STATE OF THE UNION AND RECOMMENDATIONS

QUOTE
FEDERALIST No. 43
The Same Subject Continued(The Powers Conferred by the
Constitution Further Considered)
For the Independent Journal.

MADISON

To the People of the State of New York:
THE FOURTH class comprises the following miscellaneous powers:1.
A power ``to promote the progress of science and useful arts, by
securing, for a limited time, to authors and inventors, the
exclusive right to their respective writings and discoveries.
''The utility of this power will scarcely be questioned. The
copyright of authors has been solemnly adjudged, in Great
Britain, to be a right of common law. The right to useful
inventions seems with equal reason to belong to the inventors.
The public good fully coincides in both cases with the claims of
individuals. The States cannot separately make effectual
provisions for either of the cases, and most of them have
anticipated the decision of this point, by laws passed at the
instance of Congress. 2. ``To exercise exclusive legislation, in
all cases whatsoever, over such district (not exceeding ten miles
square) as may, by cession of particular States and the
acceptance of Congress, become the seat of the government of the
United States; and to exercise like authority over all places
purchased by the consent of the legislatures of the States in
which the same shall be, for the erection of forts, magazines,
arsenals, dockyards, and other needful buildings. ''The
indispensable necessity of complete authority at the seat of
government, carries its own evidence with it. It is a power
exercised by every legislature of the Union, I might say of the
world, by virtue of its general supremacy. Without it, not only
the public authority might be insulted and its proceedings
interrupted with impunity; but a dependence of the members of the
general government on the State comprehending the seat of the
government, for protection in the exercise of their duty, might
bring on the national councils an imputation of awe or influence,
equally dishonorable to the government and dissatisfactory to the
other members of the Confederacy. This consideration has the more
weight, as the gradual accumulation of public improvements at the
stationary residence of the government would be both too great a
public pledge to be left in the hands of a single State, and
would create so many obstacles to a removal of the government, as
still further to abridge its necessary independence. The extent
of this federal district is sufficiently circumscribed to satisfy
every jealousy of an opposite nature. And as it is to be
appropriated to this use with the consent of the State ceding it;
as the State will no doubt provide in the compact for the rights
and the consent of the citizens inhabiting it; as the inhabitants
will find sufficient inducements of interest to become willing
parties to the cession; as they will have had their voice in the
election of the government which is to exercise authority over
them; as a municipal legislature for local purposes, derived from
their own suffrages, will of course be allowed them; and as the
authority of the legislature of the State, and of the inhabitants
of the ceded part of it, to concur in the cession, will be
derived from the whole people of the State in their adoption of
the Constitution, every imaginable objection seems to be
obviated. The necessity of a like authority over forts,
magazines, etc. , established by the general government, is not
less evident. The public money expended on such places, and the
public property deposited in them, requires that they should be
exempt from the authority of the particular State. Nor would it
be proper for the places on which the security of the entire
Union may depend, to be in any degree dependent on a particular
member of it. All objections and scruples are here also obviated,
by requiring the concurrence of the States concerned, in every
such establishment. 3. ``To declare the punishment of treason,
but no attainder of treason shall work corruption of blood, or
forfeiture, except during the life of the person attained. ''As
treason may be committed against the United States, the authority
of the United States ought to be enabled to punish it. But as
new-fangled and artificial treasons have been the great engines
by which violent factions, the natural offspring of free
government, have usually wreaked their alternate malignity on
each other, the convention have, with great judgment, opposed a
barrier to this peculiar danger, by inserting a constitutional
definition of the crime, fixing the proof necessary for
conviction of it, and restraining the Congress, even in punishing
it, from extending the consequences of guilt beyond the person of
its author. 4. ``To admit new States into the Union; but no new
State shall be formed or erected within the jurisdiction of any
other State; nor any State be formed by the junction of two or
more States, or parts of States, without the consent of the
legislatures of the States concerned, as well as of the Congress.
''In the articles of Confederation, no provision is found on this
important subject. Canada was to be admitted of right, on her
joining in the measures of the United States; and the other
COLONIES, by which were evidently meant the other British
colonies, at the discretion of nine States. The eventual
establishment of NEW STATES seems to have been overlooked by the
compilers of that instrument. We have seen the inconvenience of
this omission, and the assumption of power into which Congress
have been led by it. With great propriety, therefore, has the new
system supplied the defect. The general precaution, that no new
States shall be formed, without the concurrence of the federal
authority, and that of the States concerned, is consonant to the
principles which ought to govern such transactions. The
particular precaution against the erection of new States, by the
partition of a State without its consent, quiets the jealousy of
the larger States; as that of the smaller is quieted by a like
precaution, against a junction of States without their consent.
5. ``To dispose of and make all needful rules and regulations
respecting the territory or other property belonging to the
United States, with a proviso, that nothing in the Constitution
shall be so construed as to prejudice any claims of the United
States, or of any particular State. ''This is a power of very
great importance, and required by considerations similar to those
which show the propriety of the former. The proviso annexed is
proper in itself, and was probably rendered absolutely necessary
by jealousies and questions concerning the Western territory
sufficiently known to the public. 6. ``To guarantee to every
State in the Union a republican form of government; to protect
each of them against invasion; and on application of the
legislature, or of the executive (when the legislature cannot be
convened), against domestic violence. ''In a confederacy founded
on republican principles, and composed of republican members, the
superintending government ought clearly to possess authority to
defend the system against aristocratic or monarchial
innovations. The more intimate the nature of such a union may be,
the greater interest have the members in the political
institutions of each other; and the greater right to insist that
the forms of government under which the compact was entered into
should be SUBSTANTIALLY maintained. But a right implies a remedy;
and where else could the remedy be deposited, than where it is
deposited by the Constitution? Governments of dissimilar
principles and forms have been found less adapted to a federal
coalition of any sort, than those of a kindred nature. ``As the
confederate republic of Germany,'' says Montesquieu, ``consists
of free cities and petty states, subject to different princes,
experience shows us that it is more imperfect than that of
Holland and Switzerland. '' ``Greece was undone,'' he adds, ``as
soon as the king of Macedon obtained a seat among the
Amphictyons. '' In the latter case, no doubt, the
disproportionate force, as well as the monarchical form, of the
new confederate, had its share of influence on the events. It may
possibly be asked, what need there could be of such a
precaution, and whether it may not become a pretext for
alterations in the State governments, without the concurrence of
the States themselves. These questions admit of ready answers. If
the interposition of the general government should not be
needed, the provision for such an event will be a harmless
superfluity only in the Constitution. But who can say what
experiments may be produced by the caprice of particular States,
by the ambition of enterprising leaders, or by the intrigues and
influence of foreign powers? To the second question it may be
answered, that if the general government should interpose by
virtue of this constitutional authority, it will be, of course,
bound to pursue the authority. But the authority extends no
further than to a GUARANTY of a republican form of government,
which supposes a pre-existing government of the form which is to
be guaranteed. As long, therefore, as the existing republican
forms are continued by the States, they are guaranteed by the
federal Constitution. Whenever the States may choose to
substitute other republican forms, they have a right to do so,
and to claim the federal guaranty for the latter. The only
restriction imposed on them is, that they shall not exchange
republican for antirepublican Constitutions; a restriction
which, it is presumed, will hardly be considered as a grievance.
A protection against invasion is due from every society to the
parts composing it. The latitude of the expression here used
seems to secure each State, not only against foreign hostility,
but against ambitious or vindictive enterprises of its more
powerful neighbors. The history, both of ancient and modern
confederacies, proves that the weaker members of the union ought
not to be insensible to the policy of this article. Protection
against domestic violence is added with equal propriety. It has
been remarked, that even among the Swiss cantons, which, properly
speaking, are not under one government, provision is made for
this object; and the history of that league informs us that
mutual aid is frequently claimed and afforded; and as well by
the most democratic, as the other cantons. A recent and
well-known event among ourselves has warned us to be prepared for
emergencies of a like nature. At first view, it might seem not
to square with the republican theory, to suppose, either that a
majority have not the right, or that a minority will have the
force, to subvert a government; and consequently, that the
federal interposition can never be required, but when it would be
improper. But theoretic reasoning, in this as in most other
cases, must be qualified by the lessons of practice. Why may not
illicit combinations, for purposes of violence, be formed as
well by a majority of a State, especially a small State as by a
majority of a county, or a district of the same State; and if
the authority of the State ought, in the latter case, to protect
the local magistracy, ought not the federal authority, in the
former, to support the State authority? Besides, there are
certain parts of the State constitutions which are so interwoven
with the federal Constitution, that a violent blow cannot be
given to the one without communicating the wound to the other.
Insurrections in a State will rarely induce a federal
interposition, unless the number concerned in them bear some
proportion to the friends of government. It will be much better
that the violence in such cases should be repressed by the
superintending power, than that the majority should be left to
maintain their cause by a bloody and obstinate contest. The
existence of a right to interpose, will generally prevent the
necessity of exerting it. Is it true that force and right are
necessarily on the same side in republican governments? May not
the minor party possess such a superiority of pecuniary
resources, of military talents and experience, or of secret
succors from foreign powers, as will render it superior also in
an appeal to the sword? May not a more compact and advantageous
position turn the scale on the same side, against a superior
number so situated as to be less capable of a prompt and
collected exertion of its strength? Nothing can be more
chimerical than to imagine that in a trial of actual force,
victory may be calculated by the rules which prevail in a census
of the inhabitants, or which determine the event of an election!
May it not happen, in fine, that the minority of CITIZENS may
become a majority of PERSONS, by the accession of alien
residents, of a casual concourse of adventurers, or of those whom
the constitution of the State has not admitted to the rights of
suffrage? I take no notice of an unhappy species of population
abounding in some of the States, who, during the calm of regular
government, are sunk below the level of men; but who, in the
tempestuous scenes of civil violence, may emerge into the human
character, and give a superiority of strength to any party with
which they may associate themselves. In cases where it may be
doubtful on which side justice lies, what better umpires could
be desired by two violent factions, flying to arms, and tearing a
State to pieces, than the representatives of confederate States,
not heated by the local flame? To the impartiality of judges,
they would unite the affection of friends. Happy would it be if
such a remedy for its infirmities could be enjoyed by all free
governments; if a project equally effectual could be established
for the universal peace of mankind! Should it be asked, what is
to be the redress for an insurrection pervading all the States,
and comprising a superiority of the entire force, though not a
constitutional right? the answer must be, that such a case, as
it would be without the compass of human remedies, so it is
fortunately not within the compass of human probability; and
that it is a sufficient recommendation of the federal
Constitution, that it diminishes the risk of a calamity for which
no possible constitution can provide a cure. Among the
advantages of a confederate republic enumerated by Montesquieu,
an important one is, ``that should a popular insurrection happen
in one of the States, the others are able to quell it. Should
abuses creep into one part, they are reformed by those that
remain sound. ''7. ``To consider all debts contracted, and
engagements entered into, before the adoption of this
Constitution, as being no less valid against the United States,
under this Constitution, than under the Confederation. ''This
can only be considered as a declaratory proposition; and may have
been inserted, among other reasons, for the satisfaction of the
foreign creditors of the United States, who cannot be strangers
to the pretended doctrine, that a change in the political form of
civil society has the magical effect of dissolving its moral
obligations. Among the lesser criticisms which have been
exercised on the Constitution, it has been remarked that the
validity of engagements ought to have been asserted in favor of
the United States, as well as against them; and in the spirit
which usually characterizes little critics, the omission has been
transformed and magnified into a plot against the national
rights. The authors of this discovery may be told, what few
others need to be informed of, that as engagements are in their
nature reciprocal, an assertion of their validity on one side,
necessarily involves a validity on the other side; and that as
the article is merely declaratory, the establishment of the
principle in one case is sufficient for every case. They may be
further told, that every constitution must limit its precautions
to dangers that are not altogether imaginary; and that no real
danger can exist that the government would DARE, with, or even
without, this constitutional declaration before it, to remit the
debts justly due to the public, on the pretext here condemned. 8.
``To provide for amendments to be ratified by three fourths of
the States under two exceptions only. ''That useful alterations
will be suggested by experience, could not but be foreseen. It
was requisite, therefore, that a mode for introducing them should
be provided. The mode preferred by the convention seems to be
stamped with every mark of propriety. It guards equally against
that extreme facility, which would render the Constitution too
mutable; and that extreme difficulty, which might perpetuate its
discovered faults. It, moreover, equally enables the general and
the State governments to originate the amendment of errors, as
they may be pointed out by the experience on one side, or on the
other. The exception in favor of the equality of suffrage in the
Senate, was probably meant as a palladium to the residuary
sovereignty of the States, implied and secured by that principle
of representation in one branch of the legislature; and was
probably insisted on by the States particularly attached to that
equality. The other exception must have been admitted on the same
considerations which produced the privilege defended by it. 9.
``The ratification of the conventions of nine States shall be
sufficient for the establishment of this Constitution between the
States, ratifying the same. ''This article speaks for itself.
The express authority of the people alone could give due validity
to the Constitution. To have required the unanimous ratification
of the thirteen States, would have subjected the essential
interests of the whole to the caprice or corruption of a single
member. It would have marked a want of foresight in the
convention, which our own experience would have rendered
inexcusable. Two questions of a very delicate nature present
themselves on this occasion: 1. On what principle the
Confederation, which stands in the solemn form of a compact among
the States, can be superseded without the unanimous consent of
the parties to it? 2. What relation is to subsist between the
nine or more States ratifying the Constitution, and the remaining
few who do not become parties to it? The first question is
answered at once by recurring to the absolute necessity of the
case; to the great principle of self-preservation; to the
transcendent law of nature and of nature's God, which declares
that the safety and happiness of society are the objects at which
all political institutions aim, and to which all such
institutions must be sacrificed. PERHAPS, also, an answer may be
found without searching beyond the principles of the compact
itself. It has been heretofore noted among the defects of the
Confederation, that in many of the States it had received no
higher sanction than a mere legislative ratification. The
principle of reciprocality seems to require that its obligation
on the other States should be reduced to the same standard. A
compact between independent sovereigns, founded on ordinary acts
of legislative authority, can pretend to no higher validity than
a league or treaty between the parties. It is an established
doctrine on the subject of treaties, that all the articles are
mutually conditions of each other; that a breach of any one
article is a breach of the whole treaty; and that a breach,
committed by either of the parties, absolves the others, and
authorizes them, if they please, to pronounce the compact
violated and void. Should it unhappily be necessary to appeal to
these delicate truths for a justification for dispensing with
the consent of particular States to a dissolution of the federal
pact, will not the complaining parties find it a difficult task
to answer the MULTIPLIED and IMPORTANT infractions with which
they may be confronted? The time has been when it was incumbent
on us all to veil the ideas which this paragraph exhibits. The
scene is now changed, and with it the part which the same motives
dictate. The second question is not less delicate; and the
flattering prospect of its being merely hypothetical forbids an
overcurious discussion of it. It is one of those cases which must
be left to provide for itself. In general, it may be observed,
that although no political relation can subsist between the
assenting and dissenting States, yet the moral relations will
remain uncancelled. The claims of justice, both on one side and
on the other, will be in force, and must be fulfilled; the
rights of humanity must in all cases be duly and mutually
respected; whilst considerations of a common interest, and,
above all, the remembrance of the endearing scenes which are
past, and the anticipation of a speedy triumph over the obstacles
to reunion, will, it is hoped, not urge in vain MODERATION on one
side, and PRUDENCE on the other. 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.
END QUOTE

QUOTE
FEDERALIST No. 45

The Alleged Danger From the Powers of the Union to the State
Governments Considered
For the Independent Fournal.

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 government
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.
END QUOTE

QUOTE
FEDERALIST No. 47

The Particular Structure of the New Government and the
Distribution of Power Among Its Different Parts
From the New York Packet. Friday, February 1, 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; SECONDLY, in
most of the other instances, they conformed either to the
declared or the known sentiments of the legislative department;
THIRDLY, 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
From the New York Packet. Tuesday, February 5, 1788.

HAMILTON OR 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.
END QUOTE

QUOTE
FEDERALIST No. 50

Periodical Appeals to the People Considered
From the New York Packet. Tuesday, February 5, 1788.

HAMILTON OR 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.
Secondly. 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. Thirdly. 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.
Fourthly. 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.
Fifthly. 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
From the New York Packet. Friday, February 8, 1788.

HAMILTON OR 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.
END QUOTE

QUOTE
FEDERALIST No. 52

The House of Representatives
From the New York Packet. Friday, February 8, 1788.

HAMILTON OR 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)
From the New York Packet. Tuesday, February 12, 1788.

HAMILTON OR 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 t e 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.

HAMILTON OR 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.
END QUOTE

QUOTE
FEDERALIST No. 55

The Total Number of the House of Representatives
From the New York Packet. Friday, February 15, 1788.

HAMILTON OR 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)
From the New York Packet. Tuesday, February 19, 1788.

HAMILTON OR 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. 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. Burgh's ``Political
Disquisitions. ''
END QUOTE

QUOTE
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.

HAMILTON OR 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

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.
END QUOTE

QUOTE
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. Ist clause, 4th
section, of the Ist article.


FEDERALIST No. 60

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:
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 Ustill 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.
END QUOTE

QUOTE
FEDERALIST No. 62

The Senate
For the Independent Journal.

HAMILTON OR 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.
Secondly. 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.
Thirdly. 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.
Fourthly. 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.

HAMILTON OR 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 any thing 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 New York Packet.
Friday, March 7, 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.
END QUOTE

QUOTE
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 New York Packet.
Tuesday, March 11, 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.
In that of New Jersey, also, the final judiciary authority is in
a branch of the legislature. In New Hampshire, Massachusetts,
Pennsylvanis, and South Carolina, one branch of the legislature is
the court for the trial of impeachments.
END QUOTE

QUOTE
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
atten ed 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 party1; 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 ?? 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 Constitution2, 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.''
Secondly. 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. Thirdly. 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 lastly, 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 I.


FEDERALIST No. 68

The Mode of Electing the President
From the New York Packet.
Friday, March 14, 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.
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.


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. Secondly. 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. Thirdly.
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.
Fourthly. 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
jurist2 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.

*There are two slightly different versions of No. 70 included here.
END QUOTE

QUOTE
FEDERALIST No. 70

The Executive Department Further Considered
From the New York Packet.
Tuesday, March 18, 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 se se, 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.
``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, secondly, 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.

*There are two slightly different versions of No. 70 included here.

FEDERALIST No. 70

The Executive Department Further Considered
From the New York Packet.
Tuesday, March 18, 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 se se, 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.
``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, secondly, 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.


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
innovation1 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 New York Packet.
Friday, March 21, 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.
END QUOTE

QUOTE
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,
whether, in a limited Constitution, that power could be delegated by
law; and in the second place, that it would generally be impolitic
beforehand to take any step which might hold out the prospect of
impunity. A proceeding of this kind, out of the usual course, would
be likely to be construed into an argument of timidity or of
weakness, and would have a tendency to embolden guilt.
PUBLIUS.


FEDERALIST No. 75
The Treaty-Making Power of the Executive
For the Independent Journal.

HAMILTON

To the People of the State of New York:
THE President is to have power, ``by and with the advice and
consent of the Senate, to make treaties, provided two thirds of the
senators present concur.''
Though this provision has been assailed, on different grounds,
with no small degree of vehemence, I scruple not to declare my firm
persuasion, that it is one of the best digested and most
unexceptionable parts of the plan. One ground of objection is the
trite topic of the intermixture of powers; some contending that the
President ought alone to possess the power of making treaties;
others, that it ought to have been exclusively deposited in the
Senate. Another source of objection is derived from the small
number of persons by whom a treaty may be made. Of those who
espouse this objection, a part are of opinion that the House of
Representatives ought to have been associated in the business, while
another part seem to think that nothing more was necessary than to
have substituted two thirds of ALL the members of the Senate, to two
thirds of the members PRESENT. As I flatter myself the observations
made in a preceding number upon this part of the plan must have
sufficed to place it, to a discerning eye, in a very favorable
light, I shall here content myself with offering only some
supplementary remarks, principally with a view to the objections
which have been just stated.
With regard to the intermixture of powers, I shall rely upon the
explanations already given in other places, of the true sense of the
rule upon which that objection is founded; and shall take it for
granted, as an inference from them, that the union of the Executive
with the Senate, in the article of treaties, is no infringement of
that rule. I venture to add, that the particular nature of the
power of making treaties indicates a peculiar propriety in that
union. Though several writers on the subject of government place
that power in the class of executive authorities, yet this is
evidently an arbitrary disposition; for if we attend carefully to
its operation, it will be found to partake more of the legislative
than of the executive character, though it does not seem strictly to
fall within the definition of either of them. The essence of the
legislative authority is to enact laws, or, in other words, to
prescribe rules for the regulation of the society; while the
execution of the laws, and the employment of the common strength,
either for this purpose or for the common defense, seem to comprise
all the functions of the executive magistrate. The power of making
treaties is, plainly, neither the one nor the other. It relates
neither to the execution of the subsisting laws, nor to the enaction
of new ones; and still less to an exertion of the common strength.
Its objects are CONTRACTS with foreign nations, which have the
force of law, but derive it from the obligations of good faith.
They are not rules prescribed by the sovereign to the subject, but
agreements between sovereign and sovereign. The power in question
seems therefore to form a distinct department, and to belong,
properly, neither to the legislative nor to the executive. The
qualities elsewhere detailed as indispensable in the management of
foreign negotiations, point out the Executive as the most fit agent
in those transactions; while the vast importance of the trust, and
the operation of treaties as laws, plead strongly for the
participation of the whole or a portion of the legislative body in
the office of making them.
However proper or safe it may be in governments where the
executive magistrate is an hereditary monarch, to commit to him the
entire power of making treaties, it would be utterly unsafe and
improper to intrust that power to an elective magistrate of four
years' duration. It has been remarked, upon another occasion, and
the remark is unquestionably just, that an hereditary monarch,
though often the oppressor of his people, has personally too much
stake in the government to be in any material danger of being
corrupted by foreign powers. But a man raised from the station of a
private citizen to the rank of chief magistrate, possessed of a
moderate or slender fortune, and looking forward to a period not
very remote when he may probably be obliged to return to the station
from which he was taken, might sometimes be under temptations to
sacrifice his duty to his interest, which it would require
superlative virtue to withstand. An avaricious man might be tempted
to betray the interests of the state to the acquisition of wealth.
An ambitious man might make his own aggrandizement, by the aid of a
foreign power, the price of his treachery to his constituents. The
history of human conduct does not warrant that exalted opinion of
human virtue which would make it wise in a nation to commit
interests of so delicate and momentous a kind, as those which
concern its intercourse with the rest of the world, to the sole
disposal of a magistrate created and circumstanced as would be a
President of the United States.
To have intrusted the power of making treaties to the Senate
alone, would have been to relinquish the benefits of the
constitutional agency of the President in the conduct of foreign
negotiations. It is true that the Senate would, in that case, have
the option of employing him in this capacity, but they would also
have the option of letting it alone, and pique or cabal might induce
the latter rather than the former. Besides this, the ministerial
servant of the Senate could not be expected to enjoy the confidence
and respect of foreign powers in the same degree with the
constitutional representatives of the nation, and, of course, would
not be able to act with an equal degree of weight or efficacy.
While the Union would, from this cause, lose a considerable
advantage in the management of its external concerns, the people
would lose the additional security which would result from the
co-operation of the Executive. Though it would be imprudent to
confide in him solely so important a trust, yet it cannot be doubted
that his participation would materially add to the safety of the
society. It must indeed be clear to a demonstration that the joint
possession of the power in question, by the President and Senate,
would afford a greater prospect of security, than the separate
possession of it by either of them. And whoever has maturely
weighed the circumstances which must concur in the appointment of a
President, will be satisfied that the office will always bid fair to
be filled by men of such characters as to render their concurrence
in the formation of treaties peculiarly desirable, as well on the
score of wisdom, as on that of integrity.
The remarks made in a former number, which have been alluded to
in another part of this paper, will apply with conclusive force
against the admission of the House of Representatives to a share in
the formation of treaties. The fluctuating and, taking its future
increase into the account, the multitudinous composition of that
body, forbid us to expect in it those qualities which are essential
to the proper execution of such a trust. Accurate and comprehensive
knowledge of foreign politics; a steady and systematic adherence to
the same views; a nice and uniform sensibility to national
character; decision, SECRECY, and despatch, are incompatible with
the genius of a body so variable and so numerous. The very
complication of the business, by introducing a necessity of the
concurrence of so many different bodies, would of itself afford a
solid objection. The greater frequency of the calls upon the House
of Representatives, and the greater length of time which it would
often be necessary to keep them together when convened, to obtain
their sanction in the progressive stages of a treaty, would be a
source of so great inconvenience and expense as alone ought to
condemn the project.
The only objection which remains to be canvassed, is that which
would substitute the proportion of two thirds of all the members
composing the senatorial body, to that of two thirds of the members
PRESENT. It has been shown, under the second head of our inquiries,
that all provisions which require more than the majority of any body
to its resolutions, have a direct tendency to embarrass the
operations of the government, and an indirect one to subject the
sense of the majority to that of the minority. This consideration
seems sufficient to determine our opinion, that the convention have
gone as far in the endeavor to secure the advantage of numbers in
the formation of treaties as could have been reconciled either with
the activity of the public councils or with a reasonable regard to
the major sense of the community. If two thirds of the whole number
of members had been required, it would, in many cases, from the
non-attendance of a part, amount in practice to a necessity of
unanimity. And the history of every political establishment in
which this principle has prevailed, is a history of impotence,
perplexity, and disorder. Proofs of this position might be adduced
from the examples of the Roman Tribuneship, the Polish Diet, and the
States-General of the Netherlands, did not an example at home render
foreign precedents unnecessary.
To require a fixed proportion of the whole body would not, in
all probability, contribute to the advantages of a numerous agency,
better then merely to require a proportion of the attending members.
The former, by making a determinate number at all times requisite
to a resolution, diminishes the motives to punctual attendance. The
latter, by making the capacity of the body to depend on a PROPORTION
which may be varied by the absence or presence of a single member,
has the contrary effect. And as, by promoting punctuality, it tends
to keep the body complete, there is great likelihood that its
resolutions would generally be dictated by as great a number in this
case as in the other; while there would be much fewer occasions of
delay. It ought not to be forgotten that, under the existing
Confederation, two members MAY, and usually DO, represent a State;
whence it happens that Congress, who now are solely invested with
ALL THE POWERS of the Union, rarely consist of a greater number of
persons than would compose the intended Senate. If we add to this,
that as the members vote by States, and that where there is only a
single member present from a State, his vote is lost, it will
justify a supposition that the active voices in the Senate, where
the members are to vote individually, would rarely fall short in
number of the active voices in the existing Congress. When, in
addition to these considerations, we take into view the co-operation
of the President, we shall not hesitate to infer that the people of
America would have greater security against an improper use of the
power of making treaties, under the new Constitution, than they now
enjoy under the Confederation. And when we proceed still one step
further, and look forward to the probable augmentation of the
Senate, by the erection of new States, we shall not only perceive
ample ground of confidence in the sufficiency of the members to
whose agency that power will be intrusted, but we shall probably be
led to conclude that a body more numerous than the Senate would be
likely to become, would be very little fit for the proper discharge
of the trust.
PUBLIUS.
END QUOTE

END QUOTE
FEDERALIST No. 76
The Appointing Power of the Executive
From the New York Packet.
Tuesday, April 1, 1788.

HAMILTON

To the People of the State of New York:
THE President is ``to NOMINATE, and, by and with the advice and
consent of the Senate, to appoint ambassadors, other public
ministers and consuls, judges of the Supreme Court, and all other
officers of the United States whose appointments are not otherwise
provided for in the Constitution. But the Congress may by law vest
the appointment of such inferior officers as they think proper, in
the President alone, or in the courts of law, or in the heads of
departments. The President shall have power to fill up ALL
VACANCIES which may happen DURING THE RECESS OF THE SENATE, by
granting commissions which shall EXPIRE at the end of their next
session.''
It has been observed in a former paper, that ``the true test of
a good government is its aptitude and tendency to produce a good
administration.'' If the justness of this observation be admitted,
the mode of appointing the officers of the United States contained
in the foregoing clauses, must, when examined, be allowed to be
entitled to particular commendation. It is not easy to conceive a
plan better calculated than this to promote a judicious choice of
men for filling the offices of the Union; and it will not need
proof, that on this point must essentially depend the character of
its administration.
It will be agreed on all hands, that the power of appointment,
in ordinary cases, ought to be modified in one of three ways. It
ought either to be vested in a single man, or in a SELECT assembly
of a moderate number; or in a single man, with the concurrence of
such an assembly. The exercise of it by the people at large will be
readily admitted to be impracticable; as waiving every other
consideration, it would leave them little time to do anything else.
When, therefore, mention is made in the subsequent reasonings of an
assembly or body of men, what is said must be understood to relate
to a select body or assembly, of the description already given. The
people collectively, from their number and from their dispersed
situation, cannot be regulated in their movements by that systematic
spirit of cabal and intrigue, which will be urged as the chief
objections to reposing the power in question in a body of men.
Those who have themselves reflected upon the subject, or who
have attended to the observations made in other parts of these
papers, in relation to the appointment of the President, will, I
presume, agree to the position, that there would always be great
probability of having the place supplied by a man of abilities, at
least respectable. Premising this, I proceed to lay it down as a
rule, that one man of discernment is better fitted to analyze and
estimate the peculiar qualities adapted to particular offices, than
a body of men of equal or perhaps even of superior discernment.
The sole and undivided responsibility of one man will naturally
beget a livelier sense of duty and a more exact regard to reputation.
He will, on this account, feel himself under stronger obligations,
and more interested to investigate with care the qualities requisite
to the stations to be filled, and to prefer with impartiality the
persons who may have the fairest pretensions to them. He will have
FEWER personal attachments to gratify, than a body of men who may
each be supposed to have an equal number; and will be so much the
less liable to be misled by the sentiments of friendship and of
affection. A single well-directed man, by a single understanding,
cannot be distracted and warped by that diversity of views,
feelings, and interests, which frequently distract and warp the
resolutions of a collective body. There is nothing so apt to
agitate the passions of mankind as personal considerations whether
they relate to ourselves or to others, who are to be the objects of
our choice or preference. Hence, in every exercise of the power of
appointing to offices, by an assembly of men, we must expect to see
a full display of all the private and party likings and dislikes,
partialities and antipathies, attachments and animosities, which are
felt by those who compose the assembly. The choice which may at any
time happen to be made under such circumstances, will of course be
the result either of a victory gained by one party over the other,
or of a compromise between the parties. In either case, the
intrinsic merit of the candidate will be too often out of sight. In
the first, the qualifications best adapted to uniting the suffrages
of the party, will be more considered than those which fit the
person for the station. In the last, the coalition will commonly
turn upon some interested equivalent: ``Give us the man we wish for
this office, and you shall have the one you wish for that.'' This
will be the usual condition of the bargain. And it will rarely
happen that the advancement of the public service will be the
primary object either of party victories or of party negotiations.
The truth of the principles here advanced seems to have been
felt by the most intelligent of those who have found fault with the
provision made, in this respect, by the convention. They contend
that the President ought solely to have been authorized to make the
appointments under the federal government. But it is easy to show,
that every advantage to be expected from such an arrangement would,
in substance, be derived from the power of NOMINATION, which is
proposed to be conferred upon him; while several disadvantages
which might attend the absolute power of appointment in the hands of
that officer would be avoided. In the act of nomination, his
judgment alone would be exercised; and as it would be his sole duty
to point out the man who, with the approbation of the Senate, should
fill an office, his responsibility would be as complete as if he
were to make the final appointment. There can, in this view, be no
difference others, who are to be the objects of our choice or
preference. Hence, in every exercise of the power of appointing to
offices, by an assembly of men, we must expect to see a full display
of all the private and party likings and dislikes, partialities and
antipathies, attachments and animosities, which are felt by those
who compose the assembly. The choice which may at any time happen
to be made under such circumstances, will of course be the result
either of a victory gained by one party over the other, or of a
compromise between the parties. In either case, the intrinsic merit
of the candidate will be too often out of sight. In the first, the
qualifications best adapted to uniting the suffrages of the party,
will be more considered than those which fit the person for the
station. In the last, the coalition will commonly turn upon some
interested equivalent: ``Give us the man we wish for this office,
and you shall have the one you wish for that.'' This will be the
usual condition of the bargain. And it will rarely happen that the
advancement of the public service will be the primary object either
of party victories or of party negotiations.
The truth of the principles here advanced seems to have been
felt by the most intelligent of those who have found fault with the
provision made, in this respect, by the convention. They contend
that the President ought solely to have been authorized to make the
appointments under the federal government. But it is easy to show,
that every advantage to be expected from such an arrangement would,
in substance, be derived from the power of NOMINATION, which is
proposed to be conferred upon him; while several disadvantages
which might attend the absolute power of appointment in the hands of
that officer would be avoided. In the act of nomination, his
judgment alone would be exercised; and as it would be his sole duty
to point out the man who, with the approbation of the Senate, should
fill an office, his responsibility would be as complete as if he
were to make the final appointment. There can, in this view, be no
difference between nominating and appointing. The same motives
which would influence a proper discharge of his duty in one case,
would exist in the other. And as no man could be appointed but on
his previous nomination, every man who might be appointed would be,
in fact, his choice.
But might not his nomination be overruled? I grant it might,
yet this could only be to make place for another nomination by
himself. The person ultimately appointed must be the object of his
preference, though perhaps not in the first degree. It is also not
very probable that his nomination would often be overruled. The
Senate could not be tempted, by the preference they might feel to
another, to reject the one proposed; because they could not assure
themselves, that the person they might wish would be brought forward
by a second or by any subsequent nomination. They could not even be
certain, that a future nomination would present a candidate in any
degree more acceptable to them; and as their dissent might cast a
kind of stigma upon the individual rejected, and might have the
appearance of a reflection upon the judgment of the chief
magistrate, it is not likely that their sanction would often be
refused, where there were not special and strong reasons for the
refusal.
To what purpose then require the co-operation of the Senate? I
answer, that the necessity of their concurrence would have a
powerful, though, in general, a silent operation. It would be an
excellent check upon a spirit of favoritism in the President, and
would tend greatly to prevent the appointment of unfit characters
from State prejudice, from family connection, from personal
attachment, or from a view to popularity. In addition to this, it
would be an efficacious source of stability in the administration.
It will readily be comprehended, that a man who had himself the
sole disposition of offices, would be governed much more by his
private inclinations and interests, than when he was bound to submit
the propriety of his choice to the discussion and determination of a
different and independent body, and that body an entier branch of
the legislature. The possibility of rejection would be a strong
motive to care in proposing. The danger to his own reputation, and,
in the case of an elective magistrate, to his political existence,
from betraying a spirit of favoritism, or an unbecoming pursuit of
popularity, to the observation of a body whose opinion would have
great weight in forming that of the public, could not fail to
operate as a barrier to the one and to the other. He would be both
ashamed and afraid to bring forward, for the most distinguished or
lucrative stations, candidates who had no other merit than that of
coming from the same State to which he particularly belonged, or of
being in some way or other personally allied to him, or of
possessing the necessary insignificance and pliancy to render them
the obsequious instruments of his pleasure.
To this reasoning it has been objected that the President, by
the influence of the power of nomination, may secure the
complaisance of the Senate to his views. This supposition of
universal venalty in human nature is little less an error in
political reasoning, than the supposition of universal rectitude.
The institution of delegated power implies, that there is a portion
of virtue and honor among mankind, which may be a reasonable
foundation of confidence; and experience justifies the theory. It
has been found to exist in the most corrupt periods of the most
corrupt governments. The venalty of the British House of Commons
has been long a topic of accusation against that body, in the
country to which they belong as well as in this; and it cannot be
doubted that the charge is, to a considerable extent, well founded.
But it is as little to be doubted, that there is always a large
proportion of the body, which consists of independent and
public-spirited men, who have an influential weight in the councils
of the nation. Hence it is (the present reign not excepted) that
the sense of that body is often seen to control the inclinations of
the monarch, both with regard to men and to measures. Though it
might therefore be allowable to suppose that the Executive might
occasionally influence some individuals in the Senate, yet the
supposition, that he could in general purchase the integrity of the
whole body, would be forced and improbable. A man disposed to view
human nature as it is, without either flattering its virtues or
exaggerating its vices, will see sufficient ground of confidence in
the probity of the Senate, to rest satisfied, not only that it will
be impracticable to the Executive to corrupt or seduce a majority of
its members, but that the necessity of its co-operation, in the
business of appointments, will be a considerable and salutary
restraint upon the conduct of that magistrate. Nor is the integrity
of the Senate the only reliance. The Constitution has provided some
important guards against the danger of executive influence upon the
legislative body: it declares that ``No senator or representative
shall during the time FOR WHICH HE WAS ELECTED, be appointed to any
civil office under the United States, which shall have been created,
or the emoluments whereof shall have been increased, during such
time; and no person, holding any office under the United States,
shall be a member of either house during his continuance in
office.''
PUBLIUS.


FEDERALIST No. 77

The Appointing Power Continued and Other Powers of the Executive
Considered
From the New York Packet.
Friday, April 4, 1788.

HAMILTON

To the People of the State of New York:
IT HAS been mentioned as one of the advantages to be expected
from the co-operation of the Senate, in the business of
appointments, that it would contribute to the stability of the
administration. The consent of that body would be necessary to
displace as well as to appoint. A change of the Chief Magistrate,
therefore, would not occasion so violent or so general a revolution
in the officers of the government as might be expected, if he were
the sole disposer of offices. Where a man in any station had given
satisfactory evidence of his fitness for it, a new President would
be restrained from attempting a change in favor of a person more
agreeable to him, by the apprehension that a discountenance of the
Senate might frustrate the attempt, and bring some degree of
discredit upon himself. Those who can best estimate the value of a
steady administration, will be most disposed to prize a provision
which connects the official existence of public men with the
approbation or disapprobation of that body which, from the greater
permanency of its own composition, will in all probability be less
subject to inconstancy than any other member of the government.
To this union of the Senate with the President, in the article
of appointments, it has in some cases been suggested that it would
serve to give the President an undue influence over the Senate, and
in others that it would have an opposite tendency, a strong proof
that neither suggestion is true.
To state the first in its proper form, is to refute it. It
amounts to this: the President would have an improper INFLUENCE
OVER the Senate, because the Senate would have the power of
RESTRAINING him. This is an absurdity in terms. It cannot admit of
a doubt that the entire power of appointment would enable him much
more effectually to establish a dangerous empire over that body,
than a mere power of nomination subject to their control.
Let us take a view of the converse of the proposition: ``the
Senate would influence the Executive.'' As I have had occasion to
remark in several other instances, the indistinctness of the
objection forbids a precise answer. In what manner is this
influence to be exerted? In relation to what objects? The power of
influencing a person, in the sense in which it is here used, must
imply a power of conferring a benefit upon him. How could the
Senate confer a benefit upon the President by the manner of
employing their right of negative upon his nominations? If it be
said they might sometimes gratify him by an acquiescence in a
favorite choice, when public motives might dictate a different
conduct, I answer, that the instances in which the President could
be personally interested in the result, would be too few to admit of
his being materially affected by the compliances of the Senate. The
POWER which can ORIGINATE the disposition of honors and emoluments,
is more likely to attract than to be attracted by the POWER which
can merely obstruct their course. If by influencing the President
be meant RESTRAINING him, this is precisely what must have been
intended. And it has been shown that the restraint would be
salutary, at the same time that it would not be such as to destroy a
single advantage to be looked for from the uncontrolled agency of
that Magistrate. The right of nomination would produce all the good
of that of appointment, and would in a great measure avoid its evils.
Upon a comparison of the plan for the appointment of the
officers of the proposed government with that which is established
by the constitution of this State, a decided preference must be
given to the former. In that plan the power of nomination is
unequivocally vested in the Executive. And as there would be a
necessity for submitting each nomination to the judgment of an
entire branch of the legislature, the circumstances attending an
appointment, from the mode of conducting it, would naturally become
matters of notoriety; and the public would be at no loss to
determine what part had been performed by the different actors. The
blame of a bad nomination would fall upon the President singly and
absolutely. The censure of rejecting a good one would lie entirely
at the door of the Senate; aggravated by the consideration of their
having counteracted the good intentions of the Executive. If an ill
appointment should be made, the Executive for nominating, and the
Senate for approving, would participate, though in different
degrees, in the opprobrium and disgrace.
The reverse of all this characterizes the manner of appointment
in this State. The council of appointment consists of from three to
five persons, of whom the governor is always one. This small body,
shut up in a private apartment, impenetrable to the public eye,
proceed to the execution of the trust committed to them. It is
known that the governor claims the right of nomination, upon the
strength of some ambiguous expressions in the constitution; but it
is not known to what extent, or in what manner he exercises it; nor
upon what occasions he is contradicted or opposed. The censure of a
bad appointment, on account of the uncertainty of its author, and
for want of a determinate object, has neither poignancy nor duration.
And while an unbounded field for cabal and intrigue lies open, all
idea of responsibility is lost. The most that the public can know,
is that the governor claims the right of nomination; that TWO out
of the inconsiderable number of FOUR men can too often be managed
without much difficulty; that if some of the members of a
particular council should happen to be of an uncomplying character,
it is frequently not impossible to get rid of their opposition by
regulating the times of meeting in such a manner as to render their
attendance inconvenient; and that from whatever cause it may
proceed, a great number of very improper appointments are from time
to time made. Whether a governor of this State avails himself of
the ascendant he must necessarily have, in this delicate and
important part of the administration, to prefer to offices men who
are best qualified for them, or whether he prostitutes that
advantage to the advancement of persons whose chief merit is their
implicit devotion to his will, and to the support of a despicable
and dangerous system of personal influence, are questions which,
unfortunately for the community, can only be the subjects of
speculation and conjecture.
Every mere council of appointment, however constituted, will be
a conclave, in which cabal and intrigue will have their full scope.
Their number, without an unwarrantable increase of expense, cannot
be large enough to preclude a facility of combination. And as each
member will have his friends and connections to provide for, the
desire of mutual gratification will beget a scandalous bartering of
votes and bargaining for places. The private attachments of one man
might easily be satisfied; but to satisfy the private attachments
of a dozen, or of twenty men, would occasion a monopoly of all the
principal employments of the government in a few families, and would
lead more directly to an aristocracy or an oligarchy than any
measure that could be contrived. If, to avoid an accumulation of
offices, there was to be a frequent change in the persons who were
to compose the council, this would involve the mischiefs of a
mutable administration in their full extent. Such a council would
also be more liable to executive influence than the Senate, because
they would be fewer in number, and would act less immediately under
the public inspection. Such a council, in fine, as a substitute for
the plan of the convention, would be productive of an increase of
expense, a multiplication of the evils which spring from favoritism
and intrigue in the distribution of public honors, a decrease of
stability in the administration of the government, and a diminution
of the security against an undue influence of the Executive. And
yet such a council has been warmly contended for as an essential
amendment in the proposed Constitution.
I could not with propriety conclude my observations on the
subject of appointments without taking notice of a scheme for which
there have appeared some, though but few advocates; I mean that of
uniting the House of Representatives in the power of making them. I
shall, however, do little more than mention it, as I cannot imagine
that it is likely to gain the countenance of any considerable part
of the community. A body so fluctuating and at the same time so
numerous, can never be deemed proper for the exercise of that power.
Its unfitness will appear manifest to all, when it is recollected
that in half a century it may consist of three or four hundred
persons. All the advantages of the stability, both of the Executive
and of the Senate, would be defeated by this union, and infinite
delays and embarrassments would be occasioned. The example of most
of the States in their local constitutions encourages us to
reprobate the idea.
The only remaining powers of the Executive are comprehended in
giving information to Congress of the state of the Union; in
recommending to their consideration such measures as he shall judge
expedient; in convening them, or either branch, upon extraordinary
occasions; in adjourning them when they cannot themselves agree
upon the time of adjournment; in receiving ambassadors and other
public ministers; in faithfully executing the laws; and in
commissioning all the officers of the United States.
Except some cavils about the power of convening EITHER house of
the legislature, and that of receiving ambassadors, no objection has
been made to this class of authorities; nor could they possibly
admit of any. It required, indeed, an insatiable avidity for
censure to invent exceptions to the parts which have been excepted
to. In regard to the power of convening either house of the
legislature, I shall barely remark, that in respect to the Senate at
least, we can readily discover a good reason for it. AS this body
has a concurrent power with the Executive in the article of
treaties, it might often be necessary to call it together with a
view to this object, when it would be unnecessary and improper to
convene the House of Representatives. As to the reception of
ambassadors, what I have said in a former paper will furnish a
sufficient answer.
We have now completed a survey of the structure and powers of
the executive department, which, I have endeavored to show,
combines, as far as republican principles will admit, all the
requisites to energy. The remaining inquiry is: Does it also
combine the requisites to safety, in a republican sense, a due
dependence on the people, a due responsibility? The answer to this
question has been anticipated in the investigation of its other
characteristics, and is satisfactorily deducible from these
circumstances; from the election of the President once in four
years by persons immediately chosen by the people for that purpose;
and from his being at all times liable to impeachment, trial,
dismission from office, incapacity to serve in any other, and to
forfeiture of life and estate by subsequent prosecution in the
common course of law. But these precautions, great as they are, are
not the only ones which the plan of the convention has provided in
favor of the public security. In the only instances in which the
abuse of the executive authority was materially to be feared, the
Chief Magistrate of the United States would, by that plan, be
subjected to the control of a branch of the legislative body. What
more could be desired by an enlightened and reasonable people?
PUBLIUS.
END QUOTE