census by which the federal Constitution apportions the
representatives. In this point of view the Southern States might retort
the complaint, by insisting that the principle laid down by the
convention required that no regard should be had to the policy of
particular States towards their own inhabitants; and consequently, that
the slaves, as inhabitants, should have been admitted into the census
according to their full number, in like manner with other inhabitants,
who, by the policy of other States, are not admitted to all the rights
of citizens. A rigorous adherence, however, to this principle, is waived
by those who would be gainers by it. All that they ask is that equal
moderation be shown on the other side. Let the case of the slaves be
considered, as it is in truth, a peculiar one. Let the compromising
expedient of the Constitution be mutually adopted, which regards them as
inhabitants, but as debased by servitude below the equal level of free
inhabitants, which regards the SLAVE as divested of two fifths of the
MAN.
"After all, may not another ground be taken on which this article of the
Constitution will admit of a still more ready defense? We have hitherto
proceeded on the idea that representation related to persons only, and
not at all to property. But is it a just idea? Government is instituted
no less for protection of the property, than of the persons, of
individuals. The one as well as the other, therefore, may be considered
as represented by those who are charged with the government. Upon this
principle it is, that in several of the States, and particularly in the
State of New York, one branch of the government is intended more
especially to be the guardian of property, and is accordingly elected by
that part of the society which is most interested in this object of
government. In the federal Constitution, this policy does not prevail.
The rights of property are committed into the same hands with the
personal rights. Some attention ought, therefore, to be paid to property
in the choice of those hands.
"For another reason, the votes allowed in the federal legislature to the
people of each State, ought to bear some proportion to the comparative
wealth of the States. States have not, like individuals, an influence
over each other, arising from superior advantages of fortune. If the law
allows an opulent citizen but a single vote in the choice of his
representative, the respect and consequence which he derives from his
fortunate situation very frequently guide the votes of others to the
objects of his choice; and through this imperceptible channel the rights
of property are conveyed into the public representation. A State
possesses no such influence over other States. It is not probable that
the richest State in the Confederacy will ever influence the choice of a
single representative in any other State. Nor will the representatives
of the larger and richer States possess any other advantage in the
federal legislature, over the representatives of other States, than what
may result from their superior number alone. As far, therefore, as their
superior wealth and weight may justly entitle them to any advantage, it
ought to be secured to them by a superior share of representation. The
new Constitution is, in this respect, materially different from the
existing Confederation, as well as from that of the United Netherlands,
and other similar confederacies. In each of the latter, the efficacy of
the federal resolutions depends on the subsequent and voluntary
resolutions of the states composing the union. Hence the states, though
possessing an equal vote in the public councils, have an unequal
influence, corresponding with the unequal importance of these subsequent
and voluntary resolutions. Under the proposed Constitution, the federal
acts will take effect without the necessary intervention of the
individual States. They will depend merely on the majority of votes in
the federal legislature, and consequently each vote, whether proceeding
from a larger or smaller State, or a State more or less wealthy or
powerful, will have an equal weight and efficacy: in the same manner as
the votes individually given in a State legislature, by the
representatives of unequal counties or other districts, have each a
precise equality of value and effect; or if there be any difference in
the case, it proceeds from the difference in the personal character of
the individual representative, rather than from any regard to the extent
of the district from which he comes."
Such is the reasoning which an advocate for the Southern interests might
employ on this subject; and although it may appear to be a little
strained in some points, yet, on the whole, I must confess that it fully
reconciles me to the scale of representation which the convention have
established.
In one respect, the establishment of a common measure for representation
and taxation will have a very salutary effect. As the accuracy of the
census to be obtained by the Congress will necessarily depend, in a
considerable degree on the disposition, if not on the co-operation, of
the States, it is of great importance that the States should feel as
little bias as possible, to swell or to reduce the amount of their
numbers. Were their share of representation alone to be governed by this
rule, they would have an interest in exaggerating their inhabitants.
Were the rule to decide their share of taxation alone, a contrary
temptation would prevail. By extending the rule to both objects, the
States will have opposite interests, which will control and balance each
other, and produce the requisite impartiality.
PUBLIUS
____
FEDERALIST No. 55
The Total Number of the House of Representatives
For the Independent Journal.
Wednesday, February 13, 1788.
MADISON
To the People of the State of New York:
THE number of which the House of Representatives is to consist, forms
another and a very interesting point of view, under which this branch of
the federal legislature may be contemplated. Scarce any article, indeed,
in the whole Constitution seems to be rendered more worthy of attention,
by the weight of character and the apparent force of argument with which
it has been assailed. The charges exhibited against it are, first, that
so small a number of representatives will be an unsafe depositary of the
public interests; secondly, that they will not possess a proper
knowledge of the local circumstances of their numerous constituents;
thirdly, that they will be taken from that class of citizens which will
sympathize least with the feelings of the mass of the people, and be
most likely to aim at a permanent elevation of the few on the depression
of the many; fourthly, that defective as the number will be in the first
instance, it will be more and more disproportionate, by the increase of
the people, and the obstacles which will prevent a correspondent
increase of the representatives.
In general it may be remarked on this subject, that no political problem
is less susceptible of a precise solution than that which relates to the
number most convenient for a representative legislature; nor is there
any point on which the policy of the several States is more at variance,
whether we compare their legislative assemblies directly with each
other, or consider the proportions which they respectively bear to the
number of their constituents. Passing over the difference between the
smallest and largest States, as Delaware, whose most numerous branch
consists of twenty-one representatives, and Massachusetts, where it
amounts to between three and four hundred, a very considerable
difference is observable among States nearly equal in population. The
number of representatives in Pennsylvania is not more than one fifth of
that in the State last mentioned. New York, whose population is to that
of South Carolina as six to five, has little more than one third of the
number of representatives. As great a disparity prevails between the
States of Georgia and Delaware or Rhode Island. In Pennsylvania, the
representatives do not bear a greater proportion to their constituents
than of one for every four or five thousand. In Rhode Island, they bear
a proportion of at least one for every thousand. And according to the
constitution of Georgia, the proportion may be carried to one to every
ten electors; and must unavoidably far exceed the proportion in any of
the other States.
Another general remark to be made is, that the ratio between the
representatives and the people ought not to be the same where the latter
are very numerous as where they are very few. Were the representatives
in Virginia to be regulated by the standard in Rhode Island, they would,
at this time, amount to between four and five hundred; and twenty or
thirty years hence, to a thousand. On the other hand, the ratio of
Pennsylvania, if applied to the State of Delaware, would reduce the
representative assembly of the latter to seven or eight members. Nothing
can be more fallacious than to found our political calculations on
arithmetical principles. Sixty or seventy men may be more properly
trusted with a given degree of power than six or seven. But it does not
follow that six or seven hundred would be proportionably a better
depositary. And if we carry on the supposition to six or seven thousand,
the whole reasoning ought to be reversed. The truth is, that in all
cases a certain number at least seems to be necessary to secure the
benefits of free consultation and discussion, and to guard against too
easy a combination for improper purposes; as, on the other hand, the
number ought at most to be kept within a certain limit, in order to
avoid the confusion and intemperance of a multitude. In all very
numerous assemblies, of whatever character composed, passion never fails
to wrest the sceptre from reason. Had every Athenian citizen been a
Socrates, every Athenian assembly would still have been a mob.
It is necessary also to recollect here the observations which were
applied to the case of biennial elections. For the same reason that the
limited powers of the Congress, and the control of the State
legislatures, justify less frequent elections than the public safely
might otherwise require, the members of the Congress need be less
numerous than if they possessed the whole power of legislation, and were
under no other than the ordinary restraints of other legislative bodies.
With these general ideas in our mind, let us weigh the objections which
have been stated against the number of members proposed for the House of
Representatives. It is said, in the first place, that so small a number
cannot be safely trusted with so much power.
The number of which this branch of the legislature is to consist, at the
outset of the government, will be sixtyfive. Within three years a census
is to be taken, when the number may be augmented to one for every thirty
thousand inhabitants; and within every successive period of ten years
the census is to be renewed, and augmentations may continue to be made
under the above limitation. It will not be thought an extravagant
conjecture that the first census will, at the rate of one for every
thirty thousand, raise the number of representatives to at least one
hundred. Estimating the negroes in the proportion of three fifths, it
can scarcely be doubted that the population of the United States will by
that time, if it does not already, amount to three millions. At the
expiration of twenty-five years, according to the computed rate of
increase, the number of representatives will amount to two hundred, and
of fifty years, to four hundred. This is a number which, I presume, will
put an end to all fears arising from the smallness of the body. I take
for granted here what I shall, in answering the fourth objection,
hereafter show, that the number of representatives will be augmented
from time to time in the manner provided by the Constitution. On a
contrary supposition, I should admit the objection to have very great
weight indeed.
The true question to be decided then is, whether the smallness of the
number, as a temporary regulation, be dangerous to the public liberty?
Whether sixty-five members for a few years, and a hundred or two hundred
for a few more, be a safe depositary for a limited and well-guarded
power of legislating for the United States? I must own that I could not
give a negative answer to this question, without first obliterating
every impression which I have received with regard to the present genius
of the people of America, the spirit which actuates the State
legislatures, and the principles which are incorporated with the
political character of every class of citizens I am unable to conceive
that the people of America, in their present temper, or under any
circumstances which can speedily happen, will choose, and every second
year repeat the choice of, sixty-five or a hundred men who would be
disposed to form and pursue a scheme of tyranny or treachery. I am
unable to conceive that the State legislatures, which must feel so many
motives to watch, and which possess so many means of counteracting, the
federal legislature, would fail either to detect or to defeat a
conspiracy of the latter against the liberties of their common
constituents. I am equally unable to conceive that there are at this
time, or can be in any short time, in the United States, any sixty-five
or a hundred men capable of recommending themselves to the choice of the
people at large, who would either desire or dare, within the short space
of two years, to betray the solemn trust committed to them. What change
of circumstances, time, and a fuller population of our country may
produce, requires a prophetic spirit to declare, which makes no part of
my pretensions. But judging from the circumstances now before us, and
from the probable state of them within a moderate period of time, I must
pronounce that the liberties of America cannot be unsafe in the number
of hands proposed by the federal Constitution.
From what quarter can the danger proceed? Are we afraid of foreign gold?
If foreign gold could so easily corrupt our federal rulers and enable
them to ensnare and betray their constituents, how has it happened that
we are at this time a free and independent nation? The Congress which
conducted us through the Revolution was a less numerous body than their
successors will be; they were not chosen by, nor responsible to, their
fellowcitizens at large; though appointed from year to year, and
recallable at pleasure, they were generally continued for three years,
and prior to the ratification of the federal articles, for a still
longer term. They held their consultations always under the veil of
secrecy; they had the sole transaction of our affairs with foreign
nations; through the whole course of the war they had the fate of their
country more in their hands than it is to be hoped will ever be the case
with our future representatives; and from the greatness of the prize at
stake, and the eagerness of the party which lost it, it may well be
supposed that the use of other means than force would not have been
scrupled. Yet we know by happy experience that the public trust was not
betrayed; nor has the purity of our public councils in this particular
ever suffered, even from the whispers of calumny.
Is the danger apprehended from the other branches of the federal
government? But where are the means to be found by the President, or the
Senate, or both? Their emoluments of office, it is to be presumed, will
not, and without a previous corruption of the House of Representatives
cannot, more than suffice for very different purposes; their private
fortunes, as they must allbe American citizens, cannot possibly be
sources of danger. The only means, then, which they can possess, will be
in the dispensation of appointments. Is it here that suspicion rests her
charge? Sometimes we are told that this fund of corruption is to be
exhausted by the President in subduing the virtue of the Senate. Now,
the fidelity of the other House is to be the victim. The improbability
of such a mercenary and perfidious combination of the several members of
government, standing on as different foundations as republican
principles will well admit, and at the same time accountable to the
society over which they are placed, ought alone to quiet this
apprehension. But, fortunately, the Constitution has provided a still
further safeguard. The members of the Congress are rendered ineligible
to any civil offices that may be created, or of which the emoluments may
be increased, during the term of their election. No offices therefore
can be dealt out to the existing members but such as may become vacant
by ordinary casualties: and to suppose that these would be sufficient to
purchase the guardians of the people, selected by the people themselves,
is to renounce every rule by which events ought to be calculated, and to
substitute an indiscriminate and unbounded jealousy, with which all
reasoning must be vain. The sincere friends of liberty, who give
themselves up to the extravagancies of this passion, are not aware of
the injury they do their own cause. As there is a degree of depravity in
mankind which requires a certain degree of circumspection and distrust,
so there are other qualities in human nature which justify a certain
portion of esteem and confidence. Republican government presupposes the
existence of these qualities in a higher degree than any other form.
Were the pictures which have been drawn by the political jealousy of
some among us faithful likenesses of the human character, the inference
would be, that there is not sufficient virtue among men for
self-government; and that nothing less than the chains of despotism can
restrain them from destroying and devouring one another.
PUBLIUS
____
FEDERALIST No. 56
The Same Subject Continued (The Total Number of the House of
Representatives)
For the Independent Journal.
Saturday, February 16, 1788.
MADISON
To the People of the State of New York:
THE SECOND charge against the House of Representatives is, that it will
be too small to possess a due knowledge of the interests of its
constituents.
As this objection evidently proceeds from a comparison of the proposed
number of representatives with the great extent of the United States,
the number of their inhabitants, and the diversity of their interests,
without taking into view at the same time the circumstances which will
distinguish the Congress from other legislative bodies, the best answer
that can be given to it will be a brief explanation of these
peculiarities.
It is a sound and important principle that the representative ought to
be acquainted with the interests and circumstances of his constituents.
But this principle can extend no further than to those circumstances and
interests to which the authority and care of the representative relate.
An ignorance of a variety of minute and particular objects, which do not
lie within the compass of legislation, is consistent with every
attribute necessary to a due performance of the legislative trust. In
determining the extent of information required in the exercise of a
particular authority, recourse then must be had to the objects within
the purview of that authority.
What are to be the objects of federal legislation? Those which are of
most importance, and which seem most to require local knowledge, are
commerce, taxation, and the militia.
A proper regulation of commerce requires much information, as has been
elsewhere remarked; but as far as this information relates to the laws
and local situation of each individual State, a very few representatives
would be very sufficient vehicles of it to the federal councils.
Taxation will consist, in a great measure, of duties which will be
involved in the regulation of commerce. So far the preceding remark is
applicable to this object. As far as it may consist of internal
collections, a more diffusive knowledge of the circumstances of the
State may be necessary. But will not this also be possessed in
sufficient degree by a very few intelligent men, diffusively elected
within the State? Divide the largest State into ten or twelve districts,
and it will be found that there will be no peculiar local interests in
either, which will not be within the knowledge of the representative of
the district. Besides this source of information, the laws of the State,
framed by representatives from every part of it, will be almost of
themselves a sufficient guide. In every State there have been made, and
must continue to be made, regulations on this subject which will, in
many cases, leave little more to be done by the federal legislature,
than to review the different laws, and reduce them in one general act. A
skillful individual in his closet with all the local codes before him,
might compile a law on some subjects of taxation for the whole union,
without any aid from oral information, and it may be expected that
whenever internal taxes may be necessary, and particularly in cases
requiring uniformity throughout the States, the more simple objects will
be preferred. To be fully sensible of the facility which will be given
to this branch of federal legislation by the assistance of the State
codes, we need only suppose for a moment that this or any other State
were divided into a number of parts, each having and exercising within
itself a power of local legislation. Is it not evident that a degree of
local information and preparatory labor would be found in the several
volumes of their proceedings, which would very much shorten the labors
of the general legislature, and render a much smaller number of members
sufficient for it? The federal councils will derive great advantage from
another circumstance. The representatives of each State will not only
bring with them a considerable knowledge of its laws, and a local
knowledge of their respective districts, but will probably in all cases
have been members, and may even at the very time be members, of the
State legislature, where all the local information and interests of the
State are assembled, and from whence they may easily be conveyed by a
very few hands into the legislature of the United States.
[The observations made on the subject of taxation apply with greater
force to the case of the militia. For however different the rules of
discipline may be in different States, they are the same throughout each
particular State; and depend on circumstances which can differ but
little in different parts of the same State.][E1]
[With regard to the regulation of the militia, there are scarcely any
circumstances in reference to which local knowledge can be said to be
necessary. The general face of the country, whether mountainous or level,
most fit for the operations of infantry or cavalry, is almost the only
consideration of this nature that can occur. The art of war teaches
general principles of organization, movement, and discipline, which
apply universally.][E1]
The attentive reader will discern that the reasoning here used, to prove
the sufficiency of a moderate number of representatives, does not in any
respect contradict what was urged on another occasion with regard to the
extensive information which the representatives ought to possess, and
the time that might be necessary for acquiring it. This information, so
far as it may relate to local objects, is rendered necessary and
difficult, not by a difference of laws and local circumstances within a
single State, but of those among different States. Taking each State by
itself, its laws are the same, and its interests but little diversified.
A few men, therefore, will possess all the knowledge requisite for a
proper representation of them. Were the interests and affairs of each
individual State perfectly simple and uniform, a knowledge of them in
one part would involve a knowledge of them in every other, and the whole
State might be competently represented by a single member taken from any
part of it. On a comparison of the different States together, we find a
great dissimilarity in their laws, and in many other circumstances
connected with the objects of federal legislation, with all of which the
federal representatives ought to have some acquaintance. Whilst a few
representatives, therefore, from each State, may bring with them a due
knowledge of their own State, every representative will have much
information to acquire concerning all the other States. The changes of
time, as was formerly remarked, on the comparative situation of the
different States, will have an assimilating effect. The effect of time
on the internal affairs of the States, taken singly, will be just the
contrary. At present some of the States are little more than a society
of husbandmen. Few of them have made much progress in those branches of
industry which give a variety and complexity to the affairs of a nation.
These, however, will in all of them be the fruits of a more advanced
population, and will require, on the part of each State, a fuller
representation. The foresight of the convention has accordingly taken
care that the progress of population may be accompanied with a proper
increase of the representative branch of the government.
The experience of Great Britain, which presents to mankind so many
political lessons, both of the monitory and exemplary kind, and which
has been frequently consulted in the course of these inquiries,
corroborates the result of the reflections which we have just made. The
number of inhabitants in the two kingdoms of England and Scotland cannot
be stated at less than eight millions. The representatives of these
eight millions in the House of Commons amount to five hundred and
fifty-eight. Of this number, one ninth are elected by three hundred and
sixty-four persons, and one half, by five thousand seven hundred and
twenty-three persons.[1] It cannot be supposed that the half thus
elected, and who do not even reside among the people at large, can add
any thing either to the security of the people against the government,
or to the knowledge of their circumstances and interests in the
legislative councils. On the contrary, it is notorious, that they are
more frequently the representatives and instruments of the executive
magistrate, than the guardians and advocates of the popular rights. They
might therefore, with great propriety, be considered as something more
than a mere deduction from the real representatives of the nation. We
will, however, consider them in this light alone, and will not extend
the deduction to a considerable number of others, who do not reside
among their constitutents, are very faintly connected with them, and
have very little particular knowledge of their affairs. With all these
concessions, two hundred and seventy-nine persons only will be the
depository of the safety, interest, and happiness of eight millions that
is to say, there will be one representative only to maintain the rights
and explain the situation of TWENTY-EIGHT THOUSAND SIX HUNDRED AND
SEVENTY constitutents, in an assembly exposed to the whole force of
executive influence, and extending its authority to every object of
legislation within a nation whose affairs are in the highest degree
diversified and complicated. Yet it is very certain, not only that a
valuable portion of freedom has been preserved under all these
circumstances, but that the defects in the British code are chargeable,
in a very small proportion, on the ignorance of the legislature
concerning the circumstances of the people. Allowing to this case the
weight which is due to it, and comparing it with that of the House of
Representatives as above explained it seems to give the fullest
assurance, that a representative for every THIRTY THOUSAND INHABITANTS
will render the latter both a safe and competent guardian of the
interests which will be confided to it.
PUBLIUS
1. Burgh's "Political Disquisitions."
E1. Two versions of this paragraph appear in different editions.
____
FEDERALIST No. 57
The Alleged Tendency of the New Plan to Elevate the Few at the
Expense of the Many Considered in Connection with Representation
From the New York Packet.
Tuesday, February 19, 1788.
MADISON
To the People of the State of New York:
THE THIRD charge against the House of Representatives is, that it will
be taken from that class of citizens which will have least sympathy with
the mass of the people, and be most likely to aim at an ambitious
sacrifice of the many to the aggrandizement of the few.
Of all the objections which have been framed against the federal
Constitution, this is perhaps the most extraordinary. Whilst the
objection itself is levelled against a pretended oligarchy, the
principle of it strikes at the very root of republican government.
The aim of every political constitution is, or ought to be, first to
obtain for rulers men who possess most wisdom to discern, and most
virtue to pursue, the common good of the society; and in the next place,
to take the most effectual precautions for keeping them virtuous whilst
they continue to hold their public trust. The elective mode of obtaining
rulers is the characteristic policy of republican government. The means
relied on in this form of government for preventing their degeneracy are
numerous and various. The most effectual one, is such a limitation of
the term of appointments as will maintain a proper responsibility to the
people.
Let me now ask what circumstance there is in the constitution of the
House of Representatives that violates the principles of republican
government, or favors the elevation of the few on the ruins of the many?
Let me ask whether every circumstance is not, on the contrary, strictly
conformable to these principles, and scrupulously impartial to the
rights and pretensions of every class and description of citizens?
Who are to be the electors of the federal representatives? Not the rich,
more than the poor; not the learned, more than the ignorant; not the
haughty heirs of distinguished names, more than the humble sons of
obscurity and unpropitious fortune. The electors are to be the great
body of the people of the United States. They are to be the same who
exercise the right in every State of electing the corresponding branch
of the legislature of the State.
Who are to be the objects of popular choice? Every citizen whose merit
may recommend him to the esteem and confidence of his country. No
qualification of wealth, of birth, of religious faith, or of civil
profession is permitted to fetter the judgement or disappoint the
inclination of the people.
If we consider the situation of the men on whom the free suffrages of
their fellow-citizens may confer the representative trust, we shall find
it involving every security which can be devised or desired for their
fidelity to their constituents.
In the first place, as they will have been distinguished by the
preference of their fellow-citizens, we are to presume that in general
they will be somewhat distinguished also by those qualities which
entitle them to it, and which promise a sincere and scrupulous regard to
the nature of their engagements.
In the second place, they will enter into the public service under
circumstances which cannot fail to produce a temporary affection at
least to their constituents. There is in every breast a sensibility to
marks of honor, of favor, of esteem, and of confidence, which, apart
from all considerations of interest, is some pledge for grateful and
benevolent returns. Ingratitude is a common topic of declamation against
human nature; and it must be confessed that instances of it are but too
frequent and flagrant, both in public and in private life. But the
universal and extreme indignation which it inspires is itself a proof of
the energy and prevalence of the contrary sentiment.
In the third place, those ties which bind the representative to his
constituents are strengthened by motives of a more selfish nature. His
pride and vanity attach him to a form of government which favors his
pretensions and gives him a share in its honors and distinctions.
Whatever hopes or projects might be entertained by a few aspiring
characters, it must generally happen that a great proportion of the men
deriving their advancement from their influence with the people, would
have more to hope from a preservation of the favor, than from
innovations in the government subversive of the authority of the people.
All these securities, however, would be found very insufficient without
the restraint of frequent elections. Hence, in the fourth place, the
House of Representatives is so constituted as to support in the members
an habitual recollection of their dependence on the people. Before the
sentiments impressed on their minds by the mode of their elevation can
be effaced by the exercise of power, they will be compelled to
anticipate the moment when their power is to cease, when their exercise
of it is to be reviewed, and when they must descend to the level from
which they were raised; there forever to remain unless a faithful
discharge of their trust shall have established their title to a renewal
of it.
I will add, as a fifth circumstance in the situation of the House of
Representatives, restraining them from oppressive measures, that they
can make no law which will not have its full operation on themselves and
their friends, as well as on the great mass of the society. This has
always been deemed one of the strongest bonds by which human policy can
connect the rulers and the people together. It creates between them that
communion of interests and sympathy of sentiments, of which few
governments have furnished examples; but without which every government
degenerates into tyranny. If it be asked, what is to restrain the House
of Representatives from making legal discriminations in favor of
themselves and a particular class of the society? I answer: the genius
of the whole system; the nature of just and constitutional laws; and
above all, the vigilant and manly spirit which actuates the people of
America -- a spirit which nourishes freedom, and in return is nourished
by it.
If this spirit shall ever be so far debased as to tolerate a law not
obligatory on the legislature, as well as on the people, the people will
be prepared to tolerate any thing but liberty.
Such will be the relation between the House of Representatives and their
constituents. Duty, gratitude, interest, ambition itself, are the chords
by which they will be bound to fidelity and sympathy with the great mass
of the people. It is possible that these may all be insufficient to
control the caprice and wickedness of man. But are they not all that
government will admit, and that human prudence can devise? Are they not
the genuine and the characteristic means by which republican government
provides for the liberty and happiness of the people? Are they not the
identical means on which every State government in the Union relies for
the attainment of these important ends? What then are we to understand
by the objection which this paper has combated? What are we to say to
the men who profess the most flaming zeal for republican government, yet
boldly impeach the fundamental principle of it; who pretend to be
champions for the right and the capacity of the people to choose their
own rulers, yet maintain that they will prefer those only who will
immediately and infallibly betray the trust committed to them?
Were the objection to be read by one who had not seen the mode
prescribed by the Constitution for the choice of representatives, he
could suppose nothing less than that some unreasonable qualification of
property was annexed to the right of suffrage; or that the right of
eligibility was limited to persons of particular families or fortunes;
or at least that the mode prescribed by the State constitutions was in
some respect or other, very grossly departed from. We have seen how far
such a supposition would err, as to the two first points. Nor would it,
in fact, be less erroneous as to the last. The only difference
discoverable between the two cases is, that each representative of the
United States will be elected by five or six thousand citizens; whilst
in the individual States, the election of a representative is left to
about as many hundreds. Will it be pretended that this difference is
sufficient to justify an attachment to the State governments, and an
abhorrence to the federal government? If this be the point on which the
objection turns, it deserves to be examined.
Is it supported by REASON? This cannot be said, without maintaining that
five or six thousand citizens are less capable of choosing a fit
representative, or more liable to be corrupted by an unfit one, than
five or six hundred. Reason, on the contrary, assures us, that as in so
great a number a fit representative would be most likely to be found, so
the choice would be less likely to be diverted from him by the intrigues
of the ambitious or the ambitious or the bribes of the rich.
Is the CONSEQUENCE from this doctrine admissible? If we say that five or
six hundred citizens are as many as can jointly exercise their right of
suffrage, must we not deprive the people of the immediate choice of
their public servants, in every instance where the administration of the
government does not require as many of them as will amount to one for
that number of citizens?
Is the doctrine warranted by FACTS? It was shown in the last paper, that
the real representation in the British House of Commons very little
exceeds the proportion of one for every thirty thousand inhabitants.
Besides a variety of powerful causes not existing here, and which favor
in that country the pretensions of rank and wealth, no person is
eligible as a representative of a county, unless he possess real estate
of the clear value of six hundred pounds sterling per year; nor of a
city or borough, unless he possess a like estate of half that annual
value. To this qualification on the part of the county representatives
is added another on the part of the county electors, which restrains the
right of suffrage to persons having a freehold estate of the annual
value of more than twenty pounds sterling, according to the present rate
of money. Notwithstanding these unfavorable circumstances, and
notwithstanding some very unequal laws in the British code, it cannot be
said that the representatives of the nation have elevated the few on the
ruins of the many.
But we need not resort to foreign experience on this subject. Our own is
explicit and decisive. The districts in New Hampshire in which the
senators are chosen immediately by the people, are nearly as large as
will be necessary for her representatives in the Congress. Those of
Massachusetts are larger than will be necessary for that purpose; and
those of New York still more so. In the last State the members of
Assembly for the cities and counties of New York and Albany are elected
by very nearly as many voters as will be entitled to a representative in
the Congress, calculating on the number of sixty-five representatives
only. It makes no difference that in these senatorial districts and
counties a number of representatives are voted for by each elector at
the same time. If the same electors at the same time are capable of
choosing four or five representatives, they cannot be incapable of
choosing one. Pennsylvania is an additional example. Some of her
counties, which elect her State representatives, are almost as large as
her districts will be by which her federal representatives will be
elected. The city of Philadelphia is supposed to contain between fifty
and sixty thousand souls. It will therefore form nearly two districts
for the choice of federal representatives. It forms, however, but one
county, in which every elector votes for each of its representatives in
the State legislature. And what may appear to be still more directly to
our purpose, the whole city actually elects a SINGLE MEMBER for the
executive council. This is the case in all the other counties of the
State.
Are not these facts the most satisfactory proofs of the fallacy which
has been employed against the branch of the federal government under
consideration? Has it appeared on trial that the senators of New
Hampshire, Massachusetts, and New York, or the executive council of
Pennsylvania, or the members of the Assembly in the two last States,
have betrayed any peculiar disposition to sacrifice the many to the few,
or are in any respect less worthy of their places than the
representatives and magistrates appointed in other States by very small
divisions of the people?
But there are cases of a stronger complexion than any which I have yet
quoted. One branch of the legislature of Connecticut is so constituted
that each member of it is elected by the whole State. So is the governor
of that State, of Massachusetts, and of this State, and the president of
New Hampshire. I leave every man to decide whether the result of any one
of these experiments can be said to countenance a suspicion, that a
diffusive mode of choosing representatives of the people tends to
elevate traitors and to undermine the public liberty.
PUBLIUS
____
FEDERALIST No. 58
Objection That The Number of Members Will Not Be Augmented as the
Progress of Population Demands Considered
For the Independent Journal
Wednesday, February 20, 1788
MADISON
To the People of the State of New York:
THE remaining charge against the House of Representatives, which I am to
examine, is grounded on a supposition that the number of members will
not be augmented from time to time, as the progress of population may
demand.
It has been admitted, that this objection, if well supported, would have
great weight. The following observations will show that, like most other
objections against the Constitution, it can only proceed from a partial
view of the subject, or from a jealousy which discolors and disfigures
every object which is beheld.
1. Those who urge the objection seem not to have recollected that the
federal Constitution will not suffer by a comparison with the State
constitutions, in the security provided for a gradual augmentation of
the number of representatives. The number which is to prevail in the
first instance is declared to be temporary. Its duration is limited to
the short term of three years.
Within every successive term of ten years a census of inhabitants is to
be repeated. The unequivocal objects of these regulations are, first, to
readjust, from time to time, the apportionment of representatives to the
number of inhabitants, under the single exception that each State shall
have one representative at least; secondly, to augment the number of
representatives at the same periods, under the sole limitation that the
whole number shall not exceed one for every thirty thousand inhabitants.
If we review the constitutions of the several States, we shall find that
some of them contain no determinate regulations on this subject, that
others correspond pretty much on this point with the federal
Constitution, and that the most effectual security in any of them is
resolvable into a mere directory provision.
2. As far as experience has taken place on this subject, a gradual
increase of representatives under the State constitutions has at least
kept pace with that of the constituents, and it appears that the former
have been as ready to concur in such measures as the latter have been to
call for them.
3. There is a peculiarity in the federal Constitution which insures a
watchful attention in a majority both of the people and of their
representatives to a constitutional augmentation of the latter. The
peculiarity lies in this, that one branch of the legislature is a
representation of citizens, the other of the States: in the former,
consequently, the larger States will have most weight; in the latter,
the advantage will be in favor of the smaller States. From this
circumstance it may with certainty be inferred that the larger States
will be strenuous advocates for increasing the number and weight of that
part of the legislature in which their influence predominates. And it so
happens that four only of the largest will have a majority of the whole
votes in the House of Representatives. Should the representatives or
people, therefore, of the smaller States oppose at any time a reasonable
addition of members, a coalition of a very few States will be sufficient
to overrule the opposition; a coalition which, notwithstanding the
rivalship and local prejudices which might prevent it on ordinary
occasions, would not fail to take place, when not merely prompted by
common interest, but justified by equity and the principles of the
Constitution.
It may be alleged, perhaps, that the Senate would be prompted by like
motives to an adverse coalition; and as their concurrence would be
indispensable, the just and constitutional views of the other branch
might be defeated. This is the difficulty which has probably created the
most serious apprehensions in the jealous friends of a numerous
representation. Fortunately it is among the difficulties which, existing
only in appearance, vanish on a close and accurate inspection. The
following reflections will, if I mistake not, be admitted to be
conclusive and satisfactory on this point.
Notwithstanding the equal authority which will subsist between the two
houses on all legislative subjects, except the originating of money
bills, it cannot be doubted that the House, composed of the greater
number of members, when supported by the more powerful States, and
speaking the known and determined sense of a majority of the people,
will have no small advantage in a question depending on the comparative
firmness of the two houses.
This advantage must be increased by the consciousness, felt by the same
side of being supported in its demands by right, by reason, and by the
Constitution; and the consciousness, on the opposite side, of contending
against the force of all these solemn considerations.
It is farther to be considered, that in the gradation between the
smallest and largest States, there are several, which, though most
likely in general to arrange themselves among the former are too little
removed in extent and population from the latter, to second an
opposition to their just and legitimate pretensions. Hence it is by no
means certain that a majority of votes, even in the Senate, would be
unfriendly to proper augmentations in the number of representatives.
It will not be looking too far to add, that the senators from all the
new States may be gained over to the just views of the House of
Representatives, by an expedient too obvious to be overlooked. As these
States will, for a great length of time, advance in population with
peculiar rapidity, they will be interested in frequent reapportionments
of the representatives to the number of inhabitants. The large States,
therefore, who will prevail in the House of Representatives, will have
nothing to do but to make reapportionments and augmentations mutually
conditions of each other; and the senators from all the most growing
States will be bound to contend for the latter, by the interest which
their States will feel in the former.
These considerations seem to afford ample security on this subject, and
ought alone to satisfy all the doubts and fears which have been indulged
with regard to it. Admitting, however, that they should all be
insufficient to subdue the unjust policy of the smaller States, or their
predominant influence in the councils of the Senate, a constitutional
and infallible resource still remains with the larger States, by which
they will be able at all times to accomplish their just purposes. The
House of Representatives cannot only refuse, but they alone can propose,
the supplies requisite for the support of government. They, in a word,
hold the purse -- that powerful instrument by which we behold, in the
history of the British Constitution, an infant and humble representation
of the people gradually enlarging the sphere of its activity and
importance, and finally reducing, as far as it seems to have wished, all
the overgrown prerogatives of the other branches of the government. This
power over the purse may, in fact, be regarded as the most complete and
effectual weapon with which any constitution can arm the immediate
representatives of the people, for obtaining a redress of every
grievance, and for carrying into effect every just and salutary measure.
But will not the House of Representatives be as much interested as the
Senate in maintaining the government in its proper functions, and will
they not therefore be unwilling to stake its existence or its reputation
on the pliancy of the Senate? Or, if such a trial of firmness between
the two branches were hazarded, would not the one be as likely first to
yield as the other? These questions will create no difficulty with those
who reflect that in all cases the smaller the number, and the more
permanent and conspicuous the station, of men in power, the stronger
must be the interest which they will individually feel in whatever
concerns the government. Those who represent the dignity of their
country in the eyes of other nations, will be particularly sensible to
every prospect of public danger, or of dishonorable stagnation in public
affairs. To those causes we are to ascribe the continual triumph of the
British House of Commons over the other branches of the government,
whenever the engine of a money bill has been employed. An absolute
inflexibility on the side of the latter, although it could not have
failed to involve every department of the state in the general
confusion, has neither been apprehended nor experienced. The utmost
degree of firmness that can be displayed by the federal Senate or
President, will not be more than equal to a resistance in which they
will be supported by constitutional and patriotic principles.
In this review of the Constitution of the House of Representatives, I
have passed over the circumstances of economy, which, in the present
state of affairs, might have had some effect in lessening the temporary
number of representatives, and a disregard of which would probably have
been as rich a theme of declamation against the Constitution as has been
shown by the smallness of the number proposed. I omit also any remarks
on the difficulty which might be found, under present circumstances, in
engaging in the federal service a large number of such characters as the
people will probably elect. One observation, however, I must be
permitted to add on this subject as claiming, in my judgment, a very
serious attention. It is, that in all legislative assemblies the greater
the number composing them may be, the fewer will be the men who will in
fact direct their proceedings. In the first place, the more numerous an
assembly may be, of whatever characters composed, the greater is known
to be the ascendency of passion over reason. In the next place, the
larger the number, the greater will be the proportion of members of
limited information and of weak capacities. Now, it is precisely on
characters of this description that the eloquence and address of the few
are known to act with all their force. In the ancient republics, where
the whole body of the people assembled in person, a single orator, or an
artful statesman, was generally seen to rule with as complete a sway as
if a sceptre had been placed in his single hand. On the same principle,
the more multitudinous a representative assembly may be rendered, the
more it will partake of the infirmities incident to collective meetings
of the people. Ignorance will be the dupe of cunning, and passion the
slave of sophistry and declamation. The people can never err more than
in supposing that by multiplying their representatives beyond a certain
limit, they strengthen the barrier against the government of a few.
Experience will forever admonish them that, on the contrary, AFTER
SECURING A SUFFICIENT NUMBER FOR THE PURPOSES OF SAFETY, OF LOCAL
INFORMATION, AND OF DIFFUSIVE SYMPATHY WITH THE WHOLE SOCIETY, they will
counteract their own views by every addition to their representatives.
The countenance of the government may become more democratic, but the
soul that animates it will be more oligarchic. The machine will be
enlarged, but the fewer, and often the more secret, will be the springs
by which its motions are directed.
As connected with the objection against the number of representatives,
may properly be here noticed, that which has been suggested against the
number made competent for legislative business. It has been said that
more than a majority ought to have been required for a quorum; and in
particular cases, if not in all, more than a majority of a quorum for a
decision. That some advantages might have resulted from such a
precaution, cannot be denied. It might have been an additional shield to
some particular interests, and another obstacle generally to hasty and
partial measures. But these considerations are outweighed by the
inconveniences in the opposite scale. In all cases where justice or the
general good might require new laws to be passed, or active measures to
be pursued, the fundamental principle of free government would be
reversed. It would be no longer the majority that would rule: the power
would be transferred to the minority. Were the defensive privilege
limited to particular cases, an interested minority might take advantage
of it to screen themselves from equitable sacrifices to the general
weal, or, in particular emergencies, to extort unreasonable indulgences.
Lastly, it would facilitate and foster the baneful practice of
secessions; a practice which has shown itself even in States where a
majority only is required; a practice subversive of all the principles
of order and regular government; a practice which leads more directly to
public convulsions, and the ruin of popular governments, than any other
which has yet been displayed among us.
PUBLIUS
____
FEDERALIST No. 59
Concerning the Power of Congress to Regulate the Election of Members
From the New York Packet.
Friday, February 22, 1788.
HAMILTON
To the People of the State of New York:
THE natural order of the subject leads us to consider, in this place,
that provision of the Constitution which authorizes the national
legislature to regulate, in the last resort, the election of its own
members. It is in these words: "The TIMES, PLACES, and MANNER of holding
elections for senators and representatives shall be prescribed in each
State by the legislature thereof; but the Congress may, at any time, by
law, make or alter SUCH REGULATIONS, except as to the PLACES of choosing
senators."[1] This provision has not only been declaimed against by
those who condemn the Constitution in the gross, but it has been
censured by those who have objected with less latitude and greater
moderation; and, in one instance it has been thought exceptionable by a
gentleman who has declared himself the advocate of every other part of
the system.
I am greatly mistaken, notwithstanding, if there be any article in the
whole plan more completely defensible than this. Its propriety rests
upon the evidence of this plain proposition, that EVERY GOVERNMENT OUGHT
TO CONTAIN IN ITSELF THE MEANS OF ITS OWN PRESERVATION. Every just
reasoner will, at first sight, approve an adherence to this rule, in the
work of the convention; and will disapprove every deviation from it
which may not appear to have been dictated by the necessity of
incorporating into the work some particular ingredient, with which a
rigid conformity to the rule was incompatible. Even in this case, though
he may acquiesce in the necessity, yet he will not cease to regard and
to regret a departure from so fundamental a principle, as a portion of
imperfection in the system which may prove the seed of future weakness,
and perhaps anarchy.
It will not be alleged, that an election law could have been framed and
inserted in the Constitution, which would have been always applicable to
every probable change in the situation of the country; and it will
therefore not be denied, that a discretionary power over elections ought
to exist somewhere. It will, I presume, be as readily conceded, that
there were only three ways in which this power could have been
reasonably modified and disposed: that it must either have been lodged
wholly in the national legislature, or wholly in the State legislatures,
or primarily in the latter and ultimately in the former. The last mode
has, with reason, been preferred by the convention. They have submitted
the regulation of elections for the federal government, in the first
instance, to the local administrations; which, in ordinary cases, and
when no improper views prevail, may be both more convenient and more
satisfactory; but they have reserved to the national authority a right
to interpose, whenever extraordinary circumstances might render that
interposition necessary to its safety.
Nothing can be more evident, than that an exclusive power of regulating
elections for the national government, in the hands of the State
legislatures, would leave the existence of the Union entirely at their
mercy. They could at any moment annihilate it, by neglecting to provide
for the choice of persons to administer its affairs. It is to little
purpose to say, that a neglect or omission of this kind would not be
likely to take place. The constitutional possibility of the thing,
without an equivalent for the risk, is an unanswerable objection. Nor
has any satisfactory reason been yet assigned for incurring that risk.
The extravagant surmises of a distempered jealousy can never be
dignified with that character. If we are in a humor to presume abuses of
power, it is as fair to presume them on the part of the State
governments as on the part of the general government. And as it is more
consonant to the rules of a just theory, to trust the Union with the
care of its own existence, than to transfer that care to any other
hands, if abuses of power are to be hazarded on the one side or on the
other, it is more rational to hazard them where the power would
naturally be placed, than where it would unnaturally be placed.
Suppose an article had been introduced into the Constitution, empowering
the United States to regulate the elections for the particular States,
would any man have hesitated to condemn it, both as an unwarrantable
transposition of power, and as a premeditated engine for the destruction
of the State governments? The violation of principle, in this case,
would have required no comment; and, to an unbiased observer, it will
not be less apparent in the project of subjecting the existence of the
national government, in a similar respect, to the pleasure of the State
governments. An impartial view of the matter cannot fail to result in a
conviction, that each, as far as possible, ought to depend on itself for
its own preservation.
As an objection to this position, it may be remarked that the
constitution of the national Senate would involve, in its full extent,
the danger which it is suggested might flow from an exclusive power in
the State legislatures to regulate the federal elections. It may be
alleged, that by declining the appointment of Senators, they might at
any time give a fatal blow to the Union; and from this it may be
inferred, that as its existence would be thus rendered dependent upon
them in so essential a point, there can be no objection to intrusting
them with it in the particular case under consideration. The interest of
each State, it may be added, to maintain its representation in the
national councils, would be a complete security against an abuse of the
trust.
This argument, though specious, will not, upon examination, be found
solid. It is certainly true that the State legislatures, by forbearing
the appointment of senators, may destroy the national government. But it
will not follow that, because they have a power to do this in one
instance, they ought to have it in every other. There are cases in which
the pernicious tendency of such a power may be far more decisive,
without any motive equally cogent with that which must have regulated
the conduct of the convention in respect to the formation of the Senate,
to recommend their admission into the system. So far as that
construction may expose the Union to the possibility of injury from the
State legislatures, it is an evil; but it is an evil which could not
have been avoided without excluding the States, in their political
capacities, wholly from a place in the organization of the national
government. If this had been done, it would doubtless have been
interpreted into an entire dereliction of the federal principle; and
would certainly have deprived the State governments of that absolute
safeguard which they will enjoy under this provision. But however wise
it may have been to have submitted in this instance to an inconvenience,
for the attainment of a necessary advantage or a greater good, no
inference can be drawn from thence to favor an accumulation of the evil,
where no necessity urges, nor any greater good invites.
It may be easily discerned also that the national government would run a
much greater risk from a power in the State legislatures over the
elections of its House of Representatives, than from their power of
appointing the members of its Senate. The senators are to be chosen for
the period of six years; there is to be a rotation, by which the seats
of a third part of them are to be vacated and replenished every two
years; and no State is to be entitled to more than two senators; a
quorum of the body is to consist of sixteen members. The joint result of
these circumstances would be, that a temporary combination of a few
States to intermit the appointment of senators, could neither annul the
existence nor impair the activity of the body; and it is not from a
general and permanent combination of the States that we can have any
thing to fear. The first might proceed from sinister designs in the
leading members of a few of the State legislatures; the last would
suppose a fixed and rooted disaffection in the great body of the people,
which will either never exist at all, or will, in all probability,
proceed from an experience of the inaptitude of the general government
to the advancement of their happiness in which event no good citizen
could desire its continuance.
But with regard to the federal House of Representatives, there is
intended to be a general election of members once in two years. If the
State legislatures were to be invested with an exclusive power of
regulating these elections, every period of making them would be a
delicate crisis in the national situation, which might issue in a
dissolution of the Union, if the leaders of a few of the most important
States should have entered into a previous conspiracy to prevent an
election.
I shall not deny, that there is a degree of weight in the observation,
that the interests of each State, to be represented in the federal
councils, will be a security against the abuse of a power over its
elections in the hands of the State legislatures. But the security will
not be considered as complete, by those who attend to the force of an
obvious distinction between the interest of the people in the public
felicity, and the interest of their local rulers in the power and
consequence of their offices. The people of America may be warmly
attached to the government of the Union, at times when the particular
rulers of particular States, stimulated by the natural rivalship of
power, and by the hopes of personal aggrandizement, and supported by a
strong faction in each of those States, may be in a very opposite
temper. This diversity of sentiment between a majority of the people,
and the individuals who have the greatest credit in their councils, is
exemplified in some of the States at the present moment, on the present
question. The scheme of separate confederacies, which will always
nultiply the chances of ambition, will be a never failing bait to all
such influential characters in the State administrations as are capable
of preferring their own emolument and advancement to the public weal.
With so effectual a weapon in their hands as the exclusive power of
regulating elections for the national government, a combination of a few
such men, in a few of the most considerable States, where the temptation
will always be the strongest, might accomplish the destruction of the
Union, by seizing the opportunity of some casual dissatisfaction among
the people (and which perhaps they may themselves have excited), to
discontinue the choice of members for the federal House of
Representatives. It ought never to be forgotten, that a firm union of
this country, under an efficient government, will probably be an
increasing object of jealousy to more than one nation of Europe; and
that enterprises to subvert it will sometimes originate in the intrigues
of foreign powers, and will seldom fail to be patronized and abetted by
some of them. Its preservation, therefore ought in no case that can be
avoided, to be committed to the guardianship of any but those whose
situation will uniformly beget an immediate interest in the faithful and
vigilant performance of the trust.
PUBLIUS
1. 1st clause, 4th section, of the 1st article.
____
FEDERALIST No. 60
The Same Subject Continued
(Concerning the Power of Congress to Regulate the Election of Members)
From the Independent Journal.
Saturday, February 23, 1788.
HAMILTON
To the People of the State of New York:
WE HAVE seen, that an uncontrollable power over the elections to the
federal government could not, without hazard, be committed to the State
legislatures. Let us now see, what would be the danger on the other
side; that is, from confiding the ultimate right of regulating its own
elections to the Union itself. It is not pretended, that this right
would ever be used for the exclusion of any State from its share in the
representation. The interest of all would, in this respect at least, be
the security of all. But it is alleged, that it might be employed in
such a manner as to promote the election of some favorite class of men
in exclusion of others, by confining the places of election to
particular districts, and rendering it impracticable to the citizens at
large to partake in the choice. Of all chimerical suppositions, this
seems to be the most chimerical. On the one hand, no rational
calculation of probabilities would lead us to imagine that the
disposition which a conduct so violent and extraordinary would imply,
could ever find its way into the national councils; and on the other, it
may be concluded with certainty, that if so improper a spirit should
ever gain admittance into them, it would display itself in a form
altogether different and far more decisive.
The improbability of the attempt may be satisfactorily inferred from
this single reflection, that it could never be made without causing an
immediate revolt of the great body of the people, headed and directed by
the State governments. It is not difficult to conceive that this
characteristic right of freedom may, in certain turbulent and factious
seasons, be violated, in respect to a particular class of citizens, by a
victorious and overbearing majority; but that so fundamental a
privilege, in a country so situated and enlightened, should be invaded
to the prejudice of the great mass of the people, by the deliberate
policy of the government, without occasioning a popular revolution, is
altogether inconceivable and incredible.
In addition to this general reflection, there are considerations of a
more precise nature, which forbid all apprehension on the subject. The
dissimilarity in the ingredients which will compose the national
government, and Õstill more in the manner in which they will be brought
into action in its various branches, must form a powerful obstacle to a
concert of views in any partial scheme of elections. There is sufficient
diversity in the state of property, in the genius, manners, and habits
of the people of the different parts of the Union, to occasion a
material diversity of disposition in their representatives towards the
different ranks and conditions in society. And though an intimate
intercourse under the same government will promote a gradual
assimilation in some of these respects, yet there are causes, as well
physical as moral, which may, in a greater or less degree, permanently
nourish different propensities and inclinations in this respect. But the
circumstance which will be likely to have the greatest influence in the
matter, will be the dissimilar modes of constituting the several
component parts of the government. The House of Representatives being to
be elected immediately by the people, the Senate by the State
legislatures, the President by electors chosen for that purpose by the
people, there would be little probability of a common interest to cement
these different branches in a predilection for any particular class of
electors.
As to the Senate, it is impossible that any regulation of "time and
manner," which is all that is proposed to be submitted to the national
government in respect to that body, can affect the spirit which will
direct the choice of its members. The collective sense of the State
legislatures can never be influenced by extraneous circumstances of that
sort; a consideration which alone ought to satisfy us that the
discrimination apprehended would never be attempted. For what inducement
could the Senate have to concur in a preference in which itself would
not be included? Or to what purpose would it be established, in
reference to one branch of the legislature, if it could not be extended
to the other? The composition of the one would in this case counteract
that of the other. And we can never suppose that it would embrace the
appointments to the Senate, unless we can at the same time suppose the
voluntary co-operation of the State legislatures. If we make the latter
supposition, it then becomes immaterial where the power in question is
placed -- whether in their hands or in those of the Union.
But what is to be the object of this capricious partiality in the
national councils? Is it to be exercised in a discrimination between the
different departments of industry, or between the different kinds of
property, or between the different degrees of property? Will it lean in
favor of the landed interest, or the moneyed interest, or the mercantile
interest, or the manufacturing interest? Or, to speak in the fashionable
language of the adversaries to the Constitution, will it court the
elevation of "the wealthy and the well-born," to the exclusion and
debasement of all the rest of the society?
If this partiality is to be exerted in favor of those who are concerned
in any particular description of industry or property, I presume it will
readily be admitted, that the competition for it will lie between landed
men and merchants. And I scruple not to affirm, that it is infinitely
less likely that either of them should gain an ascendant in the national
councils, than that the one or the other of them should predominate in
all the local councils. The inference will be, that a conduct tending to
give an undue preference to either is much less to be dreaded from the
former than from the latter.
The several States are in various degrees addicted to agriculture and
commerce. In most, if not all of them, agriculture is predominant. In a
few of them, however, commerce nearly divides its empire, and in most of
them has a considerable share of influence. In proportion as either
prevails, it will be conveyed into the national representation; and for
the very reason, that this will be an emanation from a greater variety
of interests, and in much more various proportions, than are to be found
in any single State, it will be much less apt to espouse either of them
with a decided partiality, than the representation of any single State.
In a country consisting chiefly of the cultivators of land, where the
rules of an equal representation obtain, the landed interest must, upon
the whole, preponderate in the government. As long as this interest
prevails in most of the State legislatures, so long it must maintain a
correspondent superiority in the national Senate, which will generally
be a faithful copy of the majorities of those assemblies. It cannot
therefore be presumed, that a sacrifice of the landed to the mercantile
class will ever be a favorite object of this branch of the federal
legislature. In applying thus particularly to the Senate a general
observation suggested by the situation of the country, I am governed by
the consideration, that the credulous votaries of State power cannot,
upon their own principles, suspect, that the State legislatures would be
warped from their duty by any external influence. But in reality the
same situation must have the same effect, in the primative composition
at least of the federal House of Representatives: an improper bias
towards the mercantile class is as little to be expected from this
quarter as from the other.
In order, perhaps, to give countenance to the objection at any rate, it
may be asked, is there not danger of an opposite bias in the national
government, which may dispose it to endeavor to secure a monopoly of the
federal administration to the landed class? As there is little
likelihood that the supposition of such a bias will have any terrors for
those who would be immediately injured by it, a labored answer to this
question will be dispensed with. It will be sufficient to remark, first,
that for the reasons elsewhere assigned, it is less likely that any
decided partiality should prevail in the councils of the Union than in
those of any of its members. Secondly, that there would be no temptation
to violate the Constitution in favor of the landed class, because that
class would, in the natural course of things, enjoy as great a
preponderancy as itself could desire. And thirdly, that men accustomed
to investigate the sources of public prosperity upon a large scale, must
be too well convinced of the utility of commerce, to be inclined to
inflict upon it so deep a wound as would result from the entire
exclusion of those who would best understand its interest from a share
in the management of them. The importance of commerce, in the view of
revenue alone, must effectually guard it against the enmity of a body
which would be continually importuned in its favor, by the urgent calls
of public necessity.
I the rather consult brevity in discussing the probability of a
preference founded upon a discrimination between the different kinds of
industry and property, because, as far as I understand the meaning of
the objectors, they contemplate a discrimination of another kind. They
appear to have in view, as the objects of the preference with which they
endeavor to alarm us, those whom they designate by the description of
"the wealthy and the well-born." These, it seems, are to be exalted to
an odious pre-eminence over the rest of their fellow-citizens. At one
time, however, their elevation is to be a necessary consequence of the
smallness of the representative body; at another time it is to be
effected by depriving the people at large of the opportunity of
exercising their right of suffrage in the choice of that body.
But upon what principle is the discrimination of the places of election
to be made, in order to answer the purpose of the meditated preference?
Are "the wealthy and the well-born," as they are called, confined to
particular spots in the several States? Have they, by some miraculous
instinct or foresight, set apart in each of them a common place of
residence? Are they only to be met with in the towns or cities? Or are
they, on the contrary, scattered over the face of the country as avarice
or chance may have happened to cast their own lot or that of their
predecessors? If the latter is the case, (as every intelligent man knows
it to be,[1]) is it not evident that the policy of confining the places
of election to particular districts would be as subversive of its own
aim as it would be exceptionable on every other account? The truth is,
that there is no method of securing to the rich the preference
apprehended, but by prescribing qualifications of property either for
those who may elect or be elected. But this forms no part of the power
to be conferred upon the national government. Its authority would be
expressly restricted to the regulation of the TIMES, the PLACES, the
MANNER of elections. The qualifications of the persons who may choose or
be chosen, as has been remarked upon other occasions, are defined and
fixed in the Constitution, and are unalterable by the legislature.
Let it, however, be admitted, for argument sake, that the expedient
suggested might be successful; and let it at the same time be equally
taken for granted that all the scruples which a sense of duty or an
apprehension of the danger of the experiment might inspire, were
overcome in the breasts of the national rulers, still I imagine it will
hardly be pretended that they could ever hope to carry such an
enterprise into execution without the aid of a military force sufficient
to subdue the resistance of the great body of the people. The
improbability of the existence of a force equal to that object has been
discussed and demonstrated in different parts of these papers; but that
the futility of the objection under consideration may appear in the
strongest light, it shall be conceded for a moment that such a force
might exist, and the national government shall be supposed to be in the
actual possession of it. What will be the conclusion? With a disposition
to invade the essential rights of the community, and with the means of
gratifying that disposition, is it presumable that the persons who were
actuated by it would amuse themselves in the ridiculous task of
fabricating election laws for securing a preference to a favorite class
of men? Would they not be likely to prefer a conduct better adapted to
their own immediate aggrandizement? Would they not rather boldly resolve
to perpetuate themselves in office by one decisive act of usurpation,
than to trust to precarious expedients which, in spite of all the
precautions that might accompany them, might terminate in the
dismission, disgrace, and ruin of their authors? Would they not fear
that citizens, not less tenacious than conscious of their rights, would
flock from the remote extremes of their respective States to the places
of election, to voerthrow their tyrants, and to substitute men who would
be disposed to avenge the violated majesty of the people?
PUBLIUS
1. Particularly in the Southern States and in this State.
____
FEDERALIST No. 61
The Same Subject Continued
(Concerning the Power of Congress to Regulate the Election of Members)
From the New York Packet.
Tuesday, February 26, 1788.
HAMILTON
To the People of the State of New York:
THE more candid opposers of the provision respecting elections,
contained in the plan of the convention, when pressed in argument, will
sometimes concede the propriety of that provision; with this
qualification, however, that it ought to have been accompanied with a
declaration, that all elections should be had in the counties where the
electors resided. This, say they, was a necessary precaution against an
abuse of the power. A declaration of this nature would certainly have
been harmless; so far as it would have had the effect of quieting
apprehensions, it might not have been undesirable. But it would, in
fact, have afforded little or no additional security against the danger
apprehended; and the want of it will never be considered, by an
impartial and judicious examiner, as a serious, still less as an
insuperable, objection to the plan. The different views taken of the
subject in the two preceding papers must be sufficient to satisfy all
dispassionate and discerning men, that if the public liberty should ever
be the victim of the ambition of the national rulers, the power under
examination, at least, will be guiltless of the sacrifice.
If those who are inclined to consult their jealousy only, would exercise
it in a careful inspection of the several State constitutions, they
would find little less room for disquietude and alarm, from the latitude
which most of them allow in respect to elections, than from the latitude
which is proposed to be allowed to the national government in the same
respect. A review of their situation, in this particular, would tend
greatly to remove any ill impressions which may remain in regard to this
matter. But as that view would lead into long and tedious details, I
shall content myself with the single example of the State in which I
write. The constitution of New York makes no other provision for
LOCALITY of elections, than that the members of the Assembly shall be
elected in the COUNTIES; those of the Senate, in the great districts
into which the State is or may be divided: these at present are four in
number, and comprehend each from two to six counties. It may readily be
perceived that it would not be more difficult to the legislature of New
York to defeat the suffrages of the citizens of New York, by confining
elections to particular places, than for the legislature of the United
States to defeat the suffrages of the citizens of the Union, by the like
expedient. Suppose, for instance, the city of Albany was to be appointed
the sole place of election for the county and district of which it is a
part, would not the inhabitants of that city speedily become the only
electors of the members both of the Senate and Assembly for that county
and district? Can we imagine that the electors who reside in the remote
subdivisions of the counties of Albany, Saratoga, Cambridge, etc., or in
any part of the county of Montgomery, would take the trouble to come to
the city of Albany, to give their votes for members of the Assembly or
Senate, sooner than they would repair to the city of New York, to
participate in the choice of the members of the federal House of
Representatives? The alarming indifference discoverable in the exercise
of so invaluable a privilege under the existing laws, which afford every
facility to it, furnishes a ready answer to this question. And,
abstracted from any experience on the subject, we can be at no loss to
determine, that when the place of election is at an INCONVENIENT
DISTANCE from the elector, the effect upon his conduct will be the same
whether that distance be twenty miles or twenty thousand miles. Hence it
must appear, that objections to the particular modification of the
federal power of regulating elections will, in substance, apply with
equal force to the modification of the like power in the constitution of
this State; and for this reason it will be impossible to acquit the one,
and to condemn the other. A similar comparison would lead to the same
conclusion in respect to the constitutions of most of the other States.
If it should be said that defects in the State constitutions furnish no
apology for those which are to be found in the plan proposed, I answer,
that as the former have never been thought chargeable with inattention
to the security of liberty, where the imputations thrown on the latter
can be shown to be applicable to them also, the presumption is that they
are rather the cavilling refinements of a predetermined opposition, than
the well-founded inferences of a candid research after truth. To those
who are disposed to consider, as innocent omissions in the State
constitutions, what they regard as unpardonable blemishes in the plan of
the convention, nothing can be said; or at most, they can only be asked
to assign some substantial reason why the representatives of the people
in a single State should be more impregnable to the lust of power, or
other sinister motives, than the representatives of the people of the
United States? If they cannot do this, they ought at least to prove to
us that it is easier to subvert the liberties of three millions of
people, with the advantage of local governments to head their
opposition, than of two hundred thousand people who are destitute of
that advantage. And in relation to the point immediately under
consideration, they ought to convince us that it is less probable that a
predominant faction in a single State should, in order to maintain its
superiority, incline to a preference of a particular class of electors,
than that a similar spirit should take possession of the representatives
of thirteen States, spread over a vast region, and in several respects
distinguishable from each other by a diversity of local circumstances,
prejudices, and interests.
Hitherto my observations have only aimed at a vindication of the
provision in question, on the ground of theoretic propriety, on that of
the danger of placing the power elsewhere, and on that of the safety of
placing it in the manner proposed. But there remains to be mentioned a
positive advantage which will result from this disposition, and which
could not as well have been obtained from any other: I allude to the
circumstance of uniformity in the time of elections for the federal
House of Representatives. It is more than possible that this uniformity
may be found by experience to be of great importance to the public
welfare, both as a security against the perpetuation of the same spirit
in the body, and as a cure for the diseases of faction. If each State
may choose its own time of election, it is possible there may be at
least as many different periods as there are months in the year. The
times of election in the several States, as they are now established for
local purposes, vary between extremes as wide as March and November. The
consequence of this diversity would be that there could never happen a
total dissolution or renovation of the body at one time. If an improper
spirit of any kind should happen to prevail in it, that spirit would be
apt to infuse itself into the new members, as they come forward in
succession. The mass would be likely to remain nearly the same,
assimilating constantly to itself its gradual accretions. There is a
contagion in example which few men have sufficient force of mind to
resist. I am inclined to think that treble the duration in office, with
the condition of a total dissolution of the body at the same time, might
be less formidable to liberty than one third of that duration subject to
gradual and successive alterations.
Uniformity in the time of elections seems not less requisite for
executing the idea of a regular rotation in the Senate, and for
conveniently assembling the legislature at a stated period in each year.
It may be asked, Why, then, could not a time have been fixed in the
Constitution? As the most zealous adversaries of the plan of the
convention in this State are, in general, not less zealous admirers of
the constitution of the State, the question may be retorted, and it may
be asked, Why was not a time for the like purpose fixed in the
constitution of this State? No better answer can be given than that it
was a matter which might safely be entrusted to legislative discretion;
and that if a time had been appointed, it might, upon experiment, have
been found less convenient than some other time. The same answer may be
given to the question put on the other side. And it may be added that
the supposed danger of a gradual change being merely speculative, it
would have been hardly advisable upon that speculation to establish, as
a fundamental point, what would deprive several States of the
convenience of having the elections for their own governments and for
the national government at the same epochs.
PUBLIUS
____
FEDERALIST No. 62
The Senate
For the Independent Journal.
Wednesday, February 27, 1788
MADISON
To the People of the State of New York:
HAVING examined the constitution of the House of Representatives, and
answered such of the objections against it as seemed to merit notice, I
enter next on the examination of the Senate. The heads into which this
member of the government may be considered are: I. The qualification of
senators; II. The appointment of them by the State legislatures; III.
The equality of representation in the Senate; IV. The number of
senators, and the term for which they are to be elected; V. The powers
vested in the Senate.
I. The qualifications proposed for senators, as distinguished from those
of representatives, consist in a more advanced age and a longer period
of citizenship. A senator must be thirty years of age at least; as a
representative must be twenty-five. And the former must have been a
citizen nine years; as seven years are required for the latter. The
propriety of these distinctions is explained by the nature of the
senatorial trust, which, requiring greater extent of information and
tability of character, requires at the same time that the senator should
have reached a period of life most likely to supply these advantages;
and which, participating immediately in transactions with foreign
nations, ought to be exercised by none who are not thoroughly weaned
from the prepossessions and habits incident to foreign birth and
education. The term of nine years appears to be a prudent mediocrity
between a total exclusion of adopted citizens, whose merits and talents
may claim a share in the public confidence, and an indiscriminate and
hasty admission of them, which might create a channel for foreign
influence on the national councils.
II. It is equally unnecessary to dilate on the appointment of senators
by the State legislatures. Among the various modes which might have been
devised for constituting this branch of the government, that which has
been proposed by the convention is probably the most congenial with the
public opinion. It is recommended by the double advantage of favoring a
select appointment, and of giving to the State governments such an
agency in the formation of the federal government as must secure the
authority of the former, and may form a convenient link between the two
systems.
III. The equality of representation in the Senate is another point,
which, being evidently the result of compromise between the opposite
pretensions of the large and the small States, does not call for much
discussion. If indeed it be right, that among a people thoroughly
incorporated into one nation, every district ought to have a
PROPORTIONAL share in the government, and that among independent and
sovereign States, bound together by a simple league, the parties,
however unequal in size, ought to have an EQUAL share in the common
councils, it does not appear to be without some reason that in a
compound republic, partaking both of the national and federal character,
the government ought to be founded on a mixture of the principles of
proportional and equal representation. But it is superfluous to try, by
the standard of theory, a part of the Constitution which is allowed on
all hands to be the result, not of theory, but "of a spirit of amity,
and that mutual deference and concession which the peculiarity of our
political situation rendered indispensable." A common government, with
powers equal to its objects, is called for by the voice, and still more
loudly by the political situation, of America. A government founded on
principles more consonant to the wishes of the larger States, is not
likely to be obtained from the smaller States. The only option, then,
for the former, lies between the proposed government and a government
still more objectionable. Under this alternative, the advice of prudence
must be to embrace the lesser evil; and, instead of indulging a
fruitless anticipation of the possible mischiefs which may ensue, to
contemplate rather the advantageous consequences which may qualify the
sacrifice.
In this spirit it may be remarked, that the equal vote allowed to each
State is at once a constitutional recognition of the portion of
sovereignty remaining in the individual States, and an instrument for
preserving that residuary sovereignty. So far the equality ought to be
no less acceptable to the large than to the small States; since they are
not less solicitous to guard, by every possible expedient, against an
improper consolidation of the States into one simple republic.
Another advantage accruing from this ingredient in the constitution of
the Senate is, the additional impediment it must prove against improper
acts of legislation. No law or resolution can now be passed without the
concurrence, first, of a majority of the people, and then, of a majority
of the States. It must be acknowledged that this complicated check on
legislation may in some instances be injurious as well as beneficial;
and that the peculiar defense which it involves in favor of the smaller
States, would be more rational, if any interests common to them, and
distinct from those of the other States, would otherwise be exposed to
peculiar danger. But as the larger States will always be able, by their
power over the supplies, to defeat unreasonable exertions of this
prerogative of the lesser States, and as the faculty and excess of
law-making seem to be the diseases to which our governments are most
liable, it is not impossible that this part of the Constitution may be
more convenient in practice than it appears to many in contemplation.
IV. The number of senators, and the duration of their appointment, come
next to be considered. In order to form an accurate judgment on both of
these points, it will be proper to inquire into the purposes which are
to be answered by a senate; and in order to ascertain these, it will be
necessary to review the inconveniences which a republic must suffer from
the want of such an institution.
First. It is a misfortune incident to republican government, though in a
less degree than to other governments, that those who administer it may
forget their obligations to their constituents, and prove unfaithful to
their important trust. In this point of view, a senate, as a second
branch of the legislative assembly, distinct from, and dividing the
power with, a first, must be in all cases a salutary check on the
government. It doubles the security to the people, by requiring the
concurrence of two distinct bodies in schemes of usurpation or perfidy,
where the ambition or corruption of one would otherwise be sufficient.
This is a precaution founded on such clear principles, and now so well
understood in the United States, that it would be more than superfluous
to enlarge on it. I will barely remark, that as the improbability of
sinister combinations will be in proportion to the dissimilarity in the
genius of the two bodies, it must be politic to distinguish them from
each other by every circumstance which will consist with a due harmony
in all proper measures, and with the genuine principles of republican
government.
Second. The necessity of a senate is not less indicated by the
propensity of all single and numerous assemblies to yield to the impulse
of sudden and violent passions, and to be seduced by factious leaders
into intemperate and pernicious resolutions. Examples on this subject
might be cited without number; and from proceedings within the United
States, as well as from the history of other nations. But a position
that will not be contradicted, need not be proved. All that need be
remarked is, that a body which is to correct this infirmity ought itself
to be free from it, and consequently ought to be less numerous. It
ought, moreover, to possess great firmness, and consequently ought to
hold its authority by a tenure of considerable duration.
Third. Another defect to be supplied by a senate lies in a want of due
acquaintance with the objects and principles of legislation. It is not
possible that an assembly of men called for the most part from pursuits
of a private nature, continued in appointment for a short time, and led
by no permanent motive to devote the intervals of public occupation to a
study of the laws, the affairs, and the comprehensive interests of their
country, should, if left wholly to themselves, escape a variety of
important errors in the exercise of their legislative trust. It may be
affirmed, on the best grounds, that no small share of the present
embarrassments of America is to be charged on the blunders of our
governments; and that these have proceeded from the heads rather than
the hearts of most of the authors of them. What indeed are all the
repealing, explaining, and amending laws, which fill and disgrace our
voluminous codes, but so many monuments of deficient wisdom; so many
impeachments exhibited by each succeeding against each preceding
session; so many admonitions to the people, of the value of those aids
which may be expected from a well-constituted senate?
A good government implies two things: first, fidelity to the object of
government, which is the happiness of the people; secondly, a knowledge
of the means by which that object can be best attained. Some governments
are deficient in both these qualities; most governments are deficient in
the first. I scruple not to assert, that in American governments too
little attention has been paid to the last. The federal Constitution
avoids this error; and what merits particular notice, it provides for
the last in a mode which increases the security for the first.
Fourth. The mutability in the public councils arising from a rapid
succession of new members, however qualified they may be, points out, in
the strongest manner, the necessity of some stable institution in the
government. Every new election in the States is found to change one half
of the representatives. From this change of men must proceed a change of
opinions; and from a change of opinions, a change of measures. But a
continual change even of good measures is inconsistent with every rule
of prudence and every prospect of success. The remark is verified in
private life, and becomes more just, as well as more important, in
national transactions.
To trace the mischievous effects of a mutable government would fill a
volume. I will hint a few only, each of which will be perceived to be a
source of innumerable others.
In the first place, it forfeits the respect and confidence of other
nations, and all the advantages connected with national character. An
individual who is observed to be inconstant to his plans, or perhaps to
carry on his affairs without any plan at all, is marked at once, by all
prudent people, as a speedy victim to his own unsteadiness and folly.
His more friendly neighbors may pity him, but all will decline to
connect their fortunes with his; and not a few will seize the
opportunity of making their fortunes out of his. One nation is to
another what one individual is to another; with this melancholy
distinction perhaps, that the former, with fewer of the benevolent
emotions than the latter, are under fewer restraints also from taking
undue advantage from the indiscretions of each other. Every nation,
consequently, whose affairs betray a want of wisdom and stability, may
calculate on every loss which can be sustained from the more systematic
policy of their wiser neighbors. But the best instruction on this
subject is unhappily conveyed to America by the example of her own
situation. She finds that she is held in no respect by her friends; that
she is the derision of her enemies; and that she is a prey to every
nation which has an interest in speculating on her fluctuating councils
and embarrassed affairs.
The internal effects of a mutable policy are still more calamitous. It
poisons the blessing of liberty itself. It will be of little avail to
the people, that the laws are made by men of their own choice, if the
laws be so voluminous that they cannot be read, or so incoherent that
they cannot be understood; if they be repealed or revised before they
are promulgated, or undergo such incessant changes that no man, who
knows what the law is to-day, can guess what it will be to-morrow. Law
is defined to be a rule of action; but how can that be a rule, which is
little known, and less fixed?
Another effect of public instability is the unreasonable advantage it
gives to the sagacious, the enterprising, and the moneyed few over the
industrious and uniformed mass of the people. Every new regulation
concerning commerce or revenue, or in any way affecting the value of the
different species of property, presents a new harvest to those who watch
the change, and can trace its consequences; a harvest, reared not by
themselves, but by the toils and cares of the great body of their
fellow-citizens. This is a state of things in which it may be said with
some truth that laws are made for the FEW, not for the MANY.
In another point of view, great injury results from an unstable
government. The want of confidence in the public councils damps every
useful undertaking, the success and profit of which may depend on a
continuance of existing arrangements. What prudent merchant will hazard
his fortunes in any new branch of commerce when he knows not but that
his plans may be rendered unlawful before they can be executed? What
farmer or manufacturer will lay himself out for the encouragement given
to any particular cultivation or establishment, when he can have no
assurance that his preparatory labors and advances will not render him a
victim to an inconstant government? In a word, no great improvement or
laudable enterprise can go forward which requires the auspices of a
steady system of national policy.
But the most deplorable effect of all is that diminution of attachment
and reverence which steals into the hearts of the people, towards a
political system which betrays so many marks of infirmity, and
disappoints so many of their flattering hopes. No government, any more
than an individual, will long be respected without being truly
respectable; nor be truly respectable, without possessing a certain
portion of order and stability.
PUBLIUS
____
FEDERALIST No. 63
The Senate Continued
For the Independent Journal.
Saturday, March 1, 1788
MADISON
To the People of the State of New York:
A FIFTH desideratum, illustrating the utility of a senate, is the want
of a due sense of national character. Without a select and stable member
of the government, the esteem of foreign powers will not only be
forfeited by an unenlightened and variable policy, proceeding from the
causes already mentioned, but the national councils will not possess
that sensibility to the opinion of the world, which is perhaps not less
necessary in order to merit, than it is to obtain, its respect and
confidence.
An attention to the judgment of other nations is important to every
government for two reasons: the one is, that, independently of the
merits of any particular plan or measure, it is desirable, on various
accounts, that it should appear to other nations as the offspring of a
wise and honorable policy; the second is, that in doubtful cases,
particularly where the national councils may be warped by some strong
passion or momentary interest, the presumed or known opinion of the
impartial world may be the best guide that can be followed. What has not
America lost by her want of character with foreign nations; and how many
errors and follies would she not have avoided, if the justice and
propriety of her measures had, in every instance, been previously tried
by the light in which they would probably appear to the unbiased part of
mankind?
Yet however requisite a sense of national character may be, it is
evident that it can never be sufficiently possessed by a numerous and
changeable body. It can only be found in a number so small that a
sensible degree of the praise and blame of public measures may be the
portion of each individual; or in an assembly so durably invested with
public trust, that the pride and consequence of its members may be
sensibly incorporated with the reputation and prosperity of the
community. The half-yearly representatives of Rhode Island would
probably have been little affected in their deliberations on the
iniquitous measures of that State, by arguments drawn from the light in
which such measures would be viewed by foreign nations, or even by the
sister States; whilst it can scarcely be doubted that if the concurrence
of a select and stable body had been necessary, a regard to national
character alone would have prevented the calamities under which that
misguided people is now laboring.
I add, as a SIXTH defect the want, in some important cases, of a due
responsibility in the government to the people, arising from that
frequency of elections which in other cases produces this
responsibility. This remark will, perhaps, appear not only new, but
paradoxical. It must nevertheless be acknowledged, when explained, to be
as undeniable as it is important.
Responsibility, in order to be reasonable, must be limited to objects
within the power of the responsible party, and in order to be effectual,
must relate to operations of that power, of which a ready and proper
judgment can be formed by the constituents. The objects of government
may be divided into two general classes: the one depending on measures
which have singly an immediate and sensible operation; the other
depending on a succession of well-chosen and well-connected measures,
which have a gradual and perhaps unobserved operation. The importance of
the latter description to the collective and permanent welfare of every
country, needs no explanation. And yet it is evident that an assembly
elected for so short a term as to be unable to provide more than one or
two links in a chain of measures, on which the general welfare may
essentially depend, ought not to be answerable for the final result, any
more than a steward or tenant, engaged for one year, could be justly
made to answer for places or improvements which could not be
accomplished in less than half a dozen years. Nor is it possible for the
people to estimate the SHARE of influence which their annual assemblies
may respectively have on events resulting from the mixed transactions of
several years. It is sufficiently difficult to preserve a personal
responsibility in the members of a NUMEROUS body, for such acts of the
body as have an immediate, detached, and palpable operation on its
constituents.
The proper remedy for this defect must be an additional body in the
legislative department, which, having sufficient permanency to provide
for such objects as require a continued attention, and a train of
measures, may be justly and effectually answerable for the attainment of
those objects.
Thus far I have considered the circumstances which point out the
necessity of a well-constructed Senate only as they relate to the
representatives of the people. To a people as little blinded by
prejudice or corrupted by flattery as those whom I address, I shall not
scruple to add, that such an institution may be sometimes necessary as a
defense to the people against their own temporary errors and delusions.
As the cool and deliberate sense of the community ought, in all
governments, and actually will, in all free governments, ultimately
prevail over the views of its rulers; so there are particular moments in
public affairs when the people, stimulated by some irregular passion, or
some illicit advantage, or misled by the artful misrepresentations of
interested men, may call for measures which they themselves will
afterwards be the most ready to lament and condemn. In these critical
moments, how salutary will be the interference of some temperate and
respectable body of citizens, in order to check the misguided career,
and to suspend the blow meditated by the people against themselves,
until reason, justice, and truth can regain their authority over the
public mind? What bitter anguish would not the people of Athens have
often escaped if their government had contained so provident a safeguard
against the tyranny of their own passions? Popular liberty might then
have escaped the indelible reproach of decreeing to the same citizens
the hemlock on one day and statues on the next.
It may be suggested, that a people spread over an extensive region
cannot, like the crowded inhabitants of a small district, be subject to
the infection of violent passions, or to the danger of combining in
pursuit of unjust measures. I am far from denying that this is a
distinction of peculiar importance. I have, on the contrary, endeavored
in a former paper to show, that it is one of the principal
recommendations of a confederated republic. At the same time, this
advantage ought not to be considered as superseding the use of auxiliary
precautions. It may even be remarked, that the same extended situation,
which will exempt the people of America from some of the dangers
incident to lesser republics, will expose them to the inconveniency of
remaining for a longer time under the influence of those
misrepresentations which the combined industry of interested men may
succeed in distributing among them.
It adds no small weight to all these considerations, to recollect that
history informs us of no long-lived republic which had not a senate.
Sparta, Rome, and Carthage are, in fact, the only states to whom that
character can be applied. In each of the two first there was a senate
for life. The constitution of the senate in the last is less known.
Circumstantial evidence makes it probable that it was not different in
this particular from the two others. It is at least certain, that it had
some quality or other which rendered it an anchor against popular
fluctuations; and that a smaller council, drawn out of the senate, was
appointed not only for life, but filled up vacancies itself. These
examples, though as unfit for the imitation, as they are repugnant to
the genius, of America, are, notwithstanding, when compared with the
fugitive and turbulent existence of other ancient republics, very
instructive proofs of the necessity of some institution that will blend
stability with liberty. I am not unaware of the circumstances which
distinguish the American from other popular governments, as well ancient
as modern; and which render extreme circumspection necessary, in
reasoning from the one case to the other. But after allowing due weight
to this consideration, it may still be maintained, that there are many
points of similitude which render these examples not unworthy of our
attention. Many of the defects, as we have seen, which can only be
supplied by a senatorial institution, are common to a numerous assembly
frequently elected by the people, and to the people themselves. There
are others peculiar to the former, which require the control of such an
institution. The people can never wilfully betray their own interests;
but they may possibly be betrayed by the representatives of the people;
and the danger will be evidently greater where the whole legislative
trust is lodged in the hands of one body of men, than where the
concurrence of separate and dissimilar bodies is required in every
public act.
The difference most relied on, between the American and other republics,
consists in the principle of representation; which is the pivot on which
the former move, and which is supposed to have been unknown to the
latter, or at least to the ancient part of them. The use which has been
made of this difference, in reasonings contained in former papers, will
have shown that I am disposed neither to deny its existence nor to
undervalue its importance. I feel the less restraint, therefore, in
observing, that the position concerning the ignorance of the ancient
governments on the subject of representation, is by no means precisely
true in the latitude commonly given to it. Without entering into a
disquisition which here would be misplaced, I will refer to a few known
facts, in support of what I advance.
In the most pure democracies of Greece, many of the executive functions
were performed, not by the people themselves, but by officers elected by
the people, and REPRESENTING the people in their EXECUTIVE capacity.
Prior to the reform of Solon, Athens was governed by nine Archons,
annually ELECTED BY THE PEOPLE AT LARGE. The degree of power delegated
to them seems to be left in great obscurity. Subsequent to that period,
we find an assembly, first of four, and afterwards of six hundred
members, annually ELECTED BY THE PEOPLE; and PARTIALLY representing them
in their LEGISLATIVE capacity, since they were not only associated with
the people in the function of making laws, but had the exclusive right
of originating legislative propositions to the people. The senate of
Carthage, also, whatever might be its power, or the duration of its
appointment, appears to have been ELECTIVE by the suffrages of the
people. Similar instances might be traced in most, if not all the
popular governments of antiquity.
Lastly, in Sparta we meet with the Ephori, and in Rome with the
Tribunes; two bodies, small indeed in numbers, but annually ELECTED BY
THE WHOLE BODY OF THE PEOPLE, and considered as the REPRESENTATIVES of
the people, almost in their PLENIPOTENTIARY capacity. The Cosmi of Crete
were also annually ELECTED BY THE PEOPLE, and have been considered by
some authors as an institution analogous to those of Sparta and Rome,
with this difference only, that in the election of that representative
body the right of suffrage was communicated to a part only of the
people.
From these facts, to which many others might be added, it is clear that
the principle of representation was neither unknown to the ancients nor
wholly overlooked in their political constitutions. The true distinction
between these and the American governments, lies IN THE TOTAL EXCLUSION
OF THE PEOPLE, IN THEIR COLLECTIVE CAPACITY, from any share in the
LATTER, and not in the TOTAL EXCLUSION OF THE REPRESENTATIVES OF THE
PEOPLE from the administration of the FORMER. The distinction, however,
thus qualified, must be admitted to leave a most advantageous
superiority in favor of the United States. But to insure to this
advantage its full effect, we must be careful not to separate it from
the other advantage, of an extensive territory. For it cannot be
believed, that any form of representative government could have
succeeded within the narrow limits occupied by the democracies of
Greece.
In answer to all these arguments, suggested by reason, illustrated by
examples, and enforced by our own experience, the jealous adversary of
the Constitution will probably content himself with repeating, that a
senate appointed not immediately by the people, and for the term of six
years, must gradually acquire a dangerous pre-eminence in the
government, and finally transform it into a tyrannical aristocracy.
To this general answer, the general reply ought to be sufficient, that
liberty may be endangered by the abuses of liberty as well as by the
abuses of power; that there are numerous instances of the former as well
as of the latter; and that the former, rather than the latter, are
apparently most to be apprehended by the United States. But a more
particular reply may be given.
Before such a revolution can be effected, the Senate, it is to be
observed, must in the first place corrupt itself; must next corrupt the
State legislatures; must then corrupt the House of Representatives; and
must finally corrupt the people at large. It is evident that the Senate
must be first corrupted before it can attempt an establishment of
tyranny. Without corrupting the State legislatures, it cannot prosecute
the attempt, because the periodical change of members would otherwise
regenerate the whole body. Without exerting the means of corruption with
equal success on the House of Representatives, the opposition of that
coequal branch of the government would inevitably defeat the attempt;
and without corrupting the people themselves, a succession of new
representatives would speedily restore all things to their pristine
order. Is there any man who can seriously persuade himself that the
proposed Senate can, by any possible means within the compass of human
address, arrive at the object of a lawless ambition, through all these
obstructions?
If reason condemns the suspicion, the same sentence is pronounced by
experience. The constitution of Maryland furnishes the most apposite
example. The Senate of that State is elected, as the federal Senate will
be, indirectly by the people, and for a term less by one year only than
the federal Senate. It is distinguished, also, by the remarkable
prerogative of filling up its own vacancies within the term of its
appointment, and, at the same time, is not under the control of any such
rotation as is provided for the federal Senate. There are some other
lesser distinctions, which would expose the former to colorable
objections, that do not lie against the latter. If the federal Senate,
therefore, really contained the danger which has been so loudly
proclaimed, some symptoms at least of a like danger ought by this time
to have been betrayed by the Senate of Maryland, but no such symptoms
have appeared. On the contrary, the jealousies at first entertained by
men of the same description with those who view with terror the
correspondent part of the federal Constitution, have been gradually
extinguished by the progress of the experiment; and the Maryland
constitution is daily deriving, from the salutary operation of this part
of it, a reputation in which it will probably not be rivalled by that of
any State in the Union.
But if anything could silence the jealousies on this subject, it ought
to be the British example. The Senate there instead of being elected for
a term of six years, and of being unconfined to particular families or
fortunes, is an hereditary assembly of opulent nobles. The House of
Representatives, instead of being elected for two years, and by the
whole body of the people, is elected for seven years, and, in very great
proportion, by a very small proportion of the people. Here,
unquestionably, ought to be seen in full display the aristocratic
usurpations and tyranny which are at some future period to be
exemplified in the United States. Unfortunately, however, for the
anti-federal argument, the British history informs us that this
hereditary assembly has not been able to defend itself against the
continual encroachments of the House of Representatives; and that it no
sooner lost the support of the monarch, than it was actually crushed by
the weight of the popular branch.
As far as antiquity can instruct us on this subject, its examples
support the reasoning which we have employed. In Sparta, the Ephori, the
annual representatives of the people, were found an overmatch for the
senate for life, continually gained on its authority and finally drew
all power into their own hands. The Tribunes of Rome, who were the
representatives of the people, prevailed, it is well known, in almost
every contest with the senate for life, and in the end gained the most
complete triumph over it. The fact is the more remarkable, as unanimity
was required in every act of the Tribunes, even after their number was
augmented to ten. It proves the irresistible force possessed by that
branch of a free government, which has the people on its side. To these
examples might be added that of Carthage, whose senate, according to the
testimony of Polybius, instead of drawing all power into its vortex,
had, at the commencement of the second Punic War, lost almost the whole
of its original portion.
Besides the conclusive evidence resulting from this assemblage of facts,
that the federal Senate will never be able to transform itself, by
gradual usurpations, into an independent and aristocratic body, we are
warranted in believing, that if such a revolution should ever happen
from causes which the foresight of man cannot guard against, the House
of Representatives, with the people on their side, will at all times be
able to bring back the Constitution to its primitive form and
principles. Against the force of the immediate representatives of the
people, nothing will be able to maintain even the constitutional
authority of the Senate, but such a display of enlightened policy, and
attachment to the public good, as will divide with that branch of the
legislature the affections and support of the entire body of the people
themselves.
PUBLIUS
____
FEDERALIST No. 64
The Powers of the Senate
From the Independent Journal.
Wednesday, March 5, 1788.
JAY
To the People of the State of New York:
IT IS a just and not a new observation, that enemies to particular
persons, and opponents to particular measures, seldom confine their
censures to such things only in either as are worthy of blame. Unless on
this principle, it is difficult to explain the motives of their conduct,
who condemn the proposed Constitution in the aggregate, and treat with
severity some of the most unexceptionable articles in it.
The second section gives power to the President, "BY AND WITH THE ADVICE
AND CONSENT OF THE SENATE, TO MAKE TREATIES, PROVIDED TWO THIRDS OF THE
SENATORS PRESENT CONCUR."
The power of making treaties is an important one, especially as it
relates to war, peace, and commerce; and it should not be delegated but
in such a mode, and with such precautions, as will afford the highest
security that it will be exercised by men the best qualified for the
purpose, and in the manner most conducive to the public good. The
convention appears to have been attentive to both these points: they
have directed the President to be chosen by select bodies of electors,
to be deputed by the people for that express purpose; and they have
committed the appointment of senators to the State legislatures. This
mode has, in such cases, vastly the advantage of elections by the people
in their collective capacity, where the activity of party zeal, taking
the advantage of the supineness, the ignorance, and the hopes and fears
of the unwary and interested, often places men in office by the votes of
a small proportion of the electors.
As the select assemblies for choosing the President, as well as the
State legislatures who appoint the senators, will in general be composed
of the most enlightened and respectable citizens, there is reason to
presume that their attention and their votes will be directed to those
men only who have become the most distinguished by their abilities and
virtue, and in whom the people perceive just grounds for confidence. The
Constitution manifests very particular attention to this object. By
excluding men under thirty-five from the first office, and those under
thirty from the second, it confines the electors to men of whom the
people have had time to form a judgment, and with respect to whom they
will not be liable to be deceived by those brilliant appearances of
genius and patriotism, which, like transient meteors, sometimes mislead
as well as dazzle. If the observation be well founded, that wise kings
will always be served by able ministers, it is fair to argue, that as an
assembly of select electors possess, in a greater degree than kings, the
means of extensive and accurate information relative to men and
characters, so will their appointments bear at least equal marks of
discretion and discernment. The inference which naturally results from
these considerations is this, that the President and senators so chosen
will always be of the number of those who best understand our national
interests, whether considered in relation to the several States or to
foreign nations, who are best able to promote those interests, and whose
reputation for integrity inspires and merits confidence. With such men
the power of making treaties may be safely lodged.
Although the absolute necessity of system, in the conduct of any
business, is universally known and acknowledged, yet the high importance
of it in national affairs has not yet become sufficiently impressed on
the public mind. They who wish to commit the power under consideration
to a popular assembly, composed of members constantly coming and going
in quick succession, seem not to recollect that such a body must
necessarily be inadequate to the attainment of those great objects,
which require to be steadily contemplated in all their relations and
circumstances, and which can only be approached and achieved by measures
which not only talents, but also exact information, and often much time,
are necessary to concert and to execute. It was wise, therefore, in the
convention to provide, not only that the power of making treaties should
be committed to able and honest men, but also that they should continue
in place a sufficient time to become perfectly acquainted with our
national concerns, and to form and introduce a a system for the
management of them. The duration prescribed is such as will give them an
opportunity of greatly extending their political information, and of
rendering their accumulating experience more and more beneficial to
their country. Nor has the convention discovered less prudence in
providing for the frequent elections of senators in such a way as to
obviate the inconvenience of periodically transferring those great
affairs entirely to new men; for by leaving a considerable residue of
the old ones in place, uniformity and order, as well as a constant
succession of official information will be preserved.
There are a few who will not admit that the affairs of trade and
navigation should be regulated by a system cautiously formed and
steadily pursued; and that both our treaties and our laws should
correspond with and be made to promote it. It is of much consequence
that this correspondence and conformity be carefully maintained; and
they who assent to the truth of this position will see and confess that
it is well provided for by making concurrence of the Senate necessary
both to treaties and to laws.
It seldom happens in the negotiation of treaties, of whatever nature,
but that perfect SECRECY and immediate DESPATCH are sometimes requisite.
These are cases where the most useful intelligence may be obtained, if
the persons possessing it can be relieved from apprehensions of
discovery. Those apprehensions will operate on those persons whether
they are actuated by mercenary or friendly motives; and there doubtless
are many of both descriptions, who would rely on the secrecy of the
President, but who would not confide in that of the Senate, and still
less in that of a large popular Assembly. The convention have done well,
therefore, in so disposing of the power of making treaties, that
although the President must, in forming them, act by the advice and
consent of the Senate, yet he will be able to manage the business of
intelligence in such a manner as prudence may suggest.
They who have turned their attention to the affairs of men, must have
perceived that there are tides in them; tides very irregular in their
duration, strength, and direction, and seldom found to run twice exactly
in the same manner or measure. To discern and to profit by these tides
in national affairs is the business of those who preside over them; and
they who have had much experience on this head inform us, that there
frequently are occasions when days, nay, even when hours, are precious.
The loss of a battle, the death of a prince, the removal of a minister,
or other circumstances intervening to change the present posture and
aspect of affairs, may turn the most favorable tide into a course
opposite to our wishes. As in the field, so in the cabinet, there are
moments to be seized as they pass, and they who preside in either should
be left in capacity to improve them. So often and so essentially have we
heretofore suffered from the want of secrecy and despatch, that the
Constitution would have been inexcusably defective, if no attention had
been paid to those objects. Those matters which in negotiations usually
require the most secrecy and the most despatch, are those preparatory
and auxiliary measures which are not otherwise important in a national
view, than as they tend to facilitate the attainment of the objects of
the negotiation. For these, the President will find no difficulty to
provide; and should any circumstance occur which requires the advice and
consent of the Senate, he may at any time convene them. Thus we see that
the Constitution provides that our negotiations for treaties shall have
every advantage which can be derived from talents, information,
integrity, and deliberate investigations, on the one hand, and from
secrecy and despatch on the other.
But to this plan, as to most others that have ever appeared, objections
are contrived and urged.
Some are displeased with it, not on account of any errors or defects in
it, but because, as the treaties, when made, are to have the force of
laws, they should be made only by men invested with legislative
authority. These gentlemen seem not to consider that the judgments of
our courts, and the commissions constitutionally given by our governor,
are as valid and as binding on all persons whom they concern, as the
laws passed by our legislature. All constitutional acts of power,
whether in the executive or in the judicial department, have as much
legal validity and obligation as if they proceeded from the legislature;
and therefore, whatever name be given to the power of making treaties,
or however obligatory they may be when made, certain it is, that the
people may, with much propriety, commit the power to a distinct body
from the legislature, the executive, or the judicial. It surely does not
follow, that because they have given the power of making laws to the
legislature, that therefore they should likewise give them the power to
do every other act of sovereignty by which the citizens are to be bound
and affected.
Others, though content that treaties should be made in the mode
proposed, are averse to their being the SUPREME laws of the land. They
insist, and profess to believe, that treaties like acts of assembly,
should be repealable at pleasure. This idea seems to be new and peculiar
to this country, but new errors, as well as new truths, often appear.
These gentlemen would do well to reflect that a treaty is only another
name for a bargain, and that it would be impossible to find a nation who
would make any bargain with us, which should be binding on them
ABSOLUTELY, but on us only so long and so far as we may think proper to
be bound by it. They who make laws may, without doubt, amend or repeal
them; and it will not be disputed that they who make treaties may alter
or cancel them; but still let us not forget that treaties are made, not
by only one of the contracting parties, but by both; and consequently,
that as the consent of both was essential to their formation at first,
so must it ever afterwards be to alter or cancel them. The proposed
Constitution, therefore, has not in the least extended the obligation of
treaties. They are just as binding, and just as far beyond the lawful
reach of legislative acts now, as they will be at any future period, or
under any form of government.
However useful jealousy may be in republics, yet when like bile in the
natural, it abounds too much in the body politic, the eyes of both
become very liable to be deceived by the delusive appearances which that
malady casts on surrounding objects. From this cause, probably, proceed
the fears and apprehensions of some, that the President and Senate may
make treaties without an equal eye to the interests of all the States.
Others suspect that two thirds will oppress the remaining third, and ask
whether those gentlemen are made sufficiently responsible for their
conduct; whether, if they act corruptly, they can be punished; and if
they make disadvantageous treaties, how are we to get rid of those
treaties?
As all the States are equally represented in the Senate, and by men the
most able and the most willing to promote the interests of their
constituents, they will all have an equal degree of influence in that
body, especially while they continue to be careful in appointing proper
persons, and to insist on their punctual attendance. In proportion as
the United States assume a national form and a national character, so
will the good of the whole be more and more an object of attention, and
the government must be a weak one indeed, if it should forget that the
good of the whole can only be promoted by advancing the good of each of
the parts or members which compose the whole. It will not be in the
power of the President and Senate to make any treaties by which they and
their families and estates will not be equally bound and affected with
the rest of the community; and, having no private interests distinct
from that of the nation, they will be under no temptations to neglect
the latter.
As to corruption, the case is not supposable. He must either have been
very unfortunate in his intercourse with the world, or possess a heart
very susceptible of such impressions, who can think it probable that the
President and two thirds of the Senate will ever be capable of such
unworthy conduct. The idea is too gross and too invidious to be
entertained. But in such a case, if it should ever happen, the treaty so
obtained from us would, like all other fraudulent contracts, be null and
void by the law of nations.
With respect to their responsibility, it is difficult to conceive how it
could be increased. Every consideration that can influence the human
mind, such as honor, oaths, reputations, conscience, the love of
country, and family affections and attachments, afford security for
their fidelity. In short, as the Constitution has taken the utmost care
that they shall be men of talents and integrity, we have reason to be
persuaded that the treaties they make will be as advantageous as, all
circumstances considered, could be made; and so far as the fear of
punishment and disgrace can operate, that motive to good behavior is
amply afforded by the article on the subject of impeachments.
PUBLIUS
____
FEDERALIST No. 65
The Powers of the Senate Continued
From the New York Packet.
Friday, March 7, 1788.
HAMILTON
To the People of the State of New York:
THE remaining powers which the plan of the convention allots to the
Senate, in a distinct capacity, are comprised in their participation
with the executive in the appointment to offices, and in their judicial
character as a court for the trial of impeachments. As in the business
of appointments the executive will be the principal agent, the
provisions relating to it will most properly be discussed in the
examination of that department. We will, therefore, conclude this head
with a view of the judicial character of the Senate.
A well-constituted court for the trial of impeachments is an object not
more to be desired than difficult to be obtained in a government wholly
elective. The subjects of its jurisdiction are those offenses which
proceed from the misconduct of public men, or, in other words, from the
abuse or violation of some public trust. They are of a nature which may
with peculiar propriety be denominated POLITICAL, as they relate chiefly
to injuries done immediately to the society itself. The prosecution of
them, for this reason, will seldom fail to agitate the passions of the
whole community, and to divide it into parties more or less friendly or
inimical to the accused. In many cases it will connect itself with the
pre-existing factions, and will enlist all their animosities,
partialities, influence, and interest on one side or on the other; and
in such cases there will always be the greatest danger that the decision
will be regulated more by the comparative strength of parties, than by
the real demonstrations of innocence or guilt.
The delicacy and magnitude of a trust which so deeply concerns the
political reputation and existence of every man engaged in the
administration of public affairs, speak for themselves. The difficulty
of placing it rightly, in a government resting entirely on the basis of
periodical elections, will as readily be perceived, when it is
considered that the most conspicuous characters in it will, from that
circumstance, be too often the leaders or the tools of the most cunning
or the most numerous faction, and on this account, can hardly be
expected to possess the requisite neutrality towards those whose conduct
may be the subject of scrutiny.
The convention, it appears, thought the Senate the most fit depositary
of this important trust. Those who can best discern the intrinsic
difficulty of the thing, will be least hasty in condemning that opinion,
and will be most inclined to allow due weight to the arguments which may
be supposed to have produced it.
What, it may be asked, is the true spirit of the institution itself? Is
it not designed as a method of NATIONAL INQUEST into the conduct of
public men? If this be the design of it, who can so properly be the
inquisitors for the nation as the representatives of the nation
themselves? It is not disputed that the power of originating the
inquiry, or, in other words, of preferring the impeachment, ought to be
lodged in the hands of one branch of the legislative body. Will not the
reasons which indicate the propriety of this arrangement strongly plead
for an admission of the other branch of that body to a share of the
inquiry? The model from which the idea of this institution has been
borrowed, pointed out that course to the convention. In Great Britain it
is the province of the House of Commons to prefer the impeachment, and
of the House of Lords to decide upon it. Several of the State
constitutions have followed the example. As well the latter, as the
former, seem to have regarded the practice of impeachments as a bridle
in the hands of the legislative body upon the executive servants of the
government. Is not this the true light in which it ought to be regarded?
Where else than in the Senate could have been found a tribunal
sufficiently dignified, or sufficiently independent? What other body
would be likely to feel CONFIDENCE ENOUGH IN ITS OWN SITUATION, to
preserve, unawed and uninfluenced, the necessary impartiality between an
INDIVIDUAL accused, and the REPRESENTATIVES OF THE PEOPLE, HIS ACCUSERS?
Could the Supreme Court have been relied upon as answering this
description? It is much to be doubted, whether the members of that
tribunal would at all times be endowed with so eminent a portion of
fortitude, as would be called for in the execution of so difficult a
task; and it is still more to be doubted, whether they would possess the
degree of credit and authority, which might, on certain occasions, be
indispensable towards reconciling the people to a decision that should
happen to clash with an accusation brought by their immediate
representatives. A deficiency in the first, would be fatal to the
accused; in the last, dangerous to the public tranquillity. The hazard
in both these respects, could only be avoided, if at all, by rendering
that tribunal more numerous than would consist with a reasonable
attention to economy. The necessity of a numerous court for the trial of
impeachments, is equally dictated by the nature of the proceeding. This
can never be tied down by such strict rules, either in the delineation
of the offense by the prosecutors, or in the construction of it by the
judges, as in common cases serve to limit the discretion of courts in
favor of personal security. There will be no jury to stand between the
judges who are to pronounce the sentence of the law, and the party who
is to receive or suffer it. The awful discretion which a court of
impeachments must necessarily have, to doom to honor or to infamy the
most confidential and the most distinguished characters of the
community, forbids the commitment of the trust to a small number of
persons.
These considerations seem alone sufficient to authorize a conclusion,
that the Supreme Court would have been an improper substitute for the
Senate, as a court of impeachments. There remains a further
consideration, which will not a little strengthen this conclusion. It is
this: The punishment which may be the consequence of conviction upon
impeachment, is not to terminate the chastisement of the offender. After
having been sentenced to a prepetual ostracism from the esteem and
confidence, and honors and emoluments of his country, he will still be
liable to prosecution and punishment in the ordinary course of law.
Would it be proper that the persons who had disposed of his fame, and
his most valuable rights as a citizen in one trial, should, in another
trial, for the same offense, be also the disposers of his life and his
fortune? Would there not be the greatest reason to apprehend, that
error, in the first sentence, would be the parent of error in the second
sentence? That the strong bias of one decision would be apt to overrule
the influence of any new lights which might be brought to vary the
complexion of another decision? Those who know anything of human nature,
will not hesitate to answer these questions in the affirmative; and will
be at no loss to perceive, that by making the same persons judges in
both cases, those who might happen to be the objects of prosecution
would, in a great measure, be deprived of the double security intended
them by a double trial. The loss of life and estate would often be
virtually included in a sentence which, in its terms, imported nothing
more than dismission from a present, and disqualification for a future,
office. It may be said, that the intervention of a jury, in the second
instance, would obviate the danger. But juries are frequently influenced
by the opinions of judges. They are sometimes induced to find special
verdicts, which refer the main question to the decision of the court.
Who would be willing to stake his life and his estate upon the verdict
of a jury acting under the auspices of judges who had predetermined his
guilt?
Would it have been an improvement of the plan, to have united the
Supreme Court with the Senate, in the formation of the court of
impeachments? This union would certainly have been attended with several
advantages; but would they not have been overbalanced by the signal
disadvantage, already stated, arising from the agency of the same judges
in the double prosecution to which the offender would be liable? To a
certain extent, the benefits of that union will be obtained from making
the chief justice of the Supreme Court the president of the court of
impeachments, as is proposed to be done in the plan of the convention;
while the inconveniences of an entire incorporation of the former into
the latter will be substantially avoided. This was perhaps the prudent
mean. I forbear to remark upon the additional pretext for clamor against
the judiciary, which so considerable an augmentation of its authority
would have afforded.
Would it have been desirable to have composed the court for the trial of
impeachments, of persons wholly distinct from the other departments of
the government? There are weighty arguments, as well against, as in
favor of, such a plan. To some minds it will not appear a trivial
objection, that it could tend to increase the complexity of the
political machine, and to add a new spring to the government, the
utility of which would at best be questionable. But an objection which
will not be thought by any unworthy of attention, is this: a court
formed upon such a plan, would either be attended with a heavy expense,
or might in practice be subject to a variety of casualties and
inconveniences. It must either consist of permanent officers, stationary
at the seat of government, and of course entitled to fixed and regular
stipends, or of certain officers of the State governments to be called
upon whenever an impeachment was actually depending. It will not be easy
to imagine any third mode materially different, which could rationally
be proposed. As the court, for reasons already given, ought to be
numerous, the first scheme will be reprobated by every man who can
compare the extent of the public wants with the means of supplying them.
The second will be espoused with caution by those who will seriously
consider the difficulty of collecting men dispersed over the whole
Union; the injury to the innocent, from the procrastinated determination
of the charges which might be brought against them; the advantage to the
guilty, from the opportunities which delay would afford to intrigue and
corruption; and in some cases the detriment to the State, from the
prolonged inaction of men whose firm and faithful execution of their
duty might have exposed them to the persecution of an intemperate or
designing majority in the House of Representatives. Though this latter
supposition may seem harsh, and might not be likely often to be
verified, yet it ought not to be forgotten that the demon of faction
will, at certain seasons, extend his sceptre over all numerous bodies of
men.
But though one or the other of the substitutes which have been examined,
or some other that might be devised, should be thought preferable to the
plan in this respect, reported by the convention, it will not follow
that the Constitution ought for this reason to be rejected. If mankind
were to resolve to agree in no institution of government, until every
part of it had been adjusted to the most exact standard of perfection,
society would soon become a general scene of anarchy, and the world a
desert. Where is the standard of perfection to be found? Who will
undertake to unite the discordant opinions of a whole commuity, in the
same judgment of it; and to prevail upon one conceited projector to
renounce his INFALLIBLE criterion for the FALLIBLE criterion of his more
CONCEITED NEIGHBOR? To answer the purpose of the adversaries of the
Constitution, they ought to prove, not merely that particular provisions
in it are not the best which might have been imagined, but that the plan
upon the whole is bad and pernicious.
PUBLIUS
____
FEDERALIST No. 66
Objections to the Power of the Senate To Set as a Court for
Impeachments Further Considered
From the Independent Journal.
Saturday, March 8, 1788.
HAMILTON
To the People of the State of New York:
A REVIEW of the principal objections that have appeared against the
proposed court for the trial of impeachments, will not improbably
eradicate the remains of any unfavorable impressions which may still
exist in regard to this matter.
The FIRST of these objections is, that the provision in question
confounds legislative and judiciary authorities in the same body, in
violation of that important and wellestablished maxim which requires a
separation between the different departments of power. The true meaning
of this maxim has been discussed and ascertained in another place, and
has been shown to be entirely compatible with a partial intermixture of
those departments for special purposes, preserving them, in the main,
distinct and unconnected. This partial intermixture is even, in some
cases, not only proper but necessary to the mutual defense of the
several members of the government against each other. An absolute or
qualified negative in the executive upon the acts of the legislative
body, is admitted, by the ablest adepts in political science, to be an
indispensable barrier against the encroachments of the latter upon the
former. And it may, perhaps, with no less reason be contended, that the
powers relating to impeachments are, as before intimated, an essential
check in the hands of that body upon the encroachments of the executive.
The division of them between the two branches of the legislature,
assigning to one the right of accusing, to the other the right of
judging, avoids the inconvenience of making the same persons both
accusers and judges; and guards against the danger of persecution, from
the prevalency of a factious spirit in either of those branches. As the
concurrence of two thirds of the Senate will be requisite to a
condemnation, the security to innocence, from this additional
circumstance, will be as complete as itself can desire.
It is curious to observe, with what vehemence this part of the plan is
assailed, on the principle here taken notice of, by men who profess to
admire, without exception, the constitution of this State; while that
constitution makes the Senate, together with the chancellor and judges
of the Supreme Court, not only a court of impeachments, but the highest
judicatory in the State, in all causes, civil and criminal. The
proportion, in point of numbers, of the chancellor and judges to the
senators, is so inconsiderable, that the judiciary authority of New
York, in the last resort, may, with truth, be said to reside in its
Senate. If the plan of the convention be, in this respect, chargeable
with a departure from the celebrated maxim which has been so often
mentioned, and seems to be so little understood, how much more culpable
must be the constitution of New York?[1]
A SECOND objection to the Senate, as a court of impeachments, is, that
it contributes to an undue accumulation of power in that body, tending
to give to the government a countenance too aristocratic. The Senate, it
is observed, is to have concurrent authority with the Executive in the
formation of treaties and in the appointment to offices: if, say the
objectors, to these prerogatives is added that of deciding in all cases
of impeachment, it will give a decided predominancy to senatorial
influence. To an objection so little precise in itself, it is not easy
to find a very precise answer. Where is the measure or criterion to
which we can appeal, for determining what will give the Senate too much,
too little, or barely the proper degree of influence? Will it not be
more safe, as well as more simple, to dismiss such vague and uncertain
calculations, to examine each power by itself, and to decide, on general
principles, where it may be deposited with most advantage and least
inconvenience?
If we take this course, it will lead to a more intelligible, if not to a
more certain result. The disposition of the power of making treaties,
which has obtained in the plan of the convention, will, then, if I
mistake not, appear to be fully justified by the considerations stated
in a former number, and by others which will occur under the next head
of our inquiries. The expediency of the junction of the Senate with the
Executive, in the power of appointing to offices, will, I trust, be
placed in a light not less satisfactory, in the disquisitions under the
same head. And I flatter myself the observations in my last paper must
have gone no inconsiderable way towards proving that it was not easy, if
practicable, to find a more fit receptacle for the power of determining
impeachments, than that which has been chosen. If this be truly the
case, the hypothetical dread of the too great weight of the Senate ought
to be discarded from our reasonings.
But this hypothesis, such as it is, has already been refuted in the
remarks applied to the duration in office prescribed for the senators.
It was by them shown, as well on the credit of historical examples, as
from the reason of the thing, that the most POPULAR branch of every
government, partaking of the republican genius, by being generally the
favorite of the people, will be as generally a full match, if not an
overmatch, for every other member of the Government.
But independent of this most active and operative principle, to secure
the equilibrium of the national House of Representatives, the plan of
the convention has provided in its favor several important counterpoises
to the additional authorities to be conferred upon the Senate. The
exclusive privilege of originating money bills will belong to the House
of Representatives. The same house will possess the sole right of
instituting impeachments: is not this a complete counterbalance to that
of determining them? The same house will be the umpire in all elections
of the President, which do not unite the suffrages of a majority of the
whole number of electors; a case which it cannot be doubted will
sometimes, if not frequently, happen. The constant possibility of the
thing must be a fruitful source of influence to that body. The more it
is contemplated, the more important will appear this ultimate though
contingent power, of deciding the competitions of the most illustrious
citizens of the Union, for the first office in it. It would not perhaps
be rash to predict, that as a mean of influence it will be found to
outweigh all the peculiar attributes of the Senate.
A THIRD objection to the Senate as a court of impeachments, is drawn
from the agency they are to have in the appointments to office. It is
imagined that they would be too indulgent judges of the conduct of men,
in whose official creation they had participated. The principle of this
objection would condemn a practice, which is to be seen in all the State
governments, if not in all the governments with which we are acquainted:
I mean that of rendering those who hold offices during pleasure,
dependent on the pleasure of those who appoint them. With equal
plausibility might it be alleged in this case, that the favoritism of
the latter would always be an asylum for the misbehavior of the former.
But that practice, in contradiction to this principle, proceeds upon the
presumption, that the responsibility of those who appoint, for the
fitness and competency of the persons on whom they bestow their choice,
and the interest they will have in the respectable and prosperous
administration of affairs, will inspire a sufficient disposition to
dismiss from a share in it all such who, by their conduct, shall have
proved themselves unworthy of the confidence reposed in them. Though
facts may not always correspond with this presumption, yet if it be, in
the main, just, it must destroy the supposition that the Senate, who
will merely sanction the choice of the Executive, should feel a bias,
towards the objects of that choice, strong enough to blind them to the
evidences of guilt so extraordinary, as to have induced the
representatives of the nation to become its accusers.
If any further arguments were necessary to evince the improbability of
such a bias, it might be found in the nature of the agency of the Senate
in the business of appointments. It will be the office of the President
to NOMINATE, and, with the advice and consent of the Senate, to APPOINT.
There will, of course, be no exertion of CHOICE on the part of the
Senate. They may defeat one choice of the Executive, and oblige him to
make another; but they cannot themselves CHOOSE -- they can only ratify
or reject the choice of the President. They might even entertain a
preference to some other person, at the very moment they were assenting
to the one proposed, because there might be no positive ground of
opposition to him; and they could not be sure, if they withheld their
assent, that the subsequent nomination would fall upon their own
favorite, or upon any other person in their estimation more meritorious
than the one rejected. Thus it could hardly happen, that the majority of
the Senate would feel any other complacency towards the object of an
appointment than such as the appearances of merit might inspire, and the
proofs of the want of it destroy.
A FOURTH objection to the Senate in the capacity of a court of
impeachments, is derived from its union with the Executive in the power
of making treaties. This, it has been said, would constitute the
senators their own judges, in every case of a corrupt or perfidious
execution of that trust. After having combined with the Executive in
betraying the interests of the nation in a ruinous treaty, what
prospect, it is asked, would there be of their being made to suffer the
punishment they would deserve, when they were themselves to decide upon
the accusation brought against them for the treachery of which they have
been guilty?
This objection has been circulated with more earnestness and with
greater show of reason than any other which has appeared against this
part of the plan; and yet I am deceived if it does not rest upon an
erroneous foundation.
The security essentially intended by the Constitution against corruption
and treachery in the formation of treaties, is to be sought for in the
numbers and characters of those who are to make them. The JOINT AGENCY
of the Chief Magistrate of the Union, and of two thirds of the members
of a body selected by the collective wisdom of the legislatures of the
several States, is designed to be the pledge for the fidelity of the
national councils in this particular. The convention might with
propriety have meditated the punishment of the Executive, for a
deviation from the instructions of the Senate, or a want of integrity in
the conduct of the negotiations committed to him; they might also have
had in view the punishment of a few leading individuals in the Senate,
who should have prostituted their influence in that body as the
mercenary instruments of foreign corruption: but they could not, with
more or with equal propriety, have contemplated the impeachment and
punishment of two thirds of the Senate, consenting to an improper
treaty, than of a majority of that or of the other branch of the
national legislature, consenting to a pernicious or unconstitutional
law -- a principle which, I believe, has never been admitted into any
government. How, in fact, could a majority in the House of
Representatives impeach themselves? Not better, it is evident, than two
thirds of the Senate might try themselves. And yet what reason is there,
that a majority of the House of Representatives, sacrificing the
interests of the society by an unjust and tyrannical act of legislation,
should escape with impunity, more than two thirds of the Senate,
sacrificing the same interests in an injurious treaty with a foreign
power? The truth is, that in all such cases it is essential to the
freedom and to the necessary independence of the deliberations of the
body, that the members of it should be exempt from punishment for acts
done in a collective capacity; and the security to the society must
depend on the care which is taken to confide the trust to proper hands,
to make it their interest to execute it with fidelity, and to make it as
difficult as possible for them to combine in any interest opposite to
that of the public good.
So far as might concern the misbehavior of the Executive in perverting
the instructions or contravening the views of the Senate, we need not be
apprehensive of the want of a disposition in that body to punish the
abuse of their confidence or to vindicate their own authority. We may
thus far count upon their pride, if not upon their virtue. And so far
even as might concern the corruption of leading members, by whose arts
and influence the majority may have been inveigled into measures odious
to the community, if the proofs of that corruption should be
satisfactory, the usual propensity of human nature will warrant us in
concluding that there would be commonly no defect of inclination in the
body to divert the public resentment from themselves by a ready
sacrifice of the authors of their mismanagement and disgrace.
PUBLIUS
1. In that of New Jersey, also, the final judiciary authority is in a
branch of the legislature. In New Hampshire, Massachusetts,
Pennsylvania, and South Carolina, one branch of the legislature is the
court for the trial of impeachments.
____
FEDERALIST No. 67
The Executive Department
From the New York Packet.
Tuesday, March 11, 1788.
HAMILTON
To the People of the State of New York:
THE constitution of the executive department of the proposed government,
claims next our attention.
There is hardly any part of the system which could have been attended
with greater difficulty in the arrangement of it than this; and there
is, perhaps, none which has been inveighed against with less candor or
criticised with less judgment.
Here the writers against the Constitution seem to have taken pains to
signalize their talent of misrepresentation. Calculating upon the
aversion of the people to monarchy, they have endeavored to enlist all
their jealousies and apprehensions in opposition to the intended
President of the United States; not merely as the embryo, but as the
full-grown progeny, of that detested parent. To establish the pretended
affinity, they have not scrupled to draw resources even from the regions
of fiction. The authorities of a magistrate, in few instances greater,
in some instances less, than those of a governor of New York, have been
magnified into more than royal prerogatives. He has been decorated with
attributes superior in dignity and splendor to those of a king of Great
Britain. He has been shown to us with the diadem sparkling on his brow
and the imperial purple flowing in his train. He has been seated on a
throne surrounded with minions and mistresses, giving audience to the
envoys of foreign potentates, in all the supercilious pomp of majesty.
The images of Asiatic despotism and voluptuousness have scarcely been
wanting to crown the exaggerated scene. We have been taught to tremble
at the terrific visages of murdering janizaries, and to blush at the
unveiled mysteries of a future seraglio.
Attempts so extravagant as these to disfigure or, it might rather be
said, to metamorphose the object, render it necessary to take an
accurate view of its real nature and form: in order as well to ascertain
its true aspect and genuine appearance, as to unmask the disingenuity
and expose the fallacy of the counterfeit resemblances which have been
so insidiously, as well as industriously, propagated.
In the execution of this task, there is no man who would not find it an
arduous effort either to behold with moderation, or to treat with
seriousness, the devices, not less weak than wicked, which have been
contrived to pervert the public opinion in relation to the subject. They
so far exceed the usual though unjustifiable licenses of party artifice,
that even in a disposition the most candid and tolerant, they must force
the sentiments which favor an indulgent construction of the conduct of
political adversaries to give place to a voluntary and unreserved
indignation. It is impossible not to bestow the imputation of deliberate
imposture and deception upon the gross pretense of a similitude between
a king of Great Britain and a magistrate of the character marked out for
that of the President of the United States. It is still more impossible
to withhold that imputation from the rash and barefaced expedients which
have been employed to give success to the attempted imposition.
In one instance, which I cite as a sample of the general spirit, the
temerity has proceeded so far as to ascribe to the President of the
United States a power which by the instrument reported is EXPRESSLY
allotted to the Executives of the individual States. I mean the power of
filling casual vacancies in the Senate.
This bold experiment upon the discernment of his countrymen has been
hazarded by a writer who (whatever may be his real merit) has had no
inconsiderable share in the applauses of his party[1]; and who, upon
this false and unfounded suggestion, has built a series of observations
equally false and unfounded. Let him now be confronted with the evidence
of the fact, and let him, if he be able, justify or extenuate the
shameful outrage he has offered to the dictates of truth and to the
rules of fair dealing.
The second clause of the second section of the second article empowers
the President of the United States "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 United States whose appointments are NOT in the Constitution
OTHERWISE PROVIDED FOR, and WHICH SHALL BE ESTABLISHED BY LAW."
Immediately after this clause follows another in these words: "The
President shall have power to fill up all VACANCIES that may happen
DURING THE RECESS OF THE SENATE, by granting commissions which shall
EXPIRE AT THE END OF THEIR NEXT SESSION." It is from this last provision
that the pretended power of the President to fill vacancies in the
Senate has been deduced. A slight attention to the connection of the
clauses, and to the obvious meaning of the terms, will satisfy us that
the deduction is not even colorable.
The first of these two clauses, it is clear, only provides a mode for
appointing such officers, "whose appointments are NOT OTHERWISE PROVIDED
FOR in the Constitution, and which SHALL BE ESTABLISHED BY LAW"; of
course it cannot extend to the appointments of senators, whose
appointments are OTHERWISE PROVIDED FOR in the Constitution[2], and who
are ESTABLISHED BY THE CONSTITUTION, and will not require a future
establishment by law. This position will hardly be contested.
The last of these two clauses, it is equally clear, cannot be understood
to comprehend the power of filling vacancies in the Senate, for the
following reasons: First. The relation in which that clause stands to
the other, which declares the general mode of appointing officers of the
United States, denotes it to be nothing more than a supplement to the
other, for the purpose of establishing an auxiliary method of
appointment, in cases to which the general method was inadequate. The
ordinary power of appointment is confined to the President and Senate
JOINTLY, and can therefore only be exercised during the session of the
Senate; but as it would have been improper to oblige this body to be
continually in session for the appointment of officers and as vacancies
might happen IN THEIR RECESS, which it might be necessary for the public
service to fill without delay, the succeeding clause is evidently
intended to authorize the President, SINGLY, to make temporary
appointments "during the recess of the Senate, by granting commissions
which shall expire at the end of their next session." Second. If this
clause is to be considered as supplementary to the one which precedes,
the VACANCIES of which it speaks must be construed to relate to the
"officers" described in the preceding one; and this, we have seen,
excludes from its description the members of the Senate. Third. The
time within which the power is to operate, "during the recess of the
Senate," and the duration of the appointments, "to the end of the next
session" of that body, conspire to elucidate the sense of the provision,
which, if it had been intended to comprehend senators, would naturally
have referred the temporary power of filling vacancies to the recess of
the State legislatures, who are to make the permanent appointments, and
not to the recess of the national Senate, who are to have no concern in
those appointments; and would have extended the duration in office of
the temporary senators to the next session of the legislature of the
State, in whose representation the vacancies had happened, instead of
making it to expire at the end of the ensuing session of the national
Senate. The circumstances of the body authorized to make the permanent
appointments would, of course, have governed the modification of a power
which related to the temporary appointments; and as the national Senate
is the body, whose situation is alone contemplated in the clause upon
which the suggestion under examination has been founded, the vacancies
to which it alludes can only be deemed to respect those officers in
whose appointment that body has a concurrent agency with the President.
But last, the first and second clauses of the third section of the
first article, not only obviate all possibility of doubt, but destroy
the pretext of misconception. The former provides, that "the Senate of
the United States shall be composed of two Senators from each State,
chosen BY THE LEGISLATURE THEREOF for six years"; and the latter
directs, that, "if vacancies in that body should happen by resignation
or otherwise, DURING THE RECESS OF THE LEGISLATURE OF ANY STATE, the
Executive THEREOF may make temporary appointments until the NEXT MEETING
OF THE LEGISLATURE, which shall then fill such vacancies." Here is an
express power given, in clear and unambiguous terms, to the State
Executives, to fill casual vacancies in the Senate, by temporary
appointments; which not only invalidates the supposition, that the
clause before considered could have been intended to confer that power
upon the President of the United States, but proves that this
supposition, destitute as it is even of the merit of plausibility, must
have originated in an intention to deceive the people, too palpable to
be obscured by sophistry, too atrocious to be palliated by hypocrisy.
I have taken the pains to select this instance of misrepresentation, and
to place it in a clear and strong light, as an unequivocal proof of the
unwarrantable arts which are practiced to prevent a fair and impartial
judgment of the real merits of the Constitution submitted to the
consideration of the people. Nor have I scrupled, in so flagrant a case,
to allow myself a severity of animadversion little congenial with the
general spirit of these papers. I hesitate not to submit it to the
decision of any candid and honest adversary of the proposed government,
whether language can furnish epithets of too much asperity, for so
shameless and so prostitute an attempt to impose on the citizens of
America.
PUBLIUS
1. See CATO, No. V.
2. Article I, section 3, clause 1.
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FEDERALIST No. 68
The Mode of Electing the President
From the Independent Journal.
Wednesday, March 12, 1788.
HAMILTON
To the People of the State of New York:
THE mode of appointment of the Chief Magistrate of the United States is
almost the only part of the system, of any consequence, which has
escaped without severe censure, or which has received the slightest mark
of approbation from its opponents. The most plausible of these, who has
appeared in print, has even deigned to admit that the election of the
President is pretty well guarded.[1] I venture somewhat further, and
hesitate not to affirm, that if the manner of it be not perfect, it is
at least excellent. It unites in an eminent degree all the advantages,
the union of which was to be wished for.[E1]
It was desirable that the sense of the people should operate in the
choice of the person to whom so important a trust was to be confided.
This end will be answered by committing the right of making it, not to
any preestablished body, but to men chosen by the people for the special
purpose, and at the particular conjuncture.
It was equally desirable, that the immediate election should be made by
men most capable of analyzing the qualities adapted to the station, and
acting under circumstances favorable to deliberation, and to a judicious
combination of all the reasons and inducements which were proper to
govern their choice. A small number of persons, selected by their
fellow-citizens from the general mass, will be most likely to possess
the information and discernment requisite to such complicated
investigations.
It was also peculiarly desirable to afford as little opportunity as
possible to tumult and disorder. This evil was not least to be dreaded
in the election of a magistrate, who was to have so important an agency
in the administration of the government as the President of the United
States. But the precautions which have been so happily concerted in the
system under consideration, promise an effectual security against this
mischief. The choice of SEVERAL, to form an intermediate body of
electors, will be much less apt to convulse the community with any
extraordinary or violent movements, than the choice of ONE who was
himself to be the final object of the public wishes. And as the
electors, chosen in each State, are to assemble and vote in the State in
which they are chosen, this detached and divided situation will expose
them much less to heats and ferments, which might be communicated from
them to the people, than if they were all to be convened at one time, in
one place.
Nothing was more to be desired than that every practicable obstacle
should be opposed to cabal, intrigue, and corruption. These most deadly
adversaries of republican government might naturally have been expected
to make their approaches from more than one querter, but chiefly from
the desire in foreign powers to gain an improper ascendant in our
councils. How could they better gratify this, than by raising a creature
of their own to the chief magistracy of the Union? But the convention
have guarded against all danger of this sort, with the most provident
and judicious attention. They have not made the appointment of the
President to depend on any preexisting bodies of men, who might be
tampered with beforehand to prostitute their votes; but they have
referred it in the first instance to an immediate act of the people of
America, to be exerted in the choice of persons for the temporary and
sole purpose of making the appointment. And they have excluded from
eligibility to this trust, all those who from situation might be
suspected of too great devotion to the President in office. No senator,
representative, or other person holding a place of trust or profit under
the United States, can be of the numbers of the electors. Thus without
corrupting the body of the people, the immediate agents in the election
will at least enter upon the task free from any sinister bias. Their
transient existence, and their detached situation, already taken notice
of, afford a satisfactory prospect of their continuing so, to the
conclusion of it. The business of corruption, when it is to embrace so
considerable a number of men, requires time as well as means. Nor would
it be found easy suddenly to embark them, dispersed as they would be
over thirteen States, in any combinations founded upon motives, which
though they could not properly be denominated corrupt, might yet be of a
nature to mislead them from their duty.
Another and no less important desideratum was, that the Executive should
be independent for his continuance in office on all but the people
themselves. He might otherwise be tempted to sacrifice his duty to his
complaisance for those whose favor was necessary to the duration of his
official consequence. This advantage will also be secured, by making his
re-election to depend on a special body of representatives, deputed by
the society for the single purpose of making the important choice.
All these advantages will happily combine in the plan devised by the
convention; which is, that the people of each State shall choose a
number of persons as electors, equal to the number of senators and
representatives of such State in the national government, who shall
assemble within the State, and vote for some fit person as President.
Their votes, thus given, are to be transmitted to the seat of the
national government, and the person who may happen to have a majority of
the whole number of votes will be the President. But as a majority of
the votes might not always happen to centre in one man, and as it might
be unsafe to permit less than a majority to be conclusive, it is
provided that, in such a contingency, the House of Representatives shall
select out of the candidates who shall have the five highest number of
votes, the man who in their opinion may be best qualified for the
office.
The process of election affords a moral certainty, that the office of
President will never fall to the lot of any man who is not in an eminent
degree endowed with the requisite qualifications. Talents for low
intrigue, and the little arts of popularity, may alone suffice to
elevate a man to the first honors in a single State; but it will require
other talents, and a different kind of merit, to establish him in the
esteem and confidence of the whole Union, or of so considerable a
portion of it as would be necessary to make him a successful candidate
for the distinguished office of President of the United States. It will
not be too strong to say, that there will be a constant probability of
seeing the station filled by characters pre-eminent for ability and
virtue. And this will be thought no inconsiderable recommendation of the
Constitution, by those who are able to estimate the share which the
executive in every government must necessarily have in its good or ill
administration. Though we cannot acquiesce in the political heresy of
the poet who says:
"For forms of government let fools contest --
That which is best administered is best," --
yet we may safely pronounce, that the true test of a good government is
its aptitude and tendency to produce a good administration.
The Vice-President is to be chosen in the same manner with the
President; with this difference, that the Senate is to do, in respect to
the former, what is to be done by the House of Representatives, in
respect to the latter.
The appointment of an extraordinary person, as Vice-President, has been
objected to as superfluous, if not mischievous. It has been alleged,
that it would have been preferable to have authorized the Senate to
elect out of their own body an officer answering that description. But
two considerations seem to justify the ideas of the convention in this
respect. One is, that to secure at all times the possibility of a
definite resolution of the body, it is necessary that the President
should have only a casting vote. And to take the senator of any State
from his seat as senator, to place him in that of President of the
Senate, would be to exchange, in regard to the State from which he came,
a constant for a contingent vote. The other consideration is, that as
the Vice-President may occasionally become a substitute for the
President, in the supreme executive magistracy, all the reasons which
recommend the mode of election prescribed for the one, apply with great
if not with equal force to the manner of appointing the other. It is
remarkable that in this, as in most other instances, the objection which
is made would lie against the constitution of this State. We have a
Lieutenant-Governor, chosen by the people at large, who presides in the
Senate, and is the constitutional substitute for the Governor, in
casualties similar to those which would authorize the Vice-President to
exercise the authorities and discharge the duties of the President.
PUBLIUS
1. Vide federal farmer.
E1. Some editions substitute "desired" for "wished for".
____
FEDERALIST No. 69
The Real Character of the Executive
From the New York Packet.
Friday, March 14, 1788.
HAMILTON
To the People of the State of New York:
I PROCEED now to trace the real characters of the proposed Executive, as
they are marked out in the plan of the convention. This will serve to
place in a strong light the unfairness of the representations which have
been made in regard to it.
The first thing which strikes our attention is, that the executive
authority, with few exceptions, is to be vested in a single magistrate.
This will scarcely, however, be considered as a point upon which any
comparison can be grounded; for if, in this particular, there be a
resemblance to the king of Great Britain, there is not less a
resemblance to the Grand Seignior, to the khan of Tartary, to the Man of
the Seven Mountains, or to the governor of New York.
That magistrate is to be elected for four years; and is to be
re-eligible as often as the people of the United States shall think him
worthy of their confidence. In these circumstances there is a total
dissimilitude between him and a king of Great Britain, who is an
hereditary monarch, possessing the crown as a patrimony descendible to
his heirs forever; but there is a close analogy between him and a
governor of New York, who is elected for three years, and is re-eligible
without limitation or intermission. If we consider how much less time
would be requisite for establishing a dangerous influence in a single
State, than for establishing a like influence throughout the United
States, we must conclude that a duration of four years for the Chief
Magistrate of the Union is a degree of permanency far less to be dreaded
in that office, than a duration of three years for a corresponding
office in a single State.
The President of the United States would be liable to be impeached,
tried, and, upon conviction of treason, bribery, or other high crimes or
misdemeanors, removed from office; and would afterwards be liable to
prosecution and punishment in the ordinary course of law. The person of
the king of Great Britain is sacred and inviolable; there is no
constitutional tribunal to which he is amenable; no punishment to which
he can be subjected without involving the crisis of a national
revolution. In this delicate and important circumstance of personal
responsibility, the President of Confederated America would stand upon
no better ground than a governor of New York, and upon worse ground than
the governors of Maryland and Delaware.
The President of the United States is to have power to return a bill,
which shall have passed the two branches of the legislature, for
reconsideration; and the bill so returned is to become a law, if, upon
that reconsideration, it be approved by two thirds of both houses. The
king of Great Britain, on his part, has an absolute negative upon the
acts of the two houses of Parliament. The disuse of that power for a
considerable time past does not affect the reality of its existence; and
is to be ascribed wholly to the crown's having found the means of
substituting influence to authority, or the art of gaining a majority in
one or the other of the two houses, to the necessity of exerting a
prerogative which could seldom be exerted without hazarding some degree
of national agitation. The qualified negative of the President differs
widely from this absolute negative of the British sovereign; and tallies
exactly with the revisionary authority of the council of revision of
this State, of which the governor is a constituent part. In this respect
the power of the President would exceed that of the governor of New
York, because the former would possess, singly, what the latter shares
with the chancellor and judges; but it would be precisely the same with
that of the governor of Massachusetts, whose constitution, as to this
article, seems to have been the original from which the convention have
copied.
The President is to be the "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. He is to have power to
grant reprieves and pardons for offenses against the United States,
except in cases of impeachment; to recommend to the consideration of
Congress such measures as he shall judge necessary and expedient; to
convene, on extraordinary occasions, both houses of the legislature, or
either of them, and, in case of disagreement between them with respect
to the time of adjournment, to adjourn them to such time as he shall
think proper; to take care that the laws be faithfully executed; and to
commission all officers of the United States." In most of these
particulars, the power of the President will resemble equally that of
the king of Great Britain and of the governor of New York. The most
material points of difference are these: -- First. The President will have
only the occasional command of such part of the militia of the nation as
by legislative provision may be called into the actual service of the
Union. The king of Great Britain and the governor of New York have at
all times the entire command of all the militia within their several
jurisdictions. In this article, therefore, the power of the President
would be inferior to that of either the monarch or the governor.
Second. The President is to be commander-in-chief of the army and navy
of the United States. In this respect his authority would be nominally
the same with that of the king of Great Britain, but in substance much
inferior to it. It would amount to nothing more than the supreme command
and direction of the military and naval forces, as first General and
admiral of the Confederacy; while that of the British king extends to
the declaring of war and to the raising and regulating of fleets and
armies -- all which, by the Constitution under consideration, would
appertain to the legislature.[1] The governor of New York, on the other
hand, is by the constitution of the State vested only with the command
of its militia and navy. But the constitutions of several of the States
expressly declare their governors to be commanders-in-chief, as well of
the army as navy; and it may well be a question, whether those of New
Hampshire and Massachusetts, in particular, do not, in this instance,
confer larger powers upon their respective governors, than could be
claimed by a President of the United States. Third. The power of the
President, in respect to pardons, would extend to all cases, except
those of impeachment. The governor of New York may pardon in all cases,
even in those of impeachment, except for treason and murder. Is not the
power of the governor, in this article, on a calculation of political
consequences, greater than that of the President? All conspiracies and
plots against the government, which have not been matured into actual
treason, may be screened from punishment of every kind, by the
interposition of the prerogative of pardoning. If a governor of New
York, therefore, should be at the head of any such conspiracy, until the
design had been ripened into actual hostility he could insure his
accomplices and adherents an entire impunity. A President of the Union,
on the other hand, though he may even pardon treason, when prosecuted in
the ordinary course of law, could shelter no offender, in any degree,
from the effects of impeachment and conviction. Would not the prospect
of a total indemnity for all the preliminary steps be a greater
temptation to undertake and persevere in an enterprise against the
public liberty, than the mere prospect of an exemption from death and
confiscation, if the final execution of the design, upon an actual
appeal to arms, should miscarry? Would this last expectation have any
influence at all, when the probability was computed, that the person who
was to afford that exemption might himself be involved in the
consequences of the measure, and might be incapacitated by his agency in
it from affording the desired impunity? The better to judge of this
matter, it will be necessary to recollect, that, by the proposed
Constitution, the offense of treason is limited "to levying war upon the
United States, and adhering to their enemies, giving them aid and
comfort"; and that by the laws of New York it is confined within similar
bounds. Fourth. The President can only adjourn the national
legislature in the single case of disagreement about the time of
adjournment. The British monarch may prorogue or even dissolve the
Parliament. The governor of New York may also prorogue the legislature
of this State for a limited time; a power which, in certain situations,
may be employed to very important purposes.
The President is to have power, with the advice and consent of the
Senate, to make treaties, provided two thirds of the senators present
concur. The king of Great Britain is the sole and absolute
representative of the nation in all foreign transactions. He can of his
own accord make treaties of peace, commerce, alliance, and of every
other description. It has been insinuated, that his authority in this
respect is not conclusive, and that his conventions with foreign powers
are subject to the revision, and stand in need of the ratification, of
Parliament. But I believe this doctrine was never heard of, until it was
broached upon the present occasion. Every jurist[2] of that kingdom, and
every other man acquainted with its Constitution, knows, as an
established fact, that the prerogative of making treaties exists in the
crown in its utomst plentitude; and that the compacts entered into by
the royal authority have the most complete legal validity and
perfection, independent of any other sanction. The Parliament, it is
true, is sometimes seen employing itself in altering the existing laws
to conform them to the stipulations in a new treaty; and this may have
possibly given birth to the imagination, that its co-operation was
necessary to the obligatory efficacy of the treaty. But this
parliamentary interposition proceeds from a different cause: from the
necessity of adjusting a most artificial and intricate system of revenue
and commercial laws, to the changes made in them by the operation of the
treaty; and of adapting new provisions and precautions to the new state
of things, to keep the machine from running into disorder. In this
respect, therefore, there is no comparison between the intended power of
the President and the actual power of the British sovereign. The one can
perform alone what the other can do only with the concurrence of a
branch of the legislature. It must be admitted, that, in this instance,
the power of the federal Executive would exceed that of any State
Executive. But this arises naturally from the sovereign power which
relates to treaties. If the Confederacy were to be dissolved, it would
become a question, whether the Executives of the several States were not
solely invested with that delicate and important prerogative.
The President is also to be authorized to receive ambassadors and other
public ministers. This, though it has been a rich theme of declamation,
is more a matter of dignity than of authority. It is a circumstance
which will be without consequence in the administration of the
government; and it was far more convenient that it should be arranged in
this manner, than that there should be a necessity of convening the
legislature, or one of its branches, upon every arrival of a foreign
minister, though it were merely to take the place of a departed
predecessor.
The President is to nominate, and, with the advice and consent of the
Senate, to appoint ambassadors and other public ministers, judges of the
Supreme Court, and in general all officers of the United States
established by law, and whose appointments are not otherwise provided
for by the Constitution. The king of Great Britain is emphatically and
truly styled the fountain of honor. He not only appoints to all offices,
but can create offices. He can confer titles of nobility at pleasure;
and has the disposal of an immense number of church preferments. There
is evidently a great inferiority in the power of the President, in this
particular, to that of the British king; nor is it equal to that of the
governor of New York, if we are to interpret the meaning of the
constitution of the State by the practice which has obtained under it.
The power of appointment is with us lodged in a council, composed of the
governor and four members of the Senate, chosen by the Assembly. The
governor claims, and has frequently exercised, the right of nomination,
and is entitled to a casting vote in the appointment. If he really has
the right of nominating, his authority is in this respect equal to that
of the President, and exceeds it in the article of the casting vote. In
the national government, if the Senate should be divided, no appointment
could be made; in the government of New York, if the council should be
divided, the governor can turn the scale, and confirm his own
nomination.[3] If we compare the publicity which must necessarily attend
the mode of appointment by the President and an entire branch of the
national legislature, with the privacy in the mode of appointment by the
governor of New York, closeted in a secret apartment with at most four,
and frequently with only two persons; and if we at the same time
consider how much more easy it must be to influence the small number of
which a council of appointment consists, than the considerable number of
which the national Senate would consist, we cannot hesitate to pronounce
that the power of the chief magistrate of this State, in the disposition
of offices, must, in practice, be greatly superior to that of the Chief
Magistrate of the Union.
Hence it appears that, except as to the concurrent authority of the
President in the article of treaties, it would be difficult to determine
whether that magistrate would, in the aggregate, possess more or less
power than the Governor of New York. And it appears yet more
unequivocally, that there is no pretense for the parallel which has been
attempted between him and the king of Great Britain. But to render the
contrast in this respect still more striking, it may be of use to throw
the principal circumstances of dissimilitude into a closer group.
The President of the United States would be an officer elected by the
people for four years; the king of Great Britain is a perpetual and
hereditary prince. The one would be amenable to personal punishment and
disgrace; the person of the other is sacred and inviolable. The one
would have a qualified negative upon the acts of the legislative body;
the other has an absolute negative. The one would have a right to
command the military and naval forces of the nation; the other, in
addition to this right, possesses that of declaring war, and of raising
and regulating fleets and armies by his own authority. The one would
have a concurrent power with a branch of the legislature in the
formation of treaties; the other is the sole possessor of the power of
making treaties. The one would have a like concurrent authority in
appointing to offices; the other is the sole author of all appointments.
The one can confer no privileges whatever; the other can make denizens
of aliens, noblemen of commoners; can erect corporations with all the
rights incident to corporate bodies. The one can prescribe no rules
concerning the commerce or currency of the nation; the other is in
several respects the arbiter of commerce, and in this capacity can
establish markets and fairs, can regulate weights and measures, can lay
embargoes for a limited time, can coin money, can authorize or prohibit
the circulation of foreign coin. The one has no particle of spiritual
jurisdiction; the other is the supreme head and governor of the national
church! What answer shall we give to those who would persuade us that
things so unlike resemble each other? The same that ought to be given to
those who tell us that a government, the whole power of which would be
in the hands of the elective and periodical servants of the people, is
an aristocracy, a monarchy, and a despotism.
PUBLIUS
1. A writer in a Pennsylvania paper, under the signature of TAMONY, has
asserted that the king of Great Britain oweshis prerogative as
commander-in-chief to an annual mutiny bill. The truth is, on the
contrary, that his prerogative, in this respect, is immenmorial, and was
only disputed, "contrary to all reason and precedent," as Blackstone
vol. i., page 262, expresses it, by the Long Parliament of Charles I.
but by the statute the 13th of Charles II., chap. 6, it was declared to
be in the king alone, for that the sole supreme government and command
of the militia within his Majesty's realms and dominions, and of all
forces by sea and land, and of all forts and places of strength, EVER
WAS AND IS the undoubted right of his Majesty and his royal
predecessors, kings and queens of England, and that both or either house
of Parliament cannot nor ought to pretend to the same.
2. Vide Blackstone's Commentaries, Vol I., p. 257.
3. Candor, however, demands an acknowledgment that I do not think the
claim of the governor to a right of nomination well founded. Yet it is
always justifiable to reason from the practice of a government, till its
propriety has been constitutionally questioned. And independent of this
claim, when we take into view the other considerations, and pursue them
through all their consequences, we shall be inclined to draw much the
same conclusion.
____
FEDERALIST No. 70
The Executive Department Further Considered
From the Independent Journal.
Saturday, March 15, 1788.
HAMILTON
To the People of the State of New York:
THERE is an idea, which is not without its advocates, that a vigorous
Executive is inconsistent with the genius of republican government. The
enlightened well-wishers to this species of government must at least
hope that the supposition is destitute of foundation; since they can
never admit its truth, without at the same time admitting the
condemnation of their own principles. Energy in the Executive is a
leading character in the definition of good government. It is essential
to the protection of the community against foreign attacks; it is not
less essential to the steady administration of the laws; to the
protection of property against those irregular and high-handed
combinations which sometimes interrupt the ordinary course of justice;
to the security of liberty against the enterprises and assaults of
ambition, of faction, and of anarchy. Every man the least conversant in
Roman story, knows how often that republic was obliged to take refuge in
the absolute power of a single man, under the formidable title of
Dictator, as well against the intrigues of ambitious individuals who
aspired to the tyranny, and the seditions of whole classes of the
community whose conduct threatened the existence of all government, as
against the invasions of external enemies who menaced the conquest and
destruction of Rome.
There can be no need, however, to multiply arguments or examples on this
head. A feeble Executive implies a feeble execution of the government. A
feeble execution is but another phrase for a bad execution; and a
government ill executed, whatever it may be in theory, must be, in
practice, a bad government.
Taking it for granted, therefore, that all men of sense will agree in
the necessity of an energetic Executive, it will only remain to inquire,
what are the ingredients which constitute this energy? How far can they
be combined with those other ingredients which constitute safety in the
republican sense? And how far does this combination characterize the
plan which has been reported by the convention?
The ingredients which constitute energy in the Executive are, first,
unity; secondly, duration; thirdly, an adequate provision for its
support; fourthly, competent powers.
The ingredients which constitute safety in the repub lican sense are,
first, a due dependence on the people, secondly, a due responsibility.
Those politicians and statesmen who have been the most celebrated for
the soundness of their principles and for the justice of their views,
have declared in favor of a single Executive and a numerous legislature.
They have with great propriety, considered energy as the most necessary
qualification of the former, and have regarded this as most applicable
to power in a single hand, while they have, with equal propriety,
considered the latter as best adapted to deliberation and wisdom, and
best calculated to conciliate the confidence of the people and to secure
their privileges and interests.
That unity is conducive to energy will not be disputed. Decision,
activity, secrecy, and despatch will generally characterize the
proceedings of one man in a much more eminent degree than the
proceedings of any greater number; and in proportion as the number is
increased, these qualities will be diminished.
This unity may be destroyed in two ways: either by vesting the power in
two or more magistrates of equal dignity and authority; or by vesting it
ostensibly in one man, subject, in whole or in part, to the control and
co-operation of others, in the capacity of counsellors to him. Of the
first, the two Consuls of Rome may serve as an example; of the last, we
shall find examples in the constitutions of several of the States. New
York and New Jersey, if I recollect right, are the only States which
have intrusted the executive authority wholly to single men.[1] Both
these methods of destroying the unity of the Executive have their
partisans; but the votaries of an executive council are the most
numerous. They are both liable, if not to equal, to similar objections,
and may in most lights be examined in conjunction.
The experience of other nations will afford little instruction on this
head. As far, however, as it teaches any thing, it teaches us not to be
enamoured of plurality in the Executive. We have seen that the Achaeans,
on an experiment of two Praetors, were induced to abolish one. The Roman
history records many instances of mischiefs to the republic from the
dissensions between the Consuls, and between the military Tribunes, who
were at times substituted for the Consuls. But it gives us no specimens
of any peculiar advantages derived to the state from the circumstance of
the plurality of those magistrates. That the dissensions between them
were not more frequent or more fatal, is a matter of astonishment, until
we advert to the singular position in which the republic was almost
continually placed, and to the prudent policy pointed out by the
circumstances of the state, and pursued by the Consuls, of making a
division of the government between them. The patricians engaged in a
perpetual struggle with the plebeians for the preservation of their
ancient authorities and dignities; the Consuls, who were generally
chosen out of the former body, were commonly united by the personal
interest they had in the defense of the privileges of their order. In
addition to this motive of union, after the arms of the republic had
considerably expanded the bounds of its empire, it became an established
custom with the Consuls to divide the administration between themselves
by lot -- one of them remaining at Rome to govern the city and its
environs, the other taking the command in the more distant provinces.
This expedient must, no doubt, have had great influence in preventing
those collisions and rivalships which might otherwise have embroiled the
peace of the republic.
But quitting the dim light of historical research, attaching ourselves
purely to the dictates of reason and good sense, we shall discover much
greater cause to reject than to approve the idea of plurality in the
Executive, under any modification whatever.
Wherever two or more persons are engaged in any common enterprise or
pursuit, there is always danger of difference of opinion. If it be a
public trust or office, in which they are clothed with equal dignity and
authority, there is peculiar danger of personal emulation and even
animosity. From either, and especially from all these causes, the most
bitter dissensions are apt to spring. Whenever these happen, they lessen
the respectability, weaken the authority, and distract the plans and
operation of those whom they divide. If they should unfortunately assail
the supreme executive magistracy of a country, consisting of a plurality
of persons, they might impede or frustrate the most important measures
of the government, in the most critical emergencies of the state. And
what is still worse, they might split the community into the most
violent and irreconcilable factions, adhering differently to the
different individuals who composed the magistracy.
Men often oppose a thing, merely because they have had no agency in
planning it, or because it may have been planned by those whom they
dislike. But if they have been consulted, and have happened to
disapprove, opposition then becomes, in their estimation, an
indispensable duty of self-love. They seem to think themselves bound in
honor, and by all the motives of personal infallibility, to defeat the
success of what has been resolved upon contrary to their sentiments. Men
of upright, benevolent tempers have too many opportunities of remarking,
with horror, to what desperate lengths this disposition is sometimes
carried, and how often the great interests of society are sacrificed to
the vanity, to the conceit, and to the obstinacy of individuals, who
have credit enough to make their passions and their caprices interesting
to mankind. Perhaps the question now before the public may, in its
consequences, afford melancholy proofs of the effects of this despicable
frailty, or rather detestable vice, in the human character.
Upon the principles of a free government, inconveniences from the source
just mentioned must necessarily be submitted to in the formation of the
legislature; but it is unnecessary, and therefore unwise, to introduce
them into the constitution of the Executive. It is here too that they
may be most pernicious. In the legislature, promptitude of decision is
oftener an evil than a benefit. The differences of opinion, and the
jarrings of parties in that department of the government, though they
may sometimes obstruct salutary plans, yet often promote deliberation
and circumspection, and serve to check excesses in the majority. When a
resolution too is once taken, the opposition must be at an end. That
resolution is a law, and resistance to it punishable. But no favorable
circumstances palliate or atone for the disadvantages of dissension in
the executive department. Here, they are pure and unmixed. There is no
point at which they cease to operate. They serve to embarrass and weaken
the execution of the plan or measure to which they relate, from the
first step to the final conclusion of it. They constantly counteract
those qualities in the Executive which are the most necessary
ingredients in its composition -- vigor and expedition, and this without
anycounterbalancing good. In the conduct of war, in which the energy of
the Executive is the bulwark of the national security, every thing would
be to be apprehended from its plurality.
It must be confessed that these observations apply with principal weight
to the first case supposed -- that is, to a plurality of magistrates of
equal dignity and authority a scheme, the advocates for which are not
likely to form a numerous sect; but they apply, though not with equal,
yet with considerable weight to the project of a council, whose
concurrence is made constitutionally necessary to the operations of the
ostensible Executive. An artful cabal in that council would be able to
distract and to enervate the whole system of administration. If no such
cabal should exist, the mere diversity of views and opinions would alone
be sufficient to tincture the exercise of the executive authority with a
spirit of habitual feebleness and dilatoriness.
[But one of the weightiest objections to a plurality in the Executive,
and which lies as much against the last as the first plan, is, that it
tends to conceal faults and destroy responsibility. Responsibility is of
two kinds -- to censure and to punishment. The first is the more important
of the two, especially in an elective office. Man, in public trust, will
much oftener act in such a manner as to render him unworthy of being any
longer trusted, than in such a manner as to make him obnoxious to legal
punishment. But the multiplication of the Executive adds to the
difficulty of detection in either case. It often becomes impossible,
amidst mutual accusations, to determine on whom the blame or the
punishment of a pernicious measure, or series of pernicious measures,
ought really to fall. It is shifted from one to another with so much
dexterity, and under such plausible appearances, that the public opinion
is left in suspense about the real author. The circumstances which may
have led to any national miscarriage or misfortune are sometimes so
complicated that, where there are a number of actors who may have had
different degrees and kinds of agency, though we may clearly see upon
the whole that there has been mismanagement, yet it may be impracticable
to pronounce to whose account the evil which may have been incurred is
truly chargeable.][E1]
[But one of the weightiest objections to a plurality in the Executive,
and which lies as much against the last as the first plan, is, that it
tends to conceal faults and destroy responsibility.
Responsibility is of two kinds -- to censure and to punishment. The first
is the more important of the two, especially in an elective office. Man,
in public trust, will much oftener act in such a manner as to render him
unworthy of being any longer trusted, than in such a manner as to make
him obnoxious to legal punishment. But the multiplication of the
Executive adds to the difficulty of detection in either case. It often
becomes impossible, amidst mutual accusations, to determine on whom the
blame or the punishment of a pernicious measure, or series of pernicious
measures, ought really to fall. It is shifted from one to another with
so much dexterity, and under such plausible appearances, that the public
opinion is left in suspense about the real author. The circumstances
which may have led to any national miscarriage or misfortune are
sometimes so complicated that, where there are a number of actors who
may have had different degrees and kinds of agency, though we may
clearly see upon the whole that there has been mismanagement, yet it may
be impracticable to pronounce to whose account the evil which may have
been incurred is truly chargeable.][E1]
"I was overruled by my council. The council were so divided in their
opinions that it was impossible to obtain any better resolution on the
point." These and similar pretexts are constantly at hand, whether true
or false. And who is there that will either take the trouble or incur
the odium, of a strict scrunity into the secret springs of the
transaction? Should there be found a citizen zealous enough to undertake
the unpromising task, if there happen to be collusion between the
parties concerned, how easy it is to clothe the circumstances with so
much ambiguity, as to render it uncertain what was the precise conduct
of any of those parties?
In the single instance in which the governor of this State is coupled
with a council -- that is, in the appointment to offices, we have seen the
mischiefs of it in the view now under consideration. Scandalous
appointments to important offices have been made. Some cases, indeed,
have been so flagrant that ALL PARTIES have agreed in the impropriety of
the thing. When inquiry has been made, the blame has been laid by the
governor on the members of the council, who, on their part, have charged
it upon his nomination; while the people remain altogether at a loss to
determine, by whose influence their interests have been committed to
hands so unqualified and so manifestly improper. In tenderness to
individuals, I forbear to descend to particulars.
It is evident from these considerations, that the plurality of the
Executive tends to deprive the people of the two greatest securities
they can have for the faithful exercise of any delegated power, first,
the restraints of public opinion, which lose their efficacy, as well on
account of the division of the censure attendant on bad measures among a
number, as on account of the uncertainty on whom it ought to fall; and,
second, the opportunity of discovering with facility and clearness the
misconduct of the persons they trust, in order either to their removal
from office or to their actual punishment in cases which admit of it.
In England, the king is a perpetual magistrate; and it is a maxim which
has obtained for the sake of the pub lic peace, that he is unaccountable
for his administration, and his person sacred. Nothing, therefore, can
be wiser in that kingdom, than to annex to the king a constitutional
council, who may be responsible to the nation for the advice they give.
Without this, there would be no responsibility whatever in the executive
department an idea inadmissible in a free government. But even there the
king is not bound by the resolutions of his council, though they are
answerable for the advice they give. He is the absolute master of his
own conduct in the exercise of his office, and may observe or disregard
the counsel given to him at his sole discretion.
But in a republic, where every magistrate ought to be personally
responsible for his behavior in office the reason which in the British
Constitution dictates the propriety of a council, not only ceases to
apply, but turns against the institution. In the monarchy of Great
Britain, it furnishes a substitute for the prohibited responsibility of
the chief magistrate, which serves in some degree as a hostage to the
national justice for his good behavior. In the American republic, it
would serve to destroy, or would greatly diminish, the intended and
necessary responsibility of the Chief Magistrate himself.
The idea of a council to the Executive, which has so generally obtained
in the State constitutions, has been derived from that maxim of
republican jealousy which considers power as safer in the hands of a
number of men than of a single man. If the maxim should be admitted to
be applicable to the case, I should contend that the advantage on that
side would not counterbalance the numerous disadvantages on the opposite
side. But I do not think the rule at all applicable to the executive
power. I clearly concur in opinion, in this particular, with a writer
whom the celebrated Junius pronounces to be "deep, solid, and
ingenious," that "the executive power is more easily confined when it is
ONE";[2] that it is far more safe there should be a single object for
the jealousy and watchfulness of the people; and, in a word, that all
multiplication of the Executive is rather dangerous than friendly to
liberty.
A little consideration will satisfy us, that the species of security
sought for in the multiplication of the Executive, is nattainable.
Numbers must be so great as to render combination difficult, or they are
rather a source of danger than of security. The united credit and
influence of several individuals must be more formidable to liberty,
than the credit and influence of either of them separately. When power,
therefore, is placed in the hands of so small a number of men, as to
admit of their interests and views being easily combined in a common
enterprise, by an artful leader, it becomes more liable to abuse, and
more dangerous when abused, than if it be lodged in the hands of one
man; who, from the very circumstance of his being alone, will be more
narrowly watched and more readily suspected, and who cannot unite so
great a mass of influence as when he is associated with others. The
Decemvirs of Rome, whose name denotes their number,[3] were more to be
dreaded in their usurpation than any ONE of them would have been. No
person would think of proposing an Executive much more numerous than
that body; from six to a dozen have been suggested for the number of the
council. The extreme of these numbers, is not too great for an easy
combination; and from such a combination America would have more to
fear, than from the ambition of any single individual. A council to a
magistrate, who is himself responsible for what he does, are generally
nothing better than a clog upon his good intentions, are often the
instruments and accomplices of his bad and are almost always a cloak to
his faults.
I forbear to dwell upon the subject of expense; though it be evident
that if the council should be numerous enough to answer the principal
end aimed at by the institution, the salaries of the members, who must
be drawn from their homes to reside at the seat of government, would
form an item in the catalogue of public expenditures too serious to be
incurred for an object of equivocal utility. I will only add that, prior
to the appearance of the Constitution, I rarely met with an intelligent
man from any of the States, who did not admit, as the result of
experience, that the UNITY of the executive of this State was one of the
best of the distinguishing features of our constitution.
PUBLIUS
1. New York has no council except for the single purpose of appointing to
offices; New Jersey has a council whom the governor may consult. But I
think, from the terms of the constitution, their resolutions do not bind
him.
2. De Lolme.
3. Ten.
E1. Two versions of these paragraphs appear in different editions.
____
FEDERALIST No. 71
The Duration in Office of the Executive
From the New York Packet.
Tuesday, March 18, 1788.
HAMILTON
To the People of the State of New York:
DURATION in office has been mentioned as the second requisite to the
energy of the Executive authority. This has relation to two objects: to
the personal firmness of the executive magistrate, in the employment of
his constitutional powers; and to the stability of the system of
administration which may have been adopted under his auspices. With
regard to the first, it must be evident, that the longer the duration in
office, the greater will be the probability of obtaining so important an
advantage. It is a general principle of human nature, that a man will be
interested in whatever he possesses, in proportion to the firmness or
precariousness of the tenure by which he holds it; will be less attached
to what he holds by a momentary or uncertain title, than to what he
enjoys by a durable or certain title; and, of course, will be willing to
risk more for the sake of the one, than for the sake of the other. This
remark is not less applicable to a political privilege, or honor, or
trust, than to any article of ordinary property. The inference from it
is, that a man acting in the capacity of chief magistrate, under a
consciousness that in a very short time he MUST lay down his office,
will be apt to feel himself too little interested in it to hazard any
material censure or perplexity, from the independent exertion of his
powers, or from encountering the ill-humors, however transient, which
may happen to prevail, either in a considerable part of the society
itself, or even in a predominant faction in the legislative body. If the
case should only be, that he MIGHT lay it down, unless continued by a
new choice, and if he should be desirous of being continued, his wishes,
conspiring with his fears, would tend still more powerfully to corrupt
his integrity, or debase his fortitude. In either case, feebleness and
irresolution must be the characteristics of the station.
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 fellowcitizens, 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;
2d, greater security to the people. Unless the exclusion be perpetual,
there will be no pretense to infer the first advantage. But even in that
case, may he have no object beyond his present station, to which he may
sacrifice his independence? May he have no connections, no friends, for
whom he may sacrifice it? May he not be less willing by a firm conduct,
to make personal enemies, when he acts under the impression that a time
is fast approaching, on the arrival of which he not only MAY, but MUST,
be exposed to their resentments, upon an equal, perhaps upon an
inferior, footing? It is not an easy point to determine whether his
independence would be most promoted or impaired by such an arrangement.
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 selfdefense.
But the power in question has a further use. It not only serves as a
shield to the Executive, but it furnishes an additional security against
the enaction of improper laws. It establishes a salutary check upon the
legislative body, calculated to guard the community against the effects
of faction, precipitancy, or of any impulse unfriendly to the public
good, which may happen to influence a majority of that body.
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 levelled at the immediate being of the society, when the laws
have once ascertained the guilt of the offender, there seems a fitness
in referring the expediency of an act of mercy towards him to the
judgment of the legislature. And this ought the rather to be the case,
as the supposition of the connivance of the Chief Magistrate ought not
to be entirely excluded. But there are also strong objections to such a
plan. It is not to be doubted, that a single man of prudence and good
sense is better fitted, in delicate conjunctures, to balance the motives
which may plead for and against the remission of the punishment, than
any numerous body whatever. It deserves particular attention, that
treason will often be connected with seditions which embrace a large
proportion of the community; as lately happened in Massachusetts. In
every such case, we might expect to see the representation of the people
tainted with the same spirit which had given birth to the offense. And
when parties were pretty equally matched, the secret sympathy of the
friends and favorers of the condemned person, availing itself of the
good-nature and weakness of others, might frequently bestow impunity
where the terror of an example was necessary. On the other hand, when
the sedition had proceeded from causes which had inflamed the
resentments of the major party, they might often be found obstinate and
inexorable, when policy demanded a conduct of forbearance and clemency.
But the principal argument for reposing the power of pardoning in this
case to the Chief Magistrate is this: in seasons of insurrection or
rebellion, there are often critical moments, when a welltimed offer of
pardon to the insurgents or rebels may restore the tranquillity of the
commonwealth; and which, if suffered to pass unimproved, it may never be
possible afterwards to recall. The dilatory process of convening the
legislature, or one of its branches, for the purpose of obtaining its
sanction to the measure, would frequently be the occasion of letting
slip the golden opportunity. The loss of a week, a day, an hour, may
sometimes be fatal. If it should be observed, that a discretionary
power, with a view to such contingencies, might be occasionally
conferred upon the President, it may be answered in the first place,
that it is questionable, wh